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HomeMy WebLinkAboutAgenda Packet City Council - 02/12/2013Corpus Christi aw 7 Meeting Agenda - Final- revised City Council Tuesday, February 12, 2013 11:30 AM 1201 Leopard Street Corpus Christi, TX 78401 cctexas.com 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 12:00 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 Nelda Martinez to call the meeting to order. B. Invocation to be given by Henry Williams, Elder, Corpus Christi Christian Fellowship. 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. 13- 000117 Proclamation declaring February 2013 as "Mission FitPossible Month" Proclamation declaring February 12, 2013 as "Leadership Corpus Christi Class 41 Day" Proclamation declaring February 17 - 23, 2013 as "National LULAC Week" Proclamation declaring February 17 - 23, 2013 as "National Engineers Week" Swearing in ceremony for newly appointed Municipal Court Judges Corpus Christi Page 1 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 F. PUBLIC COMMENT FROM THE AUDIENCE ON MATTERS NOT SCHEDULED ON THE AGENDA WILL BE HEARD AT APPROXIMATELY 12:00 P.M. PLEASE LIMIT PRESENTATIONS TO THREE MINUTES. A recording is made of the meeting; therefore, please speak into the microphone located at the podium and state your name and address. If you have a petition or other information pertaining to your subject, please present it to the City Secretary. PLEASE BE ADVISED THAT THE OPEN MEETINGS ACT PROHIBITS THE CITY COUNCIL FROM RESPONDING AND DISCUSSING YOUR COMMENTS AT LENGTH. THE LAW ONLY AUTHORIZES THEM TO DO THE FOLLOWING: 1. MAKE A STATEMENT OF FACTUAL INFORMATION. 2. RECITE AN EXISTING POLICY IN RESPONSE TO THE INQUIRY. 3. ADVISE THE CITIZEN THAT THIS SUBJECT WILL BE PLACED ON AN AGENDA AT A LATER DATE. PER CITY COUNCIL POLICY, NO COUNCIL MEMBER, STAFF PERSON, OR MEMBERS OF THE AUDIENCE SHALL BERATE, EMBARRASS, ACCUSE, OR SHOWANY 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. G. EXECUTIVE SESSION: (ITEMS 2 - 4) 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. 2. 13 -00079 Executive session pursuant to Section 551.087 of the Texas Government Code to deliberate regarding confidential commercial or financial information received from a business prospect that the City Council seeks to have locate, stay, or expand within the City and with which the City is conducting economic development negotiations and to deliberate possible offers of financial or other incentives to said business prospect, with possible discussion and action in open session. 3. 13- 000119 Executive session pursuant to Section 551.071(1)(A) of the Texas Government Code to consult with attorneys regarding Cause No. 13 -10- 00272 -CV, styled San Patricio Municipal Water District and South Texas WaterAuthority vs. City of Corpus Christi, presently pending appeal from the 319th District Court of Nueces County, Texas with possible discussion and action in open session. 4. 13- 000143 Executive session pusuant to Section 551.071(1)(A) of the Texas Government Code to consult with attorneys regarding Cause No. S -11 -6088 CV-13 styled City of Ingleside vs. City of Corpus Christi which is presently pending the 156th District Court of San Patricio County, Corpus Christi Page 2 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 Texas, with possible discussion and action in open session. I:�►�ill�l�j��'i� 5. 13- 000116 Approval of Meeting Minutes - January 29, 2013. Attachments: Minutes - January 29, 2013 I. BOARDS & COMMITTEE APPOINTMENTS: 6. 13- 000118 Advisory Committee on Community Pride Cable Communications Commission Committee for Persons with Disabilities Electrical Advisory Board Reinvestment Zone No. 3 Board Watershore and Beach Advisory Committee Attachments: Board Packet J. 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. K. CONSENT AGENDA: (ITEMS 7 -13) 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. 7. 13 -00068 Agreement with State to contribute right -of -way funds for ramp reversal project on South Padre Island Drive (SPID) to alleviate congestion at eastbound off ramps between Nile Drive and Ayers Street Resolution authorizing the City Manager, or designee, to execute an Agreement to Contribute Right of Way Funds with the Texas Department of Transportation (TXDOT) for the acquisition of certain rights of way and the relocating and adjusting of utilities within the project's scope of SH 358 (South Padre Island Drive) from Nile Drive to Ayers Street, with the City's participation in the amount of $950,000. (BOND 2012) Corpus Christi Page 3 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 Motion finding reasonable cause exists to delay completion of public improvements in accordance with Section 8.1.10.B of the Unified Development Code and authorizing the City Manager, or designee, to execute a deferment agreement with 15T Investments LLC ( "Developer /Owner "), in the amount of $221,846.54 for public wastewater and water improvements to the property located at the Southside of State Highway 44 East of Heinsohn Road and West of North Padre Island Drive, contingent upon receipt of a letter of credit approved by the City prior to the filing of the final plat by the Developer. Attachments: Agenda memo - Airport Industrial Block 13 Lot 2, Final, 02 -12 -2013 Agreement - Signed Airport Industrial Block 13 Lot 2 Deferment Agreement 9. 13 -00070 Amending Consulting Services Agreement with the Corpus Christi Convention and Visitors Bureau Motion authorizing the City Manager, or designee, to execute an Amended Consulting Services Agreement ( "Agreement ") with the Corpus Christi Convention and Visitors Bureau ( "CVB ") for a period ending July 31, 2015 Attachments: Agenda memo - CCCVB WM a i 1[ .1 7:i lI I T1 10. 12 -00909 Second Reading Ordinance - Lease Agreement for Arts and Education Center located at 2021 Agnes (1st Reading 1/8/13) Ordinance authorizing the City Manager, or his designee to execute a ten -year Lease Agreement with South Texas Institute for the Arts for the use of an approximately 1.37 acre tract including improvements located near intersection of Agnes Street at 18th Street, to be used to operate the Antonio E. Garcia Arts & Education Center; providing for severance; and providing for publication Corpus Christi Page 4 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 11 12 13 Attachments: Agenda memo - Garcia Art Center lease • • + • +• __ 21 • + • • for the Arts Cooperative Purchase Agreement for electronic archiving of construction blueprints Motion approving a contract for the electronic archiving of construction blueprints with MCCi, LLC of Tallahassee, Florida for a total expenditure of $76,779.70. The award is based on the cooperative purchasing agreement with the Texas Department of Information Resources (DI R). Funds are budgeted in the Development Services Fund for FY 2012 -2013. Attachments: Agenda memo - Electronic Archiving of Contruction Blueprints.pdf ff • + + • • R • • • Supply Agreements for food items for the Elderly Nutrition Program Motion approving supply agreements with the following companies for the following amounts in accordance with the Coastal Bend Council of Governments Bid Invitation No. CBCOG -13 -1 for food items which include canned and frozen fruit and vegetables; meats and condiments, for an estimated six month expenditure of $179,155.26. The terms of the contracts shall be for six months with options to extend for up to three additional months, subject to the approval of the Coastal Bend Council of Governments, the suppliers, and the City Manager or designee. Funds are available through the Meals on Wheels Grant. LaBatt Food Service Corpus Christi, Texas 144 Line Items $83,729.73 Performance Food Group Victoria, Texas 108 Line Items $95,425.53 Grand Total: $179,155.26 Attachments: Agenda memo - Food Items. pdf Municipal Lease Line of Credit to fund equipment and rolling stock replacement needs Motion approving a Municipal Lease Line of Credit with Frost Bank in accordance with Request for Proposal No. BI- 0040 -13 based on lowest responsible proposal for an estimated annual expenditure of $326,909.92. The term of the contract is for one year with options to extend for up to four additional one -year periods, subject to the approval Corpus Christi Page 5 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 L. 14 ►yiI `N1 of the contractor and the City Manager, or designee. Attachments: Agenda memo - Municipal Lease Line of Credit.pdf _x- • PUBLIC HEARINGS: (ITEM 14) 13 -00076 Public Hearing and First Reading Ordinance -A change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District, at 7201 Brooke Road Case No. 0113 -01 Brooke Tract, L.P.: 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 is described as 39.99 acres out of Lots 16, 17, 18, 19, 28, 29, and 30, Section 26, Flour Bluff and Encinal Farm and Garden Tracts, located on the southeast corner of Rodd Field Road and Brooke Road. Planning Commission and Staff Recommendation (January 16, 2013): 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 Brooke Tract, L.P. ( "Owner"), by changing the UDC Zoning Map in reference to 39.99 acres out of Lots 16, 17, 18, 19, 28, 29, and 30, Section 26, Flour Bluff and Encinal Farm and Garden Tracts, from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District; amending the Comprehensive Plan to account for any deviations; and providing for a repealer clause and publication. Attachments: 0113 -01 Agenda Memo, Brooke Tract Revised ••� REGULAR AGENDA: (ITEMS 15 -16) The following items are motions, resolutions and ordinances that will be considered and voted on individually. 12 -00770 Interlocal agreement for extending waterline on County Road 52 for installation of fire hydrants Resolution authorizing the City Manager, or designee, to execute an Interlocal Agreement with Nueces County and the Nueces County Water Corpus Christi Page 6 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 16. N. 17 18 Control and Improvement District No. 3 in an amount not to exceed $25,000, to extend the water line on County Road 52. Attachments: Agenda memo - CR 52 Water Line Ext '. ism 13 -00010 Second Reading Ordinance - Ground lease for development of a facility for State and Federal departments to be located at the airport (1st Reading 118113) Authorizing the City Manager or designee to execute a Ground Lease with FDL - CC, LLC to lease land from the City of Corpus Christi at the Corpus Christi International Airport ( "Airport ") for the development of a facility to be occupied initially by the Department of Homeland Security, the United States Coast Guard (USCG), and Customs and Border Protection ( "Project "), to be located on land at the Airport, which Project will be subleased by FDL - CC, LLC to the General Services Administration ( "Government- Tenant "). Ordinance adopting the International Fire Code, 2009 Edition, with local amendments, as the Fire Code of the City of Corpus Christi; providing for penalties; providing for severance; and providing for publication. Attachments: Agenda memo - Fire Code 13 -00031 First Reading Ordinance - Amending the Capital Improvement Budget and ratifying Change Order No. 5 for improvements at the Airport Ordinance amending the FY 2013 Capital Improvement Budget adopted by Ordinance No. 029565 to add Project No. E10075 Corpus Christi International Airport Communications Center, Perimeter Security, Standby Generator, and Commercial Aviation Lighting Upgrades; Corpus Christi Page 7 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 increasing expenditures in the amount of $170,404.21; and ratifying Change Order No. 5 to the Construction Contract with Beecroft Construction, Ltd. of Corpus Christi, Texas in the amount of $170,404.21, for a total restated fee not to exceed $2,943,053.09, for the Corpus Christi International Airport Communications Center, Perimeter Security, Standby Generator and Commercial Aviation Lighting Upgrades. Attachments: Agenda memo - Change order no. 5 Airport Change Order Summary - Airport Ordinance - Change Order no. 5 • a •e • s t p •a 19. 13 -00090 First Reading Ordinance - Amending lease agreement to exclude subsidiary from On- Airport Rental Car Consession and Lease for airport Ordinance authorizing the City Manager, or designee, to ratify an amendment to the On- Airport Rental Car Concession and Lease Agreement with The Hertz Corporation for the operation of a car rental concession at the Corpus Christi International Airport ( "Airport ") to exclude former Hertz subsidiary Simply Wheelz, L.L.C. as a party. Attachments: Agenda memo - Hertz Amd 1 -24 -13 INNEIRM 20. 13 -00031 First Reading Ordinance - Amending rental car concession and lease agreements with each rental car agency located at the airport Ordinance authorizing the City Manager, or designee, to execute a First Amendment to the On- Airport Rental Car Concession and Lease Agreement with each 1) EAN Holdings, LLC, a wholly owned subsidiary of Enterprise Holdings, Inc. dba Alamo Rent A Car and National Car Rental ( "Alamo /National "), 2) Coastal Bend Rent -A -Car dba Avis Rent -A -Car ( "Avis "), 3) DTG Operations, Inc. dba Dollar Rent -A -Car and Thrifty Car Rental ( "Dollar /Thrifty "), 4) EAN Holdings, LLC, a wholly owned subsidiary of Enterprise Holdings, Inc. dba Enterprise Rent -A -Car ( "Enterprise "), and 5) The Hertz Corporation ( "Hertz ") to lease space in the Quick Turn Around Facility ( "QTA ") located at the Corpus Christi International Airport ( "Airport "), in consideration of a base rent to be offset as applicable by revenues collected via a Customer Facility Charge, each for a term of five (5) years. Corpus Christi Page 8 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 Attachments: Agenda memo - RACs v2 • • IM11 I= I I "' • 9171THE Em Agreement - EAN Holdings, LLC Alamo-National RAC - First Amendment.pdf q Bend-RAC,inc. Avis R t • •- t = • - •• Agreement - EAN Holdings, LLC Enterprise RAC - First Amendment.pdf Agreement - Hertz RAC - First Amendment revised.pdf 21. 13 -00091 First Reading Ordinance - Agreement for use of McGee Beach for music event Ordinance authorizing the City Manager or designee to execute an Agreement with Elizabeth Guarneri for use of McGee Beach for music event to be held on March 16, 2013 and March 17, 2013. Attachments: Agenda memo - Beach Fest Admission Fees 2013 22. 13 -00092 First Reading Ordinance - Accepting and appropriating State grant funds and regional cash match funds for parking lot improvements at the Billings and Clems Boat Ramp; amending project agreement to increase federal grant funds and include lease as local match HIMENININM Ordinance authorizing the City Manager or designee to execute all documents necessary to accept and appropriate funding in the amount of $25,000 from the Saltwater- fisheries Enhancement Association and $674,710 in additional federal funding for the Clem's and Billing's Boat Ramp renovations in the No. 1067 Park and Recreation Grants Fund; authorizing the City Manager or designee to execute Amendment to Project Agreement with Texas Parks and Wildlife Department for Clem's and Billing's Boat Ramp renovations to increase federal grant funds $674,710 and include 25 year lease with Texas General Land Office as local match; and amending the FY 12 -13 Capital Budget adopted by Ordinance No. 029565 by increasing proposed revenues by $699,710. Attachments: Agenda memo - Billings & Clems grant amendment amendment 0 Agreement • • lot First Reading Ordinance - Accepting and appropriating State grant and City matching funds for wildlife refuge improvements Corpus Christi Page 9 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 Ordinance authorizing the City Manager or designee to execute all documents necessary to accept and appropriate a grant in the amount of $100,000 from the Texas General Land Office for Hans and Pat Suter Wildlife Refuge improvements in the No. 1067 Park and Recreation Grants Fund with City matching funds of $66,667.00 in the No. 4720 Community Enrichment Fund for total project amount of $166,667.00. Attachments: Agenda memo - GLO CMP 17 grant for Hans &Pat Suter Park 24. 13 -00094 First Reading Ordinance - Accepting and appropriating State grant for elderly nutrition home delivered meals Ordinance authorizing the City Manager or designee to execute all documents necessary to accept and appropriate a $140,220.79 grant from the Texas Department of Agriculture Texans Feeding Texans Program in the No. 1067 Parks and Recreation Grants Fund for the FY 2013 Senior Community Services, Elderly Nutrition Program. Attachments: Agenda memo - Texans Feeding Texans Grant 2013 • * -• Mo ­ • 25. 13 -00096 First Reading Ordinance -Amending City code to establish Tree Advisory Committee and list minimum standards for tree planting and management on public property Ordinance amending the City Code of Ordinances to establish the Tree Advisory Committee and include provision to address diseased trees. Attachments: Agenda memo - Tree Care Ordinance i' • +" • +•• w • a 26. 13 -00008 First Reading Ordinance - Adopting a local amendment to the 2009 International Residential Code (IRC) that establishes a fire separation distance equal to the one that was required by the 2003 IRC Ordinance amending the Code of Ordinances, Chapter 14, "Development Services," Article II, "City of Corpus Christi Technical Construction Codes," Division 8, "Residential Code," Section 14 -291, "Residential construction code," by creating new subsection (6.1) pertaining to Section R302.1 of the International Residential Code for One- and Two - Family Dwellings, which relates to exterior walls and fire - resistant construction, in order to establish new exception language and include modifications to the applicable table. Corpus Christi Page 10 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 • • " t r O. FUTURE AGENDA ITEMS: (ITEMS 27 - 38) The following items are for Council's informational purposes only. No action will be taken and no public comment will be solicited. 27. 13 -00058 Approving amendment no. 2 to professional services contract for water supply study to include gas line and Municipal Information Systems conduit from Laguna Shores Boulevard to Padre Island Drive Motion authorizing the City Manager, or designee, to execute Amendment No. 2 to the Contract for Professional Services with Urban Engineering of Corpus Christi, Texas in the amount of $182,976.00, for a total restated fee not to exceed $597,216.00, for the Padre Island Water Supply Study. Attachments: Agenda memo - PI Water Supply Schedule a •py Project Budget - P1 Water Supply 28. 13- 000101 Construction Contract for removing ammonia from reclaimed water to meet Texas Commission of Environmental Quality (TCEQ) permit criteria for ammonia Motion authorizing the City Manager, or designee, to execute a Construction Contract with CSA Construction of Houston, Texas in the amount of $3,461,025.00, for Oso Water Reclamation Plant Nutrient Removal Project (Ammonia) - Phase 1. Attachments: Agenda memo - Oso WRP 29. 13 -00018 Supply Agreement for hot tap fittings for repairing or adding pressurized natural gas lines Motion approving a supply agreement with M.T. Deason Company, Inc., Birmingham, Alabama for hot tap fittings in accordance with Bid Invitation No. BI- 0052 -13 based on only bid for an estimated annual expenditure of $69,257.50, of which $40,400.21 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 Corpus Christi Page 11 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 30. 31. 32 twelve -month periods, subject to the approval of the supplier and the City Manager or designee. Funds have been budgeted by the Gas Department in FY 2012- 2013. Attachments: Agenda memo - Hot Tap Fittings.pdf 13- 000104 Approving uniformed guard security services for specific City buildings Motion approving a service agreement with Eddie Garza Security & Investigations, of Corpus Christi, Texas for uniformed guard security services for City Hall, Frost Bank Building, Central Library, Ben F. McDonald Library, Janet F. Harte Library and the O.N. Stevens Water Treatment Plant in accordance with Bid Invitation No. BI- 0035 -13 based on lowest local bid for an estimated twelve month expenditure of $296,186.63 of which $123,411.10 is required for the remainder of FY 2012 -2013. The term of the agreements shall be for twelve months with options to extend for up to two additional twelve months periods, subject to the approval of the supplier and the City Manager or designee. Funds have been budgeted by the using departments in FY 2012- 2013. Attachments: Agenda memo - Uniformed Guard Security Services.pdf 13- 000102 Authorizing grant application submission to State for assisting victims of crime Resolution authorizing the submission of a grant application in the amount of $79,188.69 to the State of Texas, Criminal Justice Division for funding available under the Victims of Crime Act (VOCA) fund for the Police Department's Family Violence Unit with a city match of $16,964.54 and $4,000 in -kind services, for a total project cost of $100,153.23; and authorizing the City Manager or designee to apply for, accept, reject, alter, or terminate the grant. Attachments: Agenda memo - VOCA 02.12.2013 13- 000103 Authorizing grant application submission to State for reducing and preventing violence against women Resolution authorizing the submission of a grant application in the amount of $47,351.74 to the State of Texas, Criminal Justice Division. For funding available under the Violence Against Women Act (VAWA) fund for the Police Department's Family Violence Unit with a city match of $16,573.28 and $5,400 in -kind services, for a total project cost of $69,325.02; and authorizing the City Manager or designee to apply for, accept, reject, alter, or terminate the grant. Corpus Christi Page 12 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 Attachments: Agenda memo - VAWA 02.12.2013 33. 13- 000109 Authorizing grant application submission to State for direct services to victims of crime Resolution authorizing the submission of a grant application in the amount of $67,660.55 to the State of Texas, Criminal Justice Division. For funding available under the Victims of Crime Act (VOCA) fund for the Police Department's Family Violence Unit to establish a Victim Outreach Program with a city match of $13,533.07 and $3,000 in -kind services, for a total project cost of $84,193.62; and authorizing the City Manager or designee to apply for, accept, reject, alter, or terminate the grant. Attachments: Agenda memo - VOCA Victim Outreach 02 12 2013 34. 13- 000114 Resolutions supporting local affordable housing developments; acknowledging their applications for low income housing tax credits to State and local support for HOME funds (Related Items 34- 36) Resolution of the City Council of the City of Corpus Christi, Texas in support of the proposed affordable housing project known as Woodland Creek Apartments to be developed by TG 110, Inc. Attachments: Agenda Memo -Woodland Creek Apartments HOME FY2013 Projects 35. 13- 000135 Resolution of the City Council of the City of Corpus Christi, Texas in support of the proposed affordable housing project known as Lexington Manor Apartments to be developed by TG 110, Inc. Attachments: Agenda Memo- Lexington Manor HOME FY2013 Projects Lexington Manor Resolution February2013v2 36. 13- 000136 Resolution of the City Council of the City of Corpus Christi, Texas in support of the proposed affordable housing project known as Riverstone Apartments to be developed by MDS Housing Corpus Christi, Ltd. Attachments: Agenda memo - Riverstone Apartments for HOME FY2013 Projects Resolution - Riverstone Apartments February2013v2 37. 13- 000108 Appointing Council Members to the Corpus Christi Housing and Finance Corporation and the Corpus Christi Industrial Development Corporation Motion appointing Council Members Nelda Martinez, Kelley Allen, Rudy Garza, Priscilla Leal, David Loeb, Chad Magill, Colleen McIntyre, Lillian Riojas and Mark Scott as Board Members to the Corpus Christi Housing Corpus Christi Page 13 Printed on 21812013 City Council Meeting Agenda - Final- revised February 12, 2013 Finance Corporation and the Corpus Christi Industrial Development Corporation. Attachments: Agenda memo - CCHFC and CCIDC 38. 1- 000110 Appointing Council Members to the Coastal Bend Health Facilities Development Corporation and the Coastal Bend Cultural Education Facilities Finance Corporation boards Motion appointing Council Members Nelda Martinez, Kelley Allen, Rudy Garza, Priscilla Leal, David Loeb, Chad Magill, Colleen McIntyre, Lillian Riojas and Mark Scott as Board Members to the Coastal Bend Health Facilities Development Corporation and the Coastal Bend Cultural Education Facilities Finance Corporation. Attachments: Agenda memo - CBHFDC & CBCFFC I III va LyiFAL1Ew ;IZWK60]►yihyil;IL1 Ill &15 * Update on City Operations Q. ADJOURNMENT Corpus Christi Page 14 Printed on 21812013 a, 7 Tuesday, January 29, 2013 A. B. C. E. Corpus Christi Meeting Minutes - Final CALL MEETING TO ORDER. INVOCATION. City Council 11:30 AM Mayor Martinez called the meeting to order. 1201 Leopard Street Corpus Christi, TX 78401 cctexas.com The invocation was led by Pastor Allen Mosiman, Parkway Presbyterian Church. PLEDGE OF ALLEGIANCE. ROLL CALL. Council Chambers The Pledge of Allegiance was led by Michelle Horine, Convention & Visitor's Bureau. City Secretary Armando Chapa verified that the necessary quorum of the Council and the following necessary Charter Officers, City Manager Ron Olson, City Attorney Carlos Valdez and City Secretary Armando Chapa were present to conduct the meeting. Present: 8 - Council Member Kelley Allen,Council Member Priscilla Leal,Council Member David Loeb,Mayor Nelda Marti nez,Council Member Chad Magill,Council Member Colleen McIntyre, Council Member Lillian Riojas, and Council Member Rudy Garza Absent: 1 - Council Member Mark Scott Proclamations / Commendations 1 Proclamation declaring February 4 -8, 2013 as National School Counseling Week" Certificate of Commendation to Workforce Solutions of the Coastal Bend for the 2012 Statewide Awards and Recognition Ceremonial Presentation of Certified Ambassador Tourism Certificates & Pins Swearing -in Ceremony of all newly appointed Board, Commission and Committee Members Mayor Martinez read and presented the Proclamation(s) and conducted a Swearing in ceremony for newly appointed members to the City's boards and commissions. Corpus Christi Page 1 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 H. MINUTES: 4 Approval of Meeting Minutes - January 22, 2013. A motion was made by Council Member Magill, seconded by Council Member Leal to approve the minutes as presented. BOARDS & COMMITTEE APPOINTMENTS: (NONE) K. CONSENT AGENDA: (ITEMS 5 - 23) Mayor Martinez referred to the Consent Agenda, Items 5 through 23. Mayor Martinez asked for council and public comment. There were no comments. The remaining items were approved by one vote: 5 Second Reading Ordinance - Type A agreement and appropriating funds to improve McCampbell Road in front of H.E.B. manufacturing facility (1st Reading 1/22/13) Ordinance approving a business incentive agreement between the Corpus Christi Business and Job Development Corporation ( "Type A Corporation ") and HEB Grocery Company, LP ( "HEB "), to improve McCampbell Road in front of their bread and tortilla manufacturing facility in Corpus Christi and the retention of jobs The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: 029734 6 Second Reading Ordinance - Appropriating funds and executing construction contract for Seawall repairs (1st Reading 1/22/13) Ordinance appropriating $4,000,000 from the Unreserved Fund Balance in No. 1120 Seawall Improvement Fund and transferring and appropriating into Seawall CIP Fund 3272 for approved Seawall Maintenance Projects; changing the FY 2013 Operating Budget adopted by Ordinance No. 029577 to increase expenditures by $4,000,000; and authorizing the City Manager or designee to execute a construction contract with Structural Concrete Systems, LLC from Magnolia, Texas in the amount of $515,256.50, for the Bayfront Seawall Repairs 2012. Corpus Christi Page 2 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: 029735 7 Second Reading Ordinance - Accepting and appropriating grant for defibrillator purchase (1st Reading 1/22/13) Ordinance authorizing the City Manager or designee to accept a grant from the Christus Spohn Hospital Corpus Christi in the amount of $134,395.95 for the purchase of five Zoll X- series defibrillators and its accessories; and Appropriating the $134,395.95 in the Fire Grant Fund No. 1062. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: 029736 8 Second Reading Ordinance - Miscellaneous easement with State for waterline rights across Laguna Madre (1st Reading 1/8/13) Ordinance authorizing the City Manager or designee to execute Miscellaneous Easement ME800236 with the State of Texas through its General Land Office, for the renewal of easement rights across the Laguna Madre for a 24 -inch waterline to Padre Island, for a term of ten years, at the total cost of $67,025.90 which includes the ten year land use fee of $66,675.90 and an application fee of $350.00. The foregoing ordinance was passed and approved on second reading with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: 029737 Corpus Christi Page 3 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 9 BOND 2012 Projects (Related Items 9 - 22) Professional services contract for street improvements on Navigation Boulevard from Up River Road to Leopard Street (Proposition No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with LNV, Inc. of Corpus Christi, Texas in the amount of $792,350.00, for Navigation Boulevard from Up River Road to Leopard Street for design, bid, and construction phase services BOND ISSUE 2012 (Proposition No. 1 Street Projects). The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -012 10 Professional services contract for street improvements on South Alameda Street from Ayers Street to Louisiana Avenue (Proposition No. 1 Streets Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with HDR Engineering, Inc. of Corpus Christi, Texas in the amount of $575,957.00, for South Alameda Street from Ayers Street to Louisiana Avenue for design, bid, and construction phase services BOND ISSUE 2012 (Proposition No. 1 Street Projects). The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -013 11 Professional services contract for street improvements on Greenwood Drive from Gollihar Road to Horne Road (Proposition No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with Govind Development, LLC Corpus Christi Page 4 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 from Corpus Christi, Texas in the amount of $390,773, for Greenwood Drive from Gollihar Road to Horne Road for design, bid, and construction phase services BOND ISSUE 2012 (Proposition No. 1 Street Projects). The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -014 12 Professional services contract for street improvements on Ocean Drive from Buford Street to Louisiana Avenue (Propostion No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with Freese & Nichols from Corpus Christi, Texas in the amount of $855,969, for Ocean Drive from Buford Street to Louisiana Avenue for design, bid, and construction phase services BOND ISSUE 2012 (Proposition No. 1 Street Projects). The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -015 13 Professional services contract for street improvements on Tuloso Road from Interstate Highway 37 to Leopard Street (Propostion No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with MEI Maverick Engineering, Inc. from Corpus Christi, Texas in the amount of $331,322.00, for Tuloso Road from IH37 to Leopard Street for design, bid, and construction phase services BOND ISSUE 2012 (Proposition No. 1 Street Projects) The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Corpus Christi Page 5 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -016 14 Professional services contract for street improvements on South Staples Street from Brawner Parkway to Kostoryz Road (Proposition No. 1) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with Freese & Nichols from Corpus Christi, Texas in the amount of $731,030, for South Staples Street from Brawner Parkway to Kostoryz Road for design, bid, and construction phase services BOND ISSUE 2012 (Proposition No. 1 Street Projects). The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -017 15 Professional services contract for street improvements on South Staples Street from Morgan Avenue to Interstate Highway 37 (Proposition No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with Naismith Engineering, Inc. from Corpus Christi, Texas in the amount of $837,162.50, for South Staples Street from Morgan Avenue to 1H 37 for the design, bid, and construction phase services BOND ISSUE 2012. The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -018 16 Professional services contract for street improvements on McArdle Road from Ennis Joslin Road to Whitaker Drive (Proposition No. 1 Street Projects) (BOND 2012) Corpus Christi Page 6 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with RVE, Inc. from Corpus Christi, Texas in the amount of $957,720.00, for McArdle Road - Nile Drive to Ennis Joslin Road and McArdle Road from Whitaker Drive to Nile Drive for design, bid, and construction phase services BOND ISSUE 2012 (Proposition No. 1 Street Projects) The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -019 17 Professional services contract for street improvements on Kostoryz Road from Brawner Parkway to Staples Street (Proposition No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with Urban Engineering from Corpus Christi, Texas in the amount of $516,210.00, for Kostoryz Road from Brawner Parkway to Staples Street for design, bid, and construction phase services BOND ISSUE 2012. (Proposition No. 1 Street Projects) The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -020 18 Professional services contract for street improvements on Horne Road from Ayers Street to Port Avenue (Proposition No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with Naismith Engineering, Inc. from Corpus Christi, Texas in the amount of $244,362.50, for Horne Road from Ayers Street to Port Avenue for design, bid, and construction phase services BOND ISSUE 2012. (Proposition No. 1 Street Projects) Corpus Christi Page 7 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -021 19 Professional services contract for street improvements on Morgan Avenue from Staples Street to Crosstown Freeway (Proposition No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with Coym, Rehmet & Gutierrez Engineering, L.P. from Corpus Christi, Texas in the amount of $448,310.00, for Morgan Avenue from Staples Street to Crosstown Freeway for design, bid, and construction phase services BOND ISSUE 2012. (Proposition No. 1 Street Projects) The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -022 20 Professional services contract for street improvements on Twigg Street from Shoreline Boulevard to Lower Broadway (Proposition No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with HDR Engineering, Inc. of Corpus Christi, Texas in the amount of $344,493.00, for Twigg Street from Shoreline Boulevard to Lower Broadway for design, bid, and construction phase services BOND ISSUE 2012 (Proposition No. 1 Street Projects). The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Corpus Christi Page 8 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 Enactment No: M2013 -023 21 Professional services contract for street improvements on Leopard Street from Crosstown Freeway to Palm Drive (Proposition No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with HDR Engineering, Inc. of Corpus Christi, Texas in the amount of $563,389.00, for Leopard Street from Crosstown Freeway to Palm Drive for design, bid, and construction phase services BOND ISSUE 2012 (Proposition No. Street Projects). The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -024 22 Professional services contract for the JFK Causeway Area improvements (Proposition No. 1 Street Projects) (BOND 2012) Motion authorizing the City Manager, or designee, to execute a Contract for Professional Services with Urban Engineering, from Corpus Christi, Texas in the amount of $162,520.00, for the JFK Causeway Area Improvements for design, bid, and construction phase services BOND ISSUE 2012. (Proposition No. 1 Street Projects) The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -025 23 Resolution determining necessity for and ordering improvements for paving assessment project; specifying payment and approving plans and specifications for improvements; setting a public hearing for proposed assessments (BOND 2008) Resolution determining the necessity for and ordering improvements to Vaky Street from Swantner Drive to Reid Drive; Ivy Lane from Gollihar Road to Horne Road; and Clare Drive from South Padre Island Drive Corpus Christi Page 9 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 to McArdle Road (the "Improvements "); specifying payment of the improvements partly by the City and partly by assessments; directing the filing of a notice of proposed assessments with the Nueces County Clerk; approving plans and specifications for the improvements; approving the Construction Cost Estimate; setting a public hearing on these proposed assessments for the February 26, 2013 City Council Meeting: directing publication of notice of the hearing and ordering notice of the hearing be provided to property owners. (Bond 2008) The foregoing resolution was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: 029733 L. PUBLIC HEARINGS: (ITEM 24) Mayor Martinez referred to Item No. 24. Eddie Ortega, Director of Neighborhood Services stated that this item is a Public Hearing regarding substantial amendments to the Consolidation Annual Action Plan for Fiscal Years 2007, 2010 and 2011, and a Motion to amend to amend the following projects: 1) removing the FY 2007 HOME funding for Messianic Fellowship Church in the amount of $300,000; 2) removing the FY 2007 CDBG funding for Montgomery Ward Building in the amount of $350,000; 3) canceling the FY 2010 CDBG funding for Avance, Inc. in the amount of $175,828; 4) changing the scope of work to the FY 2010 CDBG funding for the Lindale Senior Center project; 5) canceling the FY 2011 funding for the following projects: Coastal Bend Alcohol & Drug Rehabilitation Center, Gonzalez Foundation, and Westside Business Association. Mr. Ortega stated that the amount of CDBG funding being reprogrammed into FY 2013 is $693,320, and the amount of HOME funding being reprogrammed into FY 2013 is $300,000. A motion was made by Council Member McIntyre, seconded by Council Member Magill to open the public hearing and passed. Abel Alonzo thanked the staff for serving the community well and spoke in support of the action related to this item. A motion was made by Council Member Garza, seconded by Council Member Leal to close the public hearing and passed. 24 Public Hearing and Motion to amend Consolidated Annual Action Plan (CAAP) and cancel specific Community Development Block Grant (CDBG) projects Public Hearing and Motion to authorize the City Manager or designee to execute all necessary documents with the U.S. Department of Housing and Urban Development (HUD) and Consolidated Annual Action Plan (CAAP) grantees for the following HUD approved contracts, cancellations and amendments. Funding from these Corpus Christi Page 10 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 cancelled projects will be reprogrammed into the FY13 CAAP. Action to be taken will consist of the following: cancellation of an FY07 HOME Investment Partnership Program project for the Messianic Fellowship Church; cancellation of an FY07 Community Development Block Grant (CDBG) Program project for the Montgomery Ward Building rehabilitation Project; cancellation of a FY10 CDBG project forAvance; the changing of a scope of work for a FY10 CDBG project for the Lindale Senior Center; the cancellation of CDBG FY 11 projects for Coastal Bend Alcohol & Drug Abuse Rehabilitation Center dba Charlie's Place, the Gonzalez Foundation, and the Westside Business Association. The foregoing motion was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: M2013 -026 F. PUBLIC COMMENT. Mayor Martinez referred to Public Comment. Cecil Henry referred to a Letter to the Editor regarding the Windstorm Group seeking funding; Jack Gordy referred to Council action on January 15, 2013 not to exempt RTA from being required to obtain sign permits, and referred to the Unified Development Code; Foster Edwards, CEO for the Corpus Christi Chamber of Commerce, apologize to the Council for comments he made regarding a Windstorm article in the Caller Times Newspaper. G. EXECUTIVE SESSION: (ITEM 2 - 3) Mayor Martinez referred to Executive Session Item Numbers 2 and 3. The council went into executive session. The council returned from executive session. 2 Executive Session pursuant to Texas Government Code Section 551.074 Personnel Matters to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of Municipal Court Judges, with possible discussion and action in open session. City Secretary Chapa stated that action is necessary on Executive Session Item No. 2 and read the following ordinance: Ordinance appointing Margie Silva Flores, Rodolfo G. Tamez, Julianna Siracusa Rivera, Melissa K. Madrigal, and Mike James Alaniz as Municipal Court Judges of the Municipal Court of Record in the City of Corpus Christi, Texas; appointing Margie Silva Flores as the Presiding Judge; appointing Jerry L. Batek, Craig Henderson, Patrick J. O'Hare, Christopher E. Matt, Todd Corpus Christi Page 11 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 Robinson, and Ray A. Gonzalez as Part -Time Judges of the Municipal Court of Record in the City of Corpus Christi; determining salary, providing a term of office, and declaring an emergency. An emergency was declared and the foregoing ordinance was passed and approved with the following vote: Aye: 8- Council Member Allen, Council Member Leal, Council Member Loeb, Mayor Martinez, Council Member Magill, Council Member McIntyre, Council Member Riojas and Council Member Garza Absent: 1 - Council Member Scott Abstained: 0 Enactment No: 029733 3 Executive session pursuant to Section 551.087(1) of the Texas Government Code to discuss commercial and financial information that the city has received from a business prospect which the city seeks to have stay or expand within the territory of the city and with which the city is conducting economic development negotiations, with possible discussion and action in open session. This E- Session Item was discussed in executive session. M. REGULAR AGENDA: (NONE) N. FIRST READING ORDINANCES: (NONE) O. FUTURE AGENDA ITEMS: (ITEMS 25 - 31) Mayor Martinez referred to the Future Agenda, Items 25 through 31 and stated that these items are informational purposes only and that no action or public comment would be taken. City Manager Olson announced that Item No. 26 is being withdrawn, and that staff would provide a presentation on Items 25 and 27. 25 Amending Consulting Services Agreement with the Corpus Christi Convention and Visitors Bureau Motion authorizing the City Manager, or designee, to execute an Amended Consulting Services Agreement ( "Agreement ") with the Corpus Christi Convention and Visitors Bureau ( "CVB ") for a period ending July 31, 2015 This motion was recommended by Staff to the Consent Agenda. 26 Change Order No. 2 for the additional required construction for the McBride Lift Station force main replacement Motion authorizing the City Manager, or designee, to execute Change Corpus Christi Page 12 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 Order No. 2 with Bridges Specialties, Inc. of Sandia, Texas in the amount of $108,517.05 for the McBride Lift Station Force Main Replacement. This Motion was withdrawn by City staff. 27 Agreement with State to contribute right -of -way funds for ramp reversal project on South Padre Island Drive (SPID) to alleviate congestion at eastbound off ramps between Nile Drive and Ayers Street Resolution authorizing the City Manager, or designee, to execute an Agreement to Contribute Right of Way Funds with the Texas Department of Transportation (TXDOT) for the acquisition of certain rights of way and the relocating and adjusting of utilities within the project's scope of SH 358 (South Padre Island Drive) from Nile Drive to Ayers Street, with the City's participation in the amount of $950,000. (BOND 2012) This Resolution was recommended by Staff to the Consent Agenda. 28 Deferment Agreement for public wastewater and water improvements to the property located at the southside of State Highway 44, east of Heinsohn Road and west of North Padre Island Drive Motion finding reasonable cause exists to delay completion of public improvements in accordance with Section 8.1.10.B of the Unified Development Code and authorizing the City Manager, or designee, to execute a deferment agreement with 15T Investments LLC ( "Developer /Owner "), in the amount of $221,846.54 for public wastewater and water improvements to the property located at the Southside of State Highway 44 East of Heinsohn Road and West of North Padre Island Drive, contingent upon receipt of a letter of credit approved by the City prior to the filing of the final plat by the Developer. This Motion was recommended by Staff to the Consent Agenda. 29 Cooperative Purchase Agreement for electronic archiving of construction blueprints Motion approving a contract for the electronic archiving of construction blueprints with MCCi, LLC of Tallahassee, Florida for a total expenditure of $76,779.70. The award is based on the cooperative purchasing agreement with the Texas Department of Information Resources (DIR). Funds are budgeted in the Development Services Fund for FY 2012 -2013. This Motion was recommended by Staff to the Consent Agenda. 30 Supply Agreements for food items for the Elderly Nutrition Program Corpus Christi Page 13 Printed on 21412013 City Council Meeting Minutes - Final January 29, 2013 31 P. Q Motion approving supply agreements with the following companies for the following amounts in accordance with the Coastal Bend Council of Governments Bid Invitation No. CBCOG -13 -1 for food items which include canned and frozen fruit and vegetables; meats and condiments, for an estimated six month expenditure of $179,155.26. The terms of the contracts shall be for six months with options to extend for up to three additional months, subject to the approval of the Coastal Bend Council of Governments, the suppliers, and the City Manager or designee. Funds are available through the Meals on Wheels Grant. LaBatt Food Service Corpus Christi, Texas 144 Line Items $83,729.73 Grand Total: $179,155.26 Performance Food Group Victoria, Texas 108 Line Items $95,425.53 This Motion was recommended by Staff to the Consent Agenda. Municipal Lease Line of Credit to fund equipment and rolling stock replacement needs Motion approving a Municipal Lease Line of Credit with Frost Bank in accordance with Request for Proposal No. BI- 0040 -13 based on lowest responsible proposal for an estimated annual expenditure of $326,909.92. The term of the contract is for one year with options to extend for up to four additional one -year periods, subject to the approval of the contractor and the City Manager, or designee. This Motion was recommended by Staff to the Consent Agenda. CITY MANAGER'S COMMENTS: * Update on City Operations There were no City Manager comments. ADJOURNMENT There being no further business to come before the council, Mayor Martinez declared the meeting adjourned at 1:25 pm. Corpus Christi Page 14 Printed on 21412013 a. ADVISORY COMMITTEE ON COMMUNITY PRIDE — Two (2) vacancies with terms to 8 -25 -13 and 8- 25 -14. (Appointed by the Mayor with approval of the City Council) DUTIES: To advise the Mayor and City Council on development and implementation of a comprehensive community pride campaign that will interrelate with the efforts and purpose of the Clean City Advisory Committee. COMPOSITION: The committee shall consist of eleven (11) members appointed by the Mayor with approval of the City Council to serve two -year terms. Of the initial members, six (6) members shall serve a two -year term and five (5) members shall serve a one -year term, as determined by a drawing to be conducted by the City Secretary's Office. Thereafter, all terms shall be two (2) years. The Director of Public Information and the Director of Neighborhood Services shall serve as ex- officio without vote. ORIGINAL MEMBERS TERM APPTD. DATE Frank E. Franklin 8 -25 -14 8 -14 -12 Stefany Tegeler Schade 8 -25 -13 12 -13 -11 Paul Gottemoller 8 -25 -14 8 -14 -12 Jason Haviland 8 -25 -13 12 -13 -11 Oscar Carmona 8 -25 -14 5 -11 -10 Bob Copes 8 -25 -13 6 -19 -12 * * *Kristina Leal 8 -25 -14 8 -14 -12 J. Kyle Davidson 8 -25 -13 8 -25 -09 Tony Reyes 8 -25 -14 6 -28 -11 * * *Elisa Macias 8 -25 -13 4 -27 -10 Christina Hernandez 8 -25 -13 6 -28 -11 Director of Public Information Ex- Officio, Nonvoting Director of Neighborhood Services Ex- Officio, Nonvoting Legend: *Seeking reappointment * *Not seeking reappointment ***Resigned * * * *Exceeded number of absences allowed by ordinance * * * * *Has met six -year service limitation INDIVIDUALS EXPRESSING INTEREST: Nicole Andrade Human Resource Manager, Texas State Aquarium. Received Associates Degree in Business Administration from Del Mar College and Bachelors in HR from Saint Leo University. Currently Pursing Masters Degree at Saint Leo University. Activities include: Corpus Christi Human Resource Management Association and Local American Society for Training and Development. (5114111) Sarah Lathrop Baugh Chief Operating Officer, Dash Truck and Equipment Sales, Inc. Activities include: Cowboy Church Committee for Buc Days, Calallen Baptist Church, Junior League and Republican Party. (2125111) Marjorie N. Boudreaux Director of Marketing & Communications, Goodwill Industries of South Texas. Received a BA in English from Texas A &M University — Corpus Christi. Activities include: American Marketing Association, Toastmasters International, and YWCA. (09115111) Daniela Bucholtz Executive Assistant, Ransleben, Senterfitt, Sedwick & Co. Activities include: Young Business Professionals of the Coastal Bend, volunteers with the Clean City/Pride Coordinator for city -wide events. (1115113) Alice Aparicio - Bussey Realtor, Keller Williams Realty. Attended Del Mar College. Licensed Real Estate Agent over 25 years. Activities include: Keller Williams Cares, and Corpus Christi Citizens Police Alumni Association. (03119112) Jeff Craft President, Corpus Christi Publishing & Tango Tea Room. Owner of downtown restaurant, Tango Tea Room. Publisher of CC Magazine. Activities include: President of Downtown Farmers Market Association. (1123113) Micah DeBenedetto Photographer /Owner, MD Photography. Received a BS in Chemistry from the University of Texas at Austin. Activities include: CASA Board of Directors, Planning Committee for YMCA, ALS Association of South Texas, American Cancer Society volunteer, Young Business Professionals. (2107113) Marie T. Guajardo Director of Marketing Generation Texas, Coastal Bend Partners for College and Career Readiness. Received a BBA from The University of Texas — San Antonio. Activities include: Career & Technology High School Steering Committee, Landmark Commission, Keep Every Youth in School (K.E.Y. S.), Miracle League of Corpus Christi, P -16 Committee, Junior Achievement, UTSA Minority Small Business Development Center Internship, Del Mar College G.E.D. Program volunteer. (Willing to resign from the Landmark Commission, if appointed) (11/30/12) Scott M. Harris Professional Engineer, HDR Engineering, Inc. Received a B.S. in Civil Engineering from Prairie View A &M University. Currently pursuing an M.A. in Strategic Studies from the Naval War College. He is a 23 -year veteran in our armed forces, completing numerous humanitarian construction proj ects, and served in Operations Iraqi Freedom and USSOUTHCOM. He remains in the Navy Reserves as a Lieutenant Commander and Civil Engineer Corp Officer and serves as the Operations Officers for a Navy Mobile Construction Battalion. Activities and interests include: Scout leader at Nature Conservancy and Blucher Park, history, heritage, geography, reading, South Texas Council of Boy Scouts, Texas State Aquarium, Museum of Science and History, Art Museum of South Texas, Society of American Military Engineers and American Society of Civil Engineers. (10/31/12) Betsy Herring Operations Manager, Turner, Ramirez & Associates. Activities include: Junior League of Corpus Christi, Leadership Corpus Christi steering committee, Leadership Corpus Christi Alumni Board of Governors, YWCA Yuletide Market Committee, American Cancer Society Cattle Baron's Ball volunteer. (11126112) Bill J. Hoelscher Executive Director, Coastal Bend AIDS Foundation. Received a BA in Psychology and an MS in Counseling from Corpus Christi State University (TAMUCC). He has worked with many non - profits over the years and is willing to give more time and service to the community. (11 /01 /11) Beth Kingsbury Assistant Marketing Manager, HDR Engineering, Inc. Received BBA in Marketing from Texas A &M University - College Station and MBA from Texas A &M University- Corpus Christi. Activities Include: Nueces County A &M Club, Literacy Council, Lector Coordinator at St. Philip the Apostle and Leadership Corpus Christi. (1/7/11) Stephanie Knox Special Events Coordinator, Corpus Christi Chamber of Commerce. Currently studying towards a Master's degree in Communications Studies from Texas A &M University- Corpus Christi. Activities include: Young Business Professionals of the Coastal Bend. (11106112) Iris M. Martinez Director of Education - Project Turnaround, Coastal Bend Wellness Foundation. Received a BA in Communications from Texas A &M University- Corpus Christi. Holds Advanced Certified Prevention Specialist (ACPS) designation. Is an SAPST Trainer for Dept. of State Health Services. Activities include: Leadership Corpus Christi Class 36, Community Coalition for Children and Families, Youth Continuum of Care Coalition, Too Good for Drugs, CB Alliance for Youth, Aransas County Citizens Against Drugs, and Intergovernmental Commission on Drug and Alcohol Abuse volunteer. (12120112) Bryan Mayhood Director of Season Ticket Services, Corpus Christi Hooks Baseball Club. Graduated from Texas A &M University- Corpus Christi. Activities include: Heart Walk Committee. (115111) Evan Paret Planning and Construction Department Student Worker, Texas A &M University- Corpus Christi. Pursuing a BS in Environmental Science, with minor in Business Administration from Texas A &M University- Corpus Christi. Activities include: Student Government Association, TAMUCC Environmental Advisory Council, Young Business Professionals, World Affairs Council of South Texas, Army ROTC Leadership Training, and Church of the Good Shepherd. (07131112) Merced V. Pena Semi - retired. Consultant work with Vamos Productions as Media /Advertising Consultant. Former employment and volunteer activities include: substance abuse counselor training from Del Mar College, Texas Youth Commission volunteer, Alternative Therapies training from CB Council on Alcohol & Drug Abuse, Nueces County Substance Abuse Treatment Facility volunteer, New Beginnings volunteer, substance abuse education and counseling at Nueces County Juvenile Justice Center, counselor with Corpus Christi Drug Abuse Council, and Coastal Bend Intergroup Association. (12118112) Yolanda R. Perez Self- Employed Communication Specialist/Consultant. Received a BA in Communication and an MA in Human Communication from Texas A &M University - Corpus Christi. Media Director and Precinct Chair for the Nueces County Democratic Party. Former Communications Director for Rose Meza Harrison, candidate for U.S. House of Representatives, 27th Congressional District of Texas. (1/30/13) Monica Rawlings Self- Employed Professional Landman in the Oil & Gas Industry. Holds a Bachelor of Arts degree from Texas A &M University - Corpus Christi. Activities include: worked with City Park & Rec. Dept. in project to save Winrock Park in the Club Estates subdivision, current Chair of the 2012 St. James Episcopal School Halloween Carnival, member Friends of St. James (PTA). (At Large) (8/27/12) Belinda Rocha Director of Fund Development, Girl Scouts of Greater South Texas. Received an AAS Degree in Legal Secretarial from Del Mar College. Activities include: Leadership Corpus Christi Class XL, Optimist Club of Downtown Corpus Christi, Young Business Professionals, Hispanic Women's Network, and Westside Business Association. Committees served: Hispanic Women's Las Estrellas, CC Hispanic Chamber's Voices Unidas, Girl Scouts' Power of the Purse. (07125112) Gail Tatum Elementary Counselor, Smith Elementary (CCISD). Certified Educator K -8. Has 20 years of teaching experience and 10 years of counseling experience. Also conducts PDM — planning /decision making for Smith Elementary. Activities include: Works with CASA, Family Outreach, PCHAS, PAC, has written educational lessons for Science and History Museum, the Bats Conservation International and Modern Curriculum Press. (08/10/12) Matt Teifke, Jr. Realtor, Garron Dean & Associates Realtors. Currently 3rd year student at Texas A &M University — Corpus Christi, with History major, Social Work minor. Activities include: Big Brothers/Big Sisters of South Texas. (4127112) Angela Munselle -Woods Self- employed/Home repair company. Former Realtor /business owner. Attended Real Estate Institute. Licensed Texas Realtor. She is very interested in getting involved in helping the City in any capacity. (1110113) Jo Woolsey Self- Employed, Woolsey Legal Services. Attended Victoria Junior College. Previously worked in Legal field in Corpus Christi, now self - employed in Legal field. Activities include: Member of the Athenian Club. (7131112) b. CABLE COMMUNICATIONS COMMISSION — Two (2) vacancies with terms to 7 -27 -13 and 7- 27 -14. DUTIES: To advise the City Council on adherence to the provisions of any franchise agreement approved by the City Council, recommend regulations, encourage, develop and promote the use of access channels, assure that access channels offer a diversity of programming and services, work with user groups to develop sources of funding, conduct evaluations of the cable system and review and audit reports, and advise the City Council on rate adjustment requests. COMPOSITION: It shall consist of five residents of the City of Corpus Christi appointed by the City Council. No person or employee with ownership interest in a cable communications franchise granted by the city shall be eligible for membership on the commission. Each commission member is encouraged to have access to local cable communications system programming. The commission shall select from its membership a chairperson and a vice - chairperson whose terms shall be one year. MEMBERS Walter DeVille Leo Estrada * * * *Trina Garcia ****Connie Gutierrez Lyle Smitson Legend: *Seeking reappointment "Not seeking reappointment ***Resigned * * * *Exceeded number of absences allowed by ordinance * * * * *Has met six -year service limitation ORIGINAL TERMS APPTD. DATES 7 -27 -15 9 -11 -12 7 -27 -14 2 -12 -08 7 -27 -14 7 -12 -11 7 -27 -13 1 -10 -06 7 -27 -15 9 -11 -12 (The Cable Communications Commission is recommending the new appointments of Edward Pett#ohn and Mary Ann Kelly.) INDIVIDUALS EXPRESSING INTEREST: Mary Ann Kelly Sr. Territory Business Manager & Hospital Sales Manager, Bristol -Myers Squibb Co. Activities include: Corpus Christi Taxpayers Association, and League of Women Voters. (112113) James Lang Retired. Formerly Revenue Tracking and Forecasting Specialist, Quest Communications. Attended the University of Iowa. (417111) Yolanda R. Perez Self- Employed Communication Specialist/Consultant. Received a BA in Communication and an MA in Human Communication from Texas A &M University - Corpus Christi. Media Director and Precinct Chair for the Nueces County Democratic Party. Former Communications Director for Rose Meza Harrison, candidate for U.S. House of Representatives, 27th Congressional District of Texas. (1/30/13) Edward Y. Pettij ohn Retired. Received Associates Degree from Del Mar College. (914112) C. COMMITTEE FOR PERSONS WITH DISABILITIES — Five (5) vacancies with terms to 2- 01 -15. DUTIES: To carry on a program to encourage, assist and enable persons with disabilities to participate in the social and economic life of the city; to achieve maximum personal independence; to become gainfully employed; and to enjoy fully and use all public and private facilities available within the community. COMPOSITION: Nine (9) residents of the city who shall be appointed by the City Council. The membership of the committee shall be composed of individuals with disabilities and representatives of agencies and organizations functioning within the committee's area who are interested in the provision of services to persons with disabilities and others who are interested in the abilities and specific needs of persons with disabilities, subject to Council approval. The city's Director of Human Relations, Director of Park and Recreation, and Building Official shall serve as ex- officio non - voting members. The chairperson of the Committee for Persons with Disabilities shall serve as an ex- officio voting member of the Human Relations Commission. ORIGINAL MEMBERS TERM APPTD. DATE *Carlos Vargas, Chair 2 -01 -13 11 -11 -08 *Darren Bates, Vice -Chair 2 -01 -13 3 -09 -10 *****Harvey Salinas 2 -01 -13 2 -20 -07 *Sabrina Ramirez 2 -01 -13 4 -12 -11 *Alana Manrow 2 -01 -13 8 -31 -10 M. Bertha Romero 2 -01 -14 2 -09 -10 Donnie Contreras 2 -01 -14 3 -20 -12 Mary E. Wambach 2 -01 -14 9 -25 -12 David Ramos 2 -01 -14 9 -25 -12 Park & Recreation Director Ex- officio Human Relations Director Ex- officio Building Official Ex- officio Legend: *Seeking reappointment "Not seeking reappointment ***Resigned * ** *Exceeded number of absences * * * * *Has met six -year service limitation (The Committee for Persons with Disabilities is recommending the reappointments of Carlos Vargas, Darren Bates, Sabrina Ramirez and Alana Manrow. They are also recommending the new appointment of Judah Hoehne.) ATTENDANCE RECORD OF MEMBERS SEEKING REAPPOINTMENT NAME Carlos Vargas Darren Bates Sabrina Ramirez Alana Manrow NO. OF MTGS. THIS TERM 11 11 11 11 NO. PRESENT 10 (1 -exc.) 8 (2 -exc.) 8 (2 -exc.) 6 (5 -exc.) OTHER INDIVIDUALS EXPRESSING INTEREST: % OF ATTENDANCE LAST TERM YEAR 91% 73% 73% 55% Marshall Burns Mobility Coordinator, Corpus Christi Regional Transportation Authority. Received a BA in Psychology from Texas A &M University - Corpus Christi. Activities include: Served on Regional Committee for Accessible Transportation (RCAT), and Easter Seals' Foundation's Accessible Transportation Coalition Initiative Access Team. (2/06/12) Larisa Ford, Ph.D., MPA Senior Biologist, U.S. Fish & Wildlife Service. Received a B.S. in Marine Biology from Texas A &M University - Galveston, an M.S. in Microbiology from Texas A &M University - College Station, a Ph.D. in Veterinary Microbiology (Minor: Fisheries) from Louisiana State University and a Masters of Public Administration (Environmental Track) from Texas A &M University- Corpus Christi. Former Educator, Sinton ISD. Certified Fisheries Scientist, Certified Open Water SCUBA Diver. Activities include: Served as a Special Emphasis Program Coordinator for Disabilities at U.S. Fish & Wildlife Southwest Region 2, former Coordinator for the Youth Conservation Corp Program at Aransas National Wildlife Refuge, International Association for Aquatic Animal Medicine, World Aquaculture Society, American Society for Microbiology. Coached Corpus Christi Little League Boys & Girls basketball. (1103111) Judah Hoehne President/CEO, Judahfest, Inc. Pursuing a degree in Business with a minor in Communication at Del Mar College. Presides as President/CEO of local, non - profit corporation called Judahfest. Activities include: Optimist Foundation of Downtown Corpus Christi. (9121112) Linda L. Lindsey Retired 26 -year Educator /Coach. Received undergraduate from Texas Tech University, undergraduate in Physical Education from Texas A &M University — Corpus Christi, and a Master's in Educational Administration. Took 24 graduate hours in Special Education. Her passion is facilitating students and special needs persons to be "the best they can be" through education, recreation and community involvement. Activities include: Second Baptist Church. (9117112) Anthony John Mulheron Quality Control Inspector, L3. Owner, AIM Tactical. Attends Liberty University Online. Activities include: Wounded Warrior Project. (5102111) Brian Solarek Global Services & Support Logistics Leader, The Boeing Co. Received a Masters degree in Organizational Dynamics. Very willing and interested to serve on a City Board. (09125112) Lillian Taylor Administrative Assistant, Coastal Bend Center for Independent Living (CBCIL). Works with people with disabilities on a daily basis. (3106112) d. ELECTRICAL ADVISORY BOARD — Seven (7) vacancies representing the following with terms to 12- 31 -14: 1 — Master Electrician, 1 — Utility Power Distribution rep., 1 — Journeyman Electrician, 1 — Home Builder, 1 — Electrical Engineer, 1 — Electrical Supply Business, and 1 — Not Connected to Electrical Industry. Staff is recommending postponement of the Electrical Supply Business category pending further recruitment of applicants. DUTIES: The electrical advisory board shall review grievances filed against any licensed electrical contractor and other grievances filed within the scope of the City Electrical Code, and concur on a proposed alternative material, alternate method of construction, or technical ruling prior to such alternative or ruling becoming effective. Furthermore, the electrical advisory board shall have the power, after having obtained public comment, to recommend to the City Council changes to the City Electrical Code. COMPOSITION: Ten (10) persons appointed by the City Council: two (2) persons with at least five years active experience as a master electrician; one (1) person with at least five years active experience as a journeyman electrician; two (2) engineers: one (1) shall be a registered professional engineer in the State of Texas, and one (1) shall have a Bachelor Degree in Electrical Engineering and a minimum of five years experience in electrical engineering; one (1) person with five years experience in the commercial building industry; one (1) person with five years experience in the home building industry; and one (1) member, resident of Corpus Christi, not connected with the electrical industry.; one (1) person who shall be a field representative from a utility power distribution company that services the Corpus Christi area and have had at least five (5) years of experience; and one (1) person who shall have at least five (5) years of experience in the electrical supply business. Six (6) members of the Board constitute a quorum, and concurring vote of not less than six (6) members is necessary to constitute an official action of the Board. MEMBERS Kevin L. Martinez (Master Elec.) * * * * *Michael S. Riley (Master Elec.), Chair *****Billy Ashcraft (Utility Power Distribution rep.) * * * * *Bhaskar Patel (Not conn. to elec. industry) *Jesse Gatewood (Journeyman Elec) Jared M. Merdes, P.E. (Reg. Engineer) David Schury (Commercial Builder) *William "Kevin" Pitchford (Home Builder) *Steven Deases (Electrical Eng) * * * * *Don Fretwell (Electrical Supply Business) Legend: *Seeking reappointment "Not seeking reappointment ***Resigned * ** *Exceeded number of absences allowed by ordinance * * * * *Has met six -year service limitation TERM ORIGINAL APPTD. DATE 12 -31 -13 3 -20 -12 12 -31 -12 1-23-07 12 -31 -12 1-23-07 12 -31 -12 1 -23 -07 12 -31 -12 1 -11 -11 12 -31 -13 3 -25 -08 12 -31 -13 2 -12 -08 12 -31 -12 1 -13 -09 12 -31 -12 1 -11 -11 12 -31 -12 1 -23 -07 ATTENDANCE RECORD OF MEMBERS SEEKING REAPPOINTMENT NO. OF MTGS. NO. % OF ATTENDANCE NAME THIS TERM PRESENT LAST TERM YEAR Jesse Gatewood (Journeyman Elec.) 2 2 100% Wm. Kevin Pitchford (Home Builder) 2 1(1 exc.) 50% Steven Deases (Elec. Eng.) 2 1 50% (The Electrical Advisory Board is recommending the reappointments of Jesse Gatewood (Journeyman Electrician), Kevin Pitchford (Home Builder), and Steven Deases (Electrical Engineer) and the new appointments of Robert Aguilar (Master Electrician), Alfred Tristan (Utility Power Distribution Rep.), and Mary Lou Herrera (Not Connected to Electrical Industry)). OTHER INDIVIDUALS EXPRESSING INTEREST: Robert Aguilar Master Electrician, R. Aguilar Electric /Self - employed electrical contractor. Attended Del Mar Vocational College. Activities include: Knights of Columbus, St. Peter's Prince of the Apostle Catholic Church. (Master Electrician) (11105112) Mary Lou Herrera Realtor, Coldwell Banker, Island Realtors. Received BBA from Texas A &M University — Kingsville. Activities include: Communities Enrichment Organization "CEO" annual events sponsor /volunteer. (Not Connected to Electrical Industry) (At Large) (3130112) Alfred J. Tristan Supervisor/Distribution System, AEP Texas. Local high school graduate and two years college with Texas A &I University and Del Mar College. (Utility Power Distribution Co. rep.) (1115113) N REINVESTMENT ZONE NO. THREE BOARD — Nine (9) vacancies with terms to 2 -28 -14 and 2 -28 -15 appointed by the City Council. (Historically, Council Members have been appointed to serve on this boartl.) DUTIES: The Board shall make recommendations to the City Council concerning the administration of the Zone. (The Zone area includes approximately 856 acres encompassing the city's Downtown area along the Bayfront from the SEA -Town complex at the north end, south to Morgan Avenue adjacent to the Christus Spohn Shoreline Hospital, and west to Tancahua Street.) The Board shall prepare and adopt a project plan and reinvestment zone financing plan for the Zone and submit such plans to the City Council for its approval in accordance with Section 311.011, Texas Tax Code. The Board shall exercise other powers and responsibilities with respect to the Zone only to the extent expressly granted by the City Council by ordinance or resolution. COMPOSITION: The Board shall consist of fifteen (15) members. The members shall be appointed as follows: Pursuant to Sec. 311.009(a), Tax Code, the respective governing bodies of each taxing unit other than the City each may appoint one (1) member of the Board. These entities include: Corpus Christi Independent School District, Del Mar College, Downtown Management District, Nueces County, Nueces River Authority and Port of Corpus Christi Authority. Each governing body may waive its right to appoint a Director. The remaining members of the board are appointed by the City Council. The City Council shall have the right to appoint at least ten (10) members, and the board may exceed fifteen (15) members if necessary for the City Council to make said ten (10) appointments. To be eligible for appointment an individual must be a qualified voter of the City; or be at least 18 years of age or older and own real property in the zone. ORIGINAL MEMBERS TERM APPTD. DATE Nelda Martinez (City) 2 -28 -13 2 -28 -12 Mark Scott (City) 2 -28 -13 2 -28 -12 David Loeb (City) 2 -28 -13 2 -28 -12 Kelley Allen (City) 2 -28 -13 2 -28 -12 John Marez (City) 2 -28 -13 2 -28 -12 Priscilla Leal (City) 2 -28 -13 2 -28 -12 Chris N. Adler (City) 2 -28 -13 2 -28 -12 Larry Elizondo, Sr. (City) 2 -28 -13 2 -28 -12 Joe Adame (City) 2 -28 -14 2 -28 -12 R. Xavier Gonzalez (CCISD) 2 -28 -14 Claudia Jackson (Del Mar) 2 -28 -14 John Vidaurri (DMD) 2 -28 -14 (County) 2 -28 -14 (POCCA) 2 -28 -14 f WATERSHORE AND BEACH ADVISORY COMMITTEE — Four (4) vacancies with terms to 12 -11 -14 representing the following categories: 1 — Scientist/Marine Biologist, 1 — Hotel /Condo Owner, and 2 — At Large. Staff is recommending postponement of the Hotel/Condominium Owner on Padre or Mustang Island pending further recruitment of applicants. DUTIES: To advise and make recommendations regarding use or preservation of the following areas within the city limits: the waterfront, the beaches, and the natural bodies of water including but not limited to Gulf of Mexico, bays, rivers, and creeks, excluding the Marina area as defined by Section 2 -264. COMPOSITION: Nine (9) members appointed by the City Council for two -year terms. The membership shall include one (1) Scientist, i.e. Marine Biologist, one (1) Engineer, and one (1) Environmentalist; one (1) shall be an owner of a hotel or condominium located on North Padre Island or Mustang Island; and one (1) shall be a member of the Corpus Christi Convention & Visitors Bureau. The Chairperson of the Watershore and Beach Advisory Committee shall act as an advisor to the Park and Recreation Advisory Committee and vice versa. In the initial appointment members will serve an initial two -year term, in the succeeding term, 5 members will serve a two -year term, and 4 members will serve a one -year term, as determined by drawing. Thereafter, all terms will be two - years. MEMBERS *Jennifer Pollack (Scientist) Cameron Perry (Engineer) Diana C. Del Angel (Environmentalist) * *John Powell (Hotel /Condo Owner) Corbett "Butch" Pool (CVB) Neil McQueen Jay Gardner * * * * *JoAnn Gilbertson *Cody Bates Legend: *Seeking reappointment "Not seeking reappointment ***Resigned * ** *Exceeded number of absences * * * * *Has met six -year service limitation ORIGINAL TERM APPTD. DATE 12 -11 -12 07 -19 -11 12 -11 -13 12 -14 -10 12 -11 -13 06 -12 -12 12 -11 -12 01 -12 -10 12 -11 -13 12 -14 -10 12 -11 -13 12 -11 -07 12 -11 -13 03 -29 -11 12 -11 -12 12 -11 -07 12 -11 -12 12 -14 -10 (The Watershore and Beach Advisory Committee is recommending the reappointments of Jennifer Pollack (Scientist) and Cody Bates (At Large). They are also recommending the new appointment of Carrie Robertson Meyer for At Large.) ATTENDANCE RECORD OF MEMBERS SEEKING REAPPOINTMENT NO. OF MTGS. NO. % OF ATTENDANCE NAME THIS TERM PRESENT LAST TERM YEAR Cody Bates 9 7 78% Jennifer Pollack (Scientist) 9 7 78% OTHER INDIVIDUALS EXPRESSING INTEREST: H. C. "Chuck" Cazalas Retired. Civic Leader. Holds a BS from New Mexico Highlands University and an MA in Psychology (Industrial /Organizational) from The University of Arkansas. Before retirement, former Government and PR with CITGO Refining, prior various HR jobs, Redman Industries, Reynolds Metals (also lobbyist). Activities include: State Pension Trustee, Texas State Review Committee, American Diabetes Assoc. Former activities include: Boy Scouts of America, Kiwanis Club of Corpus Christi, TX Assoc. of Businesses, CC Chamber of Commerce, CC Hispanic Chamber of Commerce, Navy League, CC Botanical Garden, The Salvation Army, CC State School Volunteer Council, Food Bank of Corpus Christi, former City of CC Airport Board, Public Affairs Committee of Port Industries. Former elected Nueces County Commissioner. (At Large) (11/18/11) Sharon Emerson Paralegal, Law Office of Arnold Gonzales, Jr. Activities include: President and Board of Directors of Corpus Christi International Seamen's Center; Live Auction Chair of March of Dimes Celebrity Chefs Auction; former Bayfest Chairman and Chairman of the Mayor's Fourth of July Committee. (At Large) (4119111) Bryan G. Hall Showroom Manager, Janet Maxwell Business Interiors of Texas. Received a Bachelors of Business Administration with a focus on Management from Texas A &M University- Corpus Christi. Activities include: Delta Sigma Pi Fraternity, and volunteers at community events. (At Large) (7/20/12) Scott M. Harris Professional Engineer, HDR Engineering, Inc. Received a B.S. in Civil Engineering from Prairie View A &M University. Currently pursuing an M.A. in Strategic Studies from the Naval War College. He is a 23 -year veteran in our armed forces, completing numerous humanitarian construction proj ects, and served in Operations Iraqi Freedom and USSOUTHCOM. He remains in the Navy Reserves as a Lieutenant Commander and Civil Engineer Corp Officer and serves as the Operations Officers for a Navy Mobile Construction Battalion. Activities and interests include: Scout leader at Nature Conservancy and Blucher Park, history, heritage, geography, reading, South Texas Council of Boy Scouts, Texas State Aquarium, Museum of Science and History, Art Museum of South Texas, Society of American Military Engineers and American Society of Civil Engineers. (Engineer) (At Large) (10131112) Linda L. Lindsey Retired 26 -year Educator /Coach. Received undergraduate from Texas Tech University, undergraduate in Physical Education from Texas A &M University — Corpus Christi, and a Master's in Educational Administration. Took 24 graduate hours in Special Education. Her passion is facilitating students and special needs persons to be "the best they can be" through education, recreation and community involvement. Activities include: Second Baptist Church. (At Large) (9117112) Carrie Robertson Meyer Photographer /Owner, Third Coast Photo. Received a Bachelor of Journalism from the University of Texas at Austin. Activities include: North Beach Task Force and Corpus Christi Beach Association. (At Large) (11102112) Anthony John Mulheron Quality Control Inspector, L3. Owner, AIM Tactical. Attends Liberty University Online. Activities include: Wounded Warrior. (At Large) (5102111) Kevin Karroll Nelson, Ph.D. Post Doctoral Research Associate, Texas A &M University- Corpus Christi. Received a Ph.D. in Coastal and Marine System Science, and an M.S. in Computer Science. Currently conducting water /marine studies in Corpus Christi Bay and Nueces River Delta. (Scientist/Marine Biologist) (At Large) (11120112) Cliff Schlabach Self- employed/Home improvement industry. Activities include: Coastal Bend Surf Rider Foundation, and FBISD Bond Exploration Committee. Also serves on the sub- committee of the Watershore and Beach Advisory Committee, the City's Beach Maintenance Committee. (At Large) (11120112) FAR • Y�t AGENDA MEMORANDUM Future Agenda Item for the City Council Meeting of January 29, 2013 Action Agenda Item for the City Council Meeting of February 12, 2013 DATE: January 16, 2013 TO: Ronald L. Olson, City Manager FROM: Daniel Biles, P. E., Director of Engineering Services danb @cctexas.com (361) 826 -3729 RESOLUTION AUTHORIZING AGREEMENT TO CONTRIBUTE RIGHT OF WAY FUNDS WITH TXDOT SH 358 (South Padre Island Drive) from Nile Drive to Ayers Street (Bond 2012) AGENDA CAPTION: Resolution authorizing the City Manager, or designee, to execute an Agreement to Contribute Right of Way Funds with the Texas Department of Transportation ( TXDOT) for the acquisition of certain rights of way and the relocating and adjusting of utilities within the project's scope of SH 358 (South Padre Island Drive) from Nile Drive to Ayers Street, with the City's participation in the amount of $950,000. (Bond 2012) PURPOSE: The SPID Ramp Reversal on the southside of SPID (SH 358) will alleviate congestion and improve safety at the off ramps between Nile Drive and Ayers Street. Currently the SPID (SH 358) east bound traffic backs up onto the outside travel lane at the off ramps which reduces capacity of SPID and increases risk of accidents due to unexpected stopped traffic. The ramp reversal will allow the free flow of traffic on and off of east bound SPID from Nile Drive to Ayers Street. BACKGROUND AND FINDINGS: The proposed project is a TXDOT project to acquire right -of -way for the SH 358 (South Padre Island Drive) Ramp Reversal from Nile Drive to Ayers Street. This agreement also includes the City's share for reimbursement of relocating and adjusting utilities in conflict with the newly acquired right -of -way. This will include City and non -city utilities which are currently outside the existing right -of -way but will be within the newly acquired right -of -way. The cost for relocating city utilities within the newly acquired project right -of -way, will be fully reimbursed by TxDOT after work is complete and costs are known. K: \ENGINEERING DATAEXC HANG E\LYN DA\LEG I STARTY 13 \1 -JAN 29 \RAMP REVERSAL \MEMO - RAMP REVERSAL.DOCX The City of Corpus Christi will contribute $950,000 for right -of -way acquisition and reimbursement of eligible utility adjustments. The City of Corpus Christi contribution includes the cost of acquiring the right -of -way and relocating or adjusting utilities for the proper improvement of the State Highway System, due upon full execution of the Agreement to Contribute Right -of -Way Funds. ALTERNATIVES: 1. Approve the Resolution for the Agreement to Contribute Right of Way Funds which will allow TXDOT to continue with right -of -way acquisition. 2. Do not approve the Resolution for the Agreement to Contribute Right of Way Funds. OTHER CONSIDERATIONS: This project is subject to Title 43 of the Texas Administrative Code, Part 1, Chapter 15, Sub - chapter E, Rule 15.55. CONFORMITY TO CITY POLICY: This Resolution conforms to the City's Charter. EMERGENCY /NON- EMERGENCY: Not applicable. DEPARTMENTALCLEARANCES: Not applicable. FINANCIAL IMPACT: CIP Street 21 Fiscal Year Project to Date 2012 -2013 Expenditures Current Year Future Years TOTALS (CIP only) Line Item Budget $1,150,000.00 $1,150,000.00 Encumbered / Expended Amount This item $950,000.00 $950,000.00 BALANCE $200,000.00 $200,000.00 Fund(s): Bond Issue 2012, Proposition No. 1 Streets, Streets CIP Project No. 21 Future TXDOT Participation Comments: Reserve monies utilized for future projects. This project will be funded by Bond Issue 2012 Future TXDOT Participation. It will be reimbursed by Bond Issue 2004 and Bond Issue 2008 Funds at a future date as funding allows. TXDOT will refund any excess amount paid by the City. The estimated total payment to the State from the City is $950,000. This is an estimate; and the final amount of the City's participation will be based on actual costs. K: \ENGINEERING DATAEXC HANG E\LYN DA\LEG I STARTY 13 \1 -JAN 29 \RAMP REVERSAL \MEMO - RAMP REVERSAL.DOCX RECOMMENDATION: It is recommended to execute the Agreement to Contribute Right -of -Way Funds with the Texas Department of Transportation (TXDOT) for the project's scope of TXDOT's SH 358 (South Padre Island Drive) Ramp Reversal from Nile Drive to Ayers Street, with the City's participation in the amount of $950,000. LIST OF SUPPORTING DOCUMENTS: Location Map K: \ENGINEERING DATAEXC HANG E\LYN DA\LEG I STARTY 13 \1 -JAN 29 \RAMP REVERSAL \MEMO - RAMP REVERSAL.DOCX SH 358 (South Padre Island Drive) CITY COUNCIL EXHIBIT form Nile to Ayers Street Right of Way CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES (ROW) and Utility Adjustment PAGE: 1 of 1 County: NUECES District: CORPUS CHRISTI -16 ROW CSJ #: 0617 -01 -172 CCSJ #: 0617 -01 -170 and 0617 -01 -177 Federal Project M. Federal Highway Administration CFDA # 20.205 Not Research and Development STATE OF TEXAS § COUNTY OF NUECES § AGREEMENT TO CONTRIBUTE RIGHT OF WAY FUNDS THIS AGREEMENT is made by and between the State of Texas, acting through the Texas Department of Transportation, called the "State ", and the City of Corpus Christi, Texas, acting through its duly authorized officials, called the "Local Government." WITNESSETH WHEREAS, Texas Transportation Code §§ 201.103 and 222.052 establish that the State shall design, construct, and operate a system of highways in cooperation with local governments; and WHEREAS, Texas Transportation Code, §§ 201.209 authorizes the State and a Local Government to enter into agreements in accordance with Texas Government Code, Chapter 791; and WHEREAS, the State has deemed it necessary to make certain highway improvements on Highway No. SH 358 (South Padre Island Drive) from Nile Drive to Ayers Street, and this section of highway improvements will necessitate the acquisition of certain right of way and the relocating and adjusting of utilities, called the "Project"; and WHEREAS, the Local Government requests that the State assume responsibility for acquisition of all necessary right of way and adjustment of utilities for this highway project; and WHEREAS, the Local Government desires to contribute to the State funding participation as defined in 43 TAC §15.55 for the cost of acquiring the right of way and relocating or adjusting utilities for the proper improvement of the State Highway System; WHEREAS, the Governing Body of the Local Government has approved entering into this agreement by resolution or ordinance dated .20___, which is attached to and made a part of this agreement as Attachment A. A map showing the Project location appears in Attachment 8, which is attached to and made a part of this agreement. NOW THEREFORE, the State and the Local Government do agree as follows: Agreement to Contribute ROW Funds Page 1 of 10 Revised 08/30/2011 County. NUECES District CORPUS CHRISTI -16 ROW CSJ t.. 0617 -01 -172 CCSJ It 0617 -01 -170 and 0617 -01 -177 Federal Project * Federal Highway Administration CFDA # 20.205 Not Research and Development reimbursement if the Local Government has not designated a qualified individual to oversee the Project. D. The total cost of the right of way acquired by the State shall mean the total value of compensation paid, either through negotiations or eminent domain proceedings, to the owners for their property Interests, plus costs related to the relocation, removal, or adjustment of eligible utilities. E. Whenever funds are paid by the Local Government to the State under this agreement, the Local Government shall remit a warrant or check made payable to the "Texas Department of Transportation Trust Fund.' The warrant or check shall be deposited by the State in an escrow account to be managed by the State. Funds In the escrow account may only be applied to this highway project. F. Upon completion of the Project, the State will perform an audit of the Project costs. Any funds due by the Local Government or the State will be promptly paid by the owing party. If, after final Project accounting, excess funds remain in the escrow account, those funds may be applied by the State to the Local Government's contractual obligations to the State under another agreement with approval by appropriate personnel of the Local Government. If the Local Government contributes real property under this agreement, this refund provision is subject to the limitation described below in Article 4 (Real Property in Lieu of Monetary Payment). G. The State will not pay interest on any funds provided by the Local Government. H. In the event any existing, future, or proposed Local Govemment ordinance, commissioners court order, rule, policy, or other directive. Including, but not limited to, outdoor advertising or storm water drainage facility requirements, is more restrictive than State or federal regulations, or any other locally proposed change, including, but not limited to, plats or re- plats, results in any Increased costs to the State, then the Local Government will pay one hundred percent (100 %) of all those Increased costs, even if the applicable county qualifies as an Economically Disadvantaged County (EDC). The amount of the increased costs associated with the existing, future, or proposed Loral Government ordinance, commissioner's court order, rule, policy, or other directive will be determined by the State at its sole discretion. I. If the Local Government is an EDC and If the State has approved adjustments to the standard financing arrangement, this agreement reflects those adjustments. J. If the Project has been approved for a "fixed price" or an "incremental payment' non- standard funding or payment arrangement under 43 TAC §15.52, the budget In Attachment C will dearly state the amount of the fixed price or the Incremental payment schedule. 4. Real Property In Lieu of Monetary Payment A. Contributions of real property may be credited to the Local Government's funding obligation for the cost of right of way to be acquired for this project. Credit for all real property, other than property which is already dedicated or in use as a public road, contributed by the Local Government to the State shall be based on the property's fair Agreement to Contribute ROW Funds Page 3 of 10 Revised 08/30/2011 County: NUECES District CORPUS CHRISTI -16 ROW CSJ #: 0617 -01 -172 CCSI #: 0617 -01 -170 and 0617 -01 -177 Federal Project #: Federal Highway Administration CFDA # 20.205 Not Research and Development market value established as of the effective date of this agreement The fair market value shall not include Increases or decreases in value caused by the project and should include the value of the land and improvements being conveyed, excluding any damages to the remainder. The amount of any credit for real property contributed for this project is dearly shown in Attachment C. B. The Local Government will provide to the State all documentation to support the determined fair market value of the donated property. This documentation shall Include an appraisal of the property by a licensed appraiser approved by the State. The cost of appraisal will be the responsibility of the State. The State will review the submitted documentation and make a final determination of value; provided however, the State may perform any additional investigation deemed necessary, including supplemental appraisal work by State employees or employment of fee appraisers. C. Credit shall be given only for property transferred at no cost to the State after the effective date of this agreement and the issuance of spending authority, and only for property which is necessary to complete this project has title acceptable to the State, and is not contaminated with hazardous materials. Credit shall be in lieu of monetary contributions required to be paid to the State for the Local Govemmenrs funding share of the right of way to be acquired for this project. The total credit cannot exceed the Local Govemmenrs matching share of the right of way obligation under this agreement, and credits cannot be reimbursed in cash to the Local Govemment. applied to project phases other than right of way, nor used for other projects. D. In the event the Local Government's monetary contributions to the State for acquisition of right of way, when added to its real property credits, exceed the Local Govemmenrs matching share of the fight of way obligation, there will be no refund to the Local Government of any portion of its contributed money. 5. Amendments Amendments to this agreement due to changes in the character of the work, terns of the agreement, or responsibilities of the parties relating to the Project may be enacted through a mutually agreed upon, written supplemental agreement G. Notices All notices to either party by the other required under this agreement shall be delivered personally or sent by certified or U.S. mail, postage prepaid, to the following addresses: Agreement to Contribute ROW Funds Page 4 of 10 Revised 08/30 12011 The Honorable Nelda Martinez Mayor of the City of Corpus Christi P.O. Box 9277 Corpus Christi, TX 78469 County. NUECES District: CORPUS CHRISTI -16 ROW CSJ M 0617 -01 -172 CCSJ #: 0617 -01 -170 and 0617 -01 -177 Federal Project #: Federal Highway Administration CFDA # 20.205 Not Research and Development State: Director of Right of Way Division Texas Department of Transportation 125 E. 11 a, Street Austin, Texas 78701 All notices shall be deemed given on the date delivered or deposited in the mail, unless otherwise provided by this agreement. Either party may change the above address by sending written notice of the change to the other party. Either party'may request in writing that notices shall be delivered personally or by certified U.S. mail and that request shall be honored and carried out by the other party. T. Remedies This agreement shall not be considered as specifying the exclusive remedy for any agreement default, but all remedies existing at law and in equity may be availed of by either party to this agreement and shall be cumulative. 8. Legal Construction If one or more of the provisions contained in this agreement shall for any reason be held Invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions and this agreement shall be construed as if it did not contain the Invalid, illegal, or unenforceable provision. 9. Responsibilities of the Parties The State and the Local Government agree that neither party Is an agent, servant, or employee of the other party and each party agrees It is responsible for its individual acts and deeds as well as the acts and deeds of its contractors, employees, representatives, and agents. 10. Compliance with Laws The parties shall comply with all federal, state, and local laws, statutes, ordinances, rules and regulations; and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of this agreement. When required, the Local Government shall furnish the State with satisfactory proof of this compliance. Agreement to Contribute ROW Funds Page 5 of 10 Revised 08/30/2011 County: NUECES District: CORPUS CHRISTI -16 ROW CSJ M 0617 -01 -172 CCSJ * 0617 -01 -170 and 0617 -01 -177 Federal Project It Federal Highway Administration CFDA # 20.205 Not Research and Development 11. Sole Agreement This agreement constitutes the sole and only agreement between the parties and supersedes any prior understandings or written or oral agreements respecting the subject matter of this agreement. 12. Ownership of Documents Upon completion or termination of this agreement, all documents prepared by the State shall remain the property of the State. All data prepared under this agreement shall be made available to the State without restriction or limitation on their further use. All documents produced or approved or otherwise created by the Local Government shall be transmitted to the State in the form of photocopy reproduction on a monthly basis as required by the State. The originals shall remain the property of the Local Government. At the request of the State, the Local Government shall submit any information required by the State in the format directed by the State. 13. Inspection of Books and Records The Local Government shall maintain all books, papers, accounting records and other documentation relating to costs incurred under this agreement and shall make such materials available to the State and, if federally funded, the Federal Highway Administration (FHWA) or their duly authorized representatives for review and inspection at its office during the contract period and for four (4) years from the date of completion of work defined under this agreement or until any impending litigation, or claims are resolved. Additionally, the State and FHWA and their duly authorized representatives shall have access to all the governmental records that are directly applicable to this agreement for the purpose of making audits, examinations, excerpts, and transcriptions. 14. State Auditor The state auditor may conduct an audit or investigation of any entity receiving funds from the State directly under this agreement or indirectly through a subcontract under this agreement. Acceptance of funds directly under this agreement or indirectly through a subcontract under this agreement acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. An entity that Is the subject of an audit or investigation must provide the state auditor with access to any Information the state auditor considers relevant to the investigation or audit. 15. Procurement and Property Management Standards The parties shall adhere to the procurement standards established in Title 49 CFR §18.36 and with the property management standard established in Title 49 CFR §18.32. Agreement to Contribute ROW Funds Page 6 of 10 Revised 08/30/2011 County. NUECES District: CORPUS CHRISTI -16 ROW CSJ It 0617 -01 -172 CCSJ * 0617 -01 -170 and 0617 -01 -177 Federal Project #: Federal Highway Administration CFDA # 20.205 Not Research and Development 18 USC 1001 and the Program Fraud Civil Remedies Act of 1986 (31 USC 3801 et seq.). F. Each contract the Local Government signs with a contractor (and each subcontract the prime contractor signs with a sub - contractor) must include the following assurance: The contractor, sub - recipient, or sub - contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT - assisted contracts. Failure by the contractor to cant' out these requirements is a material breach of this agreement, which may result In the termination of this agreement or such other remedy as the recipient deems appropriate. 20. Debarment Certification The parties are prohibited from making any award at any tier to any party that is debarred or suspended or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549, "Debarment and Suspension." By executing this agneement, the Local Government certifies that it is not currently debarred, suspended, or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549 and further certifies that it will not do business with any party that is currently debarred, suspended, or otherwise excluded from or ineligible for participation in Federal Assistance Programs under Executive Order 12549. The parties to this contract shall require any party to a subcontract or purchase order awarded under this contract to certify its eligibility to receive federal funds and, when requested by the State, to furnish a copy of the certification. 21. Lobbying Certification In executing this agreement, each signatory certifies to the best of that signatory's knowledge and belief, that: A. No federal appropriated funds have been paid or will be paid by or on behalf of the parties to any person for Influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress In connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering Into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. S. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with federal contracts, grants, loans, or cooperative agreements, the signatory for the Local Government shall complete and submit the Federal Standard Form -LLL, "Disclosure Form to (Report Lobbying," In accordance with Its instructions. Agreement to Contribute ROW Funds Page 8 of 10 Revised 08/30/2011 Signatory Each signatory ! ! ry has necessary authority to execute this agreement on behalf of the entity represented. # ! ' ! # "Mil Title John P. sir Director, Right of Texas Department of Transportation Agreement to Contribute ROW Funds Page 10 of 10 Revised 08/30/2011 County: NUECES District CORPUS CHRISTI -16 ROW CSJ #: 0617 -01 -172 CCSJ A 0617 -01 -170 and 0617 -01 -177 Federal Projed * Federal Highway Administration CFDA # 20.205 Not Research and Development ATTACHMENT A RESOLUTION OR ORDINANCE Agreement to Contribute ROW Funds Page 1 of 1 Attachment A County. NUECES District: CORPUS CHRISTI -16 ROW CSJ V. 0617 -01 -172 CCSJ #: 0617 -01 -170 and 0617 -01 -177 Federal Project #: Federal Highway Administration CFDA # 20.205 Not Research and Development ATTACHMENT B LOCATION MAP SHOWING PROJECT This agreement covers the entire project limits. Agreement to Contnk to ROW Funds Page 1 of 2 Attachment 6 4-- Gi le - �1T i z I G " A® FI a. �z w� °� r� �0 1�1 li1 �y Wz �D6 z° �N �F W � D i W f`III Q 1 r F- 2 U a gN Z { I i -1 vur is��r 4Q�N Y { qo 00 �8 8� J NQ I.L x.11.) Z W QQN ;m n I r " W ' W J ' J � " " O M �o� ZH� go a'u+ IO W � .:. V JrLL .a ZOO W � � � Z�n IN m CUUUJ W urn u�.nic w - .'1 NWwm U !� � 2 N s Z J a J V ip V� N .'s m J W WN 24s W Wa ui O d N W X f N t N N N 9; .4 Ely -to N ri hA W► 06 00 { 00 laii$I V � q � a % C a � O L1 .� z u 1 -'mot u i �obSf ,j�i 9�J�AAE6 M h= b°a N ~ «Yln uun :MN QuN g 0�o r d X � `\ rJy /� 6 a a g Z U_ La aa 4p iJ{y ► J WY-4 < r< N � •' Z r W r A 4 y WO O !2 �co x WOO- 2$ rn <o r¢ r a MW w z a .Vi .0 RN16 0� Mf Z q� � iEY- xtieea yCtfACtt t 9f xgJ�� gg� ni��� IN Sg� a a 1 Jr000 ..•�� ass.: y Lyy r S Air iti if iii� ri hA W► 06 00 { 00 laii$I V � q � a % C a � O L1 .� z u 1 -'mot u i �obSf ,j�i 9�J�AAE6 M h= b°a N ~ «Yln uun :MN QuN g 0�o r d X � `\ rJy /� 6 a a g Z U_ La aa 4p iJ{y ► J WY-4 < r< N � •' Z r W r A 4 y WO O !2 �co x WOO- 2$ rn <o r¢ r a MW w z a .Vi .0 RN16 0� Mf Z q� � iEY- xtieea yCtfACtt t 9f xgJ�� gg� ni��� IN Sg� a a 1 Jr000 ..•�� ass.: y Lyy County. NUECES District CORPUS CHRISTI -16 ROW CSJ #. 0617 -01 -172 CCSJ #: 0617 -01 -170 and 0617 -01 -177 Federal Project * Federal Highway Administration CFDA # 20.205 Not Research and Development ATTACHMENT C PROJECT BUDGET ESTIMATE AND PAYMENT SCHEDULE Agreement to Contribute ROW Funds Page 1 of 2 Attachment C SH 358: Nucces County Limits: From Nile Drive to Ayers Street RCSJ: 0617.01 -172, CCSJ: 0617 -01 -170 and 0617 -01 -177 Standard Agreement to Contribute State Performs Work Fixed Price or incremental Payments Attachment C Description Total Estimated State PaMcipation Local Participation Cost % Cost % cost Right of Way $6,200,000.00 90% $5,580,000.00 10% $620,000.00 Acquisition Reimbursable Utility $3,300,000.00 90% $2,970,000.00 10% $330,000.00 Adjustments Joint Bid Reimbursable $0 0% $0 0% $0 Utility Adjustments $0 0% $0 0% $0 $0 0% $0 0% $0 TOTAL $9,500.000.00 90%1$8.550,000.00 10% $950,000.00 Local Government requested approval for incremental payments of its funding obligation pursuant to 43 TAC §15.52 and the executive Director has approved the request. Attached is completed Special Approval Form — DIED Approval. Initial payment by the Local Government to the State with execution of agreement. Fixed Price: $950.000.00 or the following incremental payment schedule. N/A This is an estimate. The final amount of Local Government participation will be based on actual costs. R:1Project DeliverylROW\RSMILPA and PROJECT DWORMATIOMCRP LPA Agmements10617-01- 172 Attachment C - Funding Schedule - State Performs Worlcdoc Rev. 021022012 Resolution authorizing the City Manager or designee to execute an Agreement to Contribute Right of Way Funds with the Texas Department of Transportation for the acquisition of certain rights - of -way and the relocating and adjusting of utilities within the project's scope of SH 358 (South Padre Island Drive) from Nile Drive to Ayers Street, with the City's participation in the amount of $950,000. 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 Agreement to Contribute Right of Way Funds with the Texas Department of Transportation, with the City's participation in the amount of $950,000, for the acquisition of certain rights -of -way and the relocating and adjusting of utilities within the project's scope of SH 358 (South Padre Island Drive) from Nile Drive to Ayers Street. ATTEST: Armando Chapa City Secretary THE CITY OF CORPUS CHRISTI Nelda Martinez Mayor J: \1.ENG \1 ..... AGENDA IT E M S\2013 \012913 \012913 RESO Agrmt to Contribute Funds SPID Nile to Ayers $95,000.docx Corpus Christi, Texas of The above resolution was passed by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott J: \1.ENG \1 ..... AGENDA IT E M S\2013 \012913 \012913 RESO Agrmt to Contribute Funds SPID Nile to Ayers $95,OOO.docx AGENDA MEMORANDUM Future Item for the City Council Meeting of January 29, 2013 1852 Action Item for the City Council Meeting of February 12, 2013 DATE: January 3, 2013 TO: Ronald L. Olson, City Manager FROM: Mark Van Vleck, Interim Director, Development Services MarkVV@cctexas.com (361) 826 -3246 Request for a Deferment Agreement with 15T Investments, LLC, developer /owner of Airport Industrial Subdivision, Block 13 Lot 2 CAPTION: Motion finding reasonable cause exists to delay completion of public improvements in accordance with Section 8.1.10. B of the Unified Development Code and authorizing the City Manager, or designee, to execute a deferment agreement with 15T Investments LLC ( "Developer /Owner "), in the amount of $221,846.54 for public wastewater and water improvements to the property located at the Southside of State Highway 44 East of Heinsohn Road and West of North Padre Island Drive, contingent upon receipt of a letter of credit approved by the City prior to the filing of the final plat by the Developer. PURPOSE: Allow the Developer to record the plat and thus allow a building permit to be issued for the start of construction. BACKGROUND AND FINDINGS: 15T Investments, LLC, is requesting a Deferment Agreement for the platting and development of Airport Industrial Subdivision Block 13 Lot 2, as shown on the final plat. The subdivision is at the Southside of State Highway 44 East of Heinsohn Road and West of North Padre Island Drive. The proposed improvements will provide adequate wastewater and water to the proposed development. A layout of existing and proposed improvements is included as shown in Exhibit 2 of the deferment agreement. ALTERNATIVES: Denial of the Deferment Agreement OTHER CONSIDERATIONS: Not applicable CONFORMITY TO CITY POLICY: The developer will be extending waste water and water to serve the proposed development and has requested a Deferment Agreement, as provided in the Unified Development Code. EMERGENCY /NON- EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Legal Finance FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital K Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: Not Applicable RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Deferment Agreement with Exhibits Exhibit 1: Final Plat Exhibit 2: Plans and Specifications Exhibit 3: Engineer's Cost Estimate Exhibit 4: Disclosure of Interest Deferment Agreement Between 15T Investments, LLC and the City Page I of 9 DEFERMENT AGREEMENT STATE OF TEXAS § COUNTY OF NUECES § This Agreement is entered into between the City of Corpus Christi, Texas, a Texas home rule municipality, (hereinafter "City") and 15T Investments, LLC, (hereinafter "'Developer /Owner "), and pertains to deferral of the required completion of certain required improvements prior to filing the final plat of Airport Industrial Subdivision, Block 13, Lot 2 (the "plat"), which was approved by the Planning Commission on July 18, 2012. A copy of the plat is attached and incorporated as Exhibit 1. WHEREAS, the Developer/Owner is obligated under Section 8.1.11, of the Unified Development Code to construct seventy-five percent (75%) of the required improvements, before the final plat is endorsed by the City Engineer. Detailed construction drawings must be provided by the Developer/Owner and approved by the City's Departments of Development Services and Engineering prior to the start of construction; WHEREAS, the Developer/Owner is seeking to defer, for a period up to five (5) years, the construction of the wastewater and water improvements (hereinafter the "deferred improvements"), as shown in Exhibit 2, and further, on December 19, 2012, the Planning Commission made a finding that there exists probable cause to delay the completion of public improvements, in accordance with 8.1.10.13 of the Unified Development Code; WHEREAS, the Developer/Owner is seeking to have the plat filed immediately with the County Clerk of Nueces County, Texas, before completion of seventy-five percent (75%) of the required improvements as required by Section 8.1.11 of the Unified Development Code; WHEREAS, the Developer/Owner will deposit, with the City, an irrevocable letter of credit in, the amount of Two Hundred Twenty-One Thousand Eight Hundred Forty-Six and 54/100 Dollars ($221,846.54), representing 110% of the estimated cost of constructing the deferred improvements, all as shown on the attached cost estimate, which is attached and incorporated as Exhibit 3; WHEREAS, the City Attorney and Director of Finance have approved this transaction; WHEREAS, the Developer/Owner has completed all other subdivision requirements, park dedications, park deferment agreements, and maintenance agreements and all special covenants; WHEREAS, the Developer/Owner is entering into this Deferment Agreement as required by Section 8.1.10.8. of the Unified Development Code; NOW, THEREFORE, for the consideration set forth hereinafter, the City and Developer/Owner agree as follows: K:%DEVELOPMENT SERVICES\DEFEHMENTA(3REEMENTS\AIRPORT INDUSTRIAL SUBDIVISION, BLOCK 13, LOT 2 Deferment Agreement Between IT Investments, LLC and the City Page 2 of 9 The City shall waive the requirement that construction of the deferred improvements be completed before the final plat is endorsed by the City Engineer and filed for record with the County Clerk of Nueces County and further agrees to allow the Developer/Owner to defer construction of the deferred improvements as shown in Exhibit 2, for up to five (5) years year from the date of this Deferment Agreement. 2, The Developer/Owner agrees to deposit Two Hundred Twenty-One Thousand Eight Hundred Forty-Six and 54/100 Dollars ($221,846.54), in the form of an irrevocable letter of credit issued by a bank with offices in Corpus Christi, TX, for 110% of the estimated cost of constructing the required improvements, as shown in Exhibit 3, which is attached to and incorporated into this Agreement, with the City of Corpus Christi on or before the plat is filed with the County Clerk, and if the deposit is not made by that time this Agreement shall become null and void. The form of the letter of credit must be approved by the City's Director of Financial Services. 3. The Developer/Owner shall construct the deferred improvements, in accordance with the City's engineering standards in effect at the time of construction. 4. Upon completion of the deferred improvements by Developer/Owner within five (5) years from the date of this Agreement, or later time as may be mutually agreed upon in writing by both parties, and upon acceptance of the deferred improvements by the City Engineer and upon compliance by the Developer/Owner with the remaining terms of the Deferment Agreement, the City Engineer shall: a. Immediately release Developer/Owner from the obligations to construct the deferred improvements by mailing a Release Letter to: Developer/Owner: 15T Investments, LLC P.O. Box 261037 Corpus Christi, Texas 78406 b. Return to the Developer/Owner within sixty (60) days of the completion of the construction of the deferred improvements and settlement of the construction costs, or within sixty (60) days of acceptance of the deferred improvements, whichever is later, any balance remaining of all monies received by the City from the Developer/Owner including any interest earned. 5. If the deferred improvements have not been completed within five (5) years from the date of this Agreement, or if the Developer/Owner fails to deposit any increased security as set out below, after notice to the Developer/Owner and opportunity to cure as stated in Paragraph 9 below, the City will transfer the money received, including any interest earned, to the appropriate City fund and the City may begin completion of the construction of the deferred improvements. If City constructs all or any part of the required improvements, the shall reimburse the City for any additional cost of the deferred improvements, if the K:MEVELOPMENT SERVICMDEFERMENT AGREEMENTS\AIRPORT INDUSTRIAL SUBDIVISION, BLOCK 13, LOT 2 Deferment Agreement Between 15T Investments, LLC and the City Page 3 of 9 sum of money and interest prove inadequate to complete deferred improvements within thirty (30) days after City completes the required improvements and bills the Developer/Owner. 6. The City and Developer/Owner agree that if the Developer/Owner formally vacates the current plat, with approval of the Planning Commission, prior to the deadline for completion of the construction of the deferred improvements, any money received by the City from the Developer/Owner remaining on deposit, plus interest earned, will be released and immediately returned to the Developer. 7. If Developer/Owner defaults in any of its covenants or obligations under this Deferment Agreement, the City Engineer will send the Developer/Owner and the Project Engineer written notice by certified mail, return receipt requested, advising Developer/Owner of the default and giving Developer/Owner thirty (30) days from date of receipt of the letter to cure the default. If the Developer/Owner fails to cure the default after receipt of the notice and opportunity to cure, the City Engineer may transfer any monies received and interest earned to the appropriate fund of the City to complete the deferred improvements. In the event there are any monies received by the City from the Developer /Owner, plus interest earned, remaining after the City has completed construction of the deferred improvements, the excess monies, both principal and interest, shall be refunded to the Developer /Owner, within sixty (60) days of the completion of construction of the wastewater and water improvements and settlement of construction contracts, & The City reserves the right not to issue Certificates of Occupancy for this development until the deferred improvements are installed and accepted by the City Engineer. 9. The Developer/Owner agree that the City, after notice in writing to the Developer/Owner and Project Engineer, may accelerate payment or performance or require additional financial security when the City Engineer deems itself insecure as to the prospect of payment or performance on a demonstrated reasonable basis. 10. The Developer/Owner covenant to construct the deferred improvements, and that this covenant shall be a covenant running with the land. 11. The City Engineer, at Developer /Owner's expense, shall file of record this Deferment Agreement in the records of Nueces County. 12. No party may assign this Deferment Agreement or any rights under this Agreement without the prior written approval of the other party. 13. Unless otherwise stated herein, any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery, by fax, or by certified mail, and if given personally, by fax or by certified mail, shall be deemed sufficiently given if addressed to the appropriate party at the address noted KADEVELOPMENT SERVICE&DEFERMENT AGREEMENT&AIRPORT INDUSTRIAL SUBDIVISION, BLOCK 13, LOT 2 Deferment Agreement Between 15T Investments, LI-C and the City Page 4 of 9 above the signature of the party. Any party may, by notice to the other in accord with the provisions of this paragraph, specify a different address or addressee for notice purposes, 14. This Agreement shall be construed under and in accord with the laws of the State of Texas and all obligations of the parties created hereunder are performable in Nueces County, Texas, and all lawsuits pursuant hereto shall be brought in Nueces County, Texas. 15. The Developer/Owner further agrees, in compliance with the City of Corpus Christi Ordinance No. 17113, to complete, as part of this Agreement, the Disclosure of Ownership interests form attached to this Agreement as Exhibit 4. 16. 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 signature. 17. This Agreement shall be executed in triplicate, all original copies of which shall be considered one instrument. *This Agreement becomes effective and is binding upon, and inures to the benefit of the City and Developer/Owner from and after the date that all original copies have been enecuted by all signatories. --" ")X EXECUTED IN Triplicate originals this* -4` day of 20 19L- Developer/Owner: 15T Investments, LLC P.O. Box 261037 CCR-us 9firisti, Texas 78406 By: Steven W. Tipps,'Manager THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on Steven W. Tipps, Manager, of 15T Investments LLC, on behalf of said company. �(- - Notary 1—ic, "tat of Texas )fc 2012, • Texas Limited Liability CompanX KADEVELOPMENT SERVICES\DEFERMENT AGREEMENTSWRPORT INDUSTRIAL SUBDIVISION, BLOCK 13, LOT 2 --------- - CATHERINE GARZA NOTARY PUBLIC State ol Texas Coffn, F-v• 12-05.2015 ATTEST: 0 Armando Chapa City Secretary THE STATE OF TEXAS § COUNTY OF NUECES § Deferment Agreement Between 15T Investments, LLC and the City Page 5 of 9 CITY OF CORPUS CHRISTI: P. O. Box 9277 Corpus Christi, Texas 78469 Telephone: (361) 880-3500 Facsimile: (361) 880-3501 0 Wes Pierson Assistant City Manager This instrument was acknowledged before me on the day of 2012, by Armando Chapa, City Secretary, for the City Of Corpus Christi, a Texas municipal corporation, on behalf of the corporation. Notary Public, State Of Texas THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on the day of 2012, by Wes Pierson, Assistant City Manager, for the City Of Corpus Christi, a Texas municipal corporation, on behalf of the corporation. Notary Public, State Of Texas APPROVED AS TO FORM: This Carlos Valdez, City Attorney Elizabeth Hundley Assistant City Attorney For the City Attorney day of KADEVELOPMENT SERVICES\OEFERMENT AGREEMENTSWR PORT INDUSTRIAL SUBDIVISION, BLOCK 13, LOT 2 W-111 i o Cq S- n�� =�� i ff SAO N H la! 8- K LL z a ss u ` p ro �A u w its4 N CL $ sa�f I `r c .5. ='iM is A...c,Iz,niS j IE ] b E05 SS3 r,.V tl kba fSJ NiM1 }S • # SITE EXHIBIT SHOW NG OFFSITE SANITARY SEWER AND WATER IMPROVEMENTS, AIRPORT INDUSTRIAL SUBDIVISION,KK 13, LUl d 1, ® 800' BASS AND WELSI CORPUS CHRISTI, SURVEY REG. NC lY ENGINEERING FILE: EXB-1, JOI SCALE: 1° = 60 PLOT SCALE: SO 10/10/12, SHEE EXHIBIT 2 MURRAY BASS, JR., P.E.,R.P.LS. 3054 S. ALAMRDA, zip 78404 NIXON M. WELsH, P.E.,R.P.L.S. 361 882-5521— FAX 361882-1265 www.b ass - welsh com e-mail: murfayjr@aol-com e-mail: nixmw@aol.com BASS & WELSH ENGINEERING Engineering Firm Reg. No. P-52 Surveying Firm Reg. No. 100027-00 P.O. Box 6397 Corpus Christi, TX 78466-6397 December 20, 2012 ITEM I QTY I UNIT I DESCRIPTION UNIT PRICE TOTAL WATER CONSTRUCTION 1 1765 LF 8" PVC C900 $35.60 $62,834.00 2 3 EA 6" X 30" PVC PIPE NIPPLE 165.00 495.00 3 1 EA 8" TAPPING SLEEVE AND 8" TAPPING VALVE 2,150.00 2,150.00 4 6 EA 8" D.I. BEND (90') 465.00 2,790.00 5 4 EA 8" D.I. BEND (454) 450.00 1,800.00 6 1 EA 8" D.I. TEE 500.00 500.00 7 3 EA 8" GATE VALVE AND BOX 1,100.00 3,300.00 8 38 LF 12" PVC CASING PIPE 45.00 1,710,00 9 1 EA FIRE HYDRANT ASSEMBLY INCLUDING T, BEND & VALVE 3,500.00 3,500.00 1 EA TIE TO EXISITNG LINE 1,326.75 1,326.75 11 1 LS PAVEMENT REPAIR 3,500.00 3.500.00 SUBTOTAL WATER CONSTRUCTION $83,905.75 WASTEWATER CONSTRUCTION 1 2 1375 LF 10" PVC SDR 26 $50.00 4' DIAMETER MANHOLE (WATER - TIGHT, 4 EA CLOSED BOTTOM) 6,350,00 $68,750.00 25,400.00 3 1 EA TIE TO EXISTING MANHOLE 2,576.75 2,576.75 4 1060 LF TRENCH SAFETY 1.00 1.060.00 SUBTOTAL WASTEWATER CONSTRUCTION $97,786.75 SUBTOTAL CONSTRUCTION $181,692.50 11% Engineering& Surveying 19,986.18 SUBTOTAL 201,678.68 1109c, Construction& Engineering $221,846.54 EXHIBIT 3 ri CITY OF CORPUS CHRISTI DISCLOSURE OF INTERESTS 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". FIRST NAME: 15T Investments, LLC STREET: 5901 State Hwy 44 CITY: Corpus Christi Zip: 78406 FIRM IS: E)1. Corporation E]2. Partnership [3, Sole Owner ]4. Association E]5. Other Limited Partnershl 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". F, 3. 4. Name None Job Title and City Department (if known) None 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 None None 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 None Board, Commission, or Committee None 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 35 or more of the ownership in the above named 'firm". Name Consultant None None CERTIFICATE I certify that all information provided is true and correct as of the date of this statement, that I have not knowingly withhelc disclosure of any information requested; and that supplemental statements will be promptly submitted to the City or Corpus Christi, Texas as changes occur. Certifying Person: Steven Tipps Title: Member (Type or Print) Signature of Certifying Person: Date: 12/13/2012 0 AGENDA MEMORANDUM Future Item for the City Council Meeting of January 29, 2013 852 Action Item for the City Council Meeting of February 12, 2013 DATE: January 14, 2012 TO: Ronald L. Olson, City Manager FROM: Wes Pierson, Assistant City Manager — Business Support Services WesP@cctexas.com (361) 826 -3356 Amended Consulting Services Agreement with the Corpus Christi Convention and Visitors Bureau. CAPTION: Motion authorizing the City Manager, or designee, to execute an Amended Consulting Services Agreement ( "Agreement ") with the Corpus Christi Convention and Visitors Bureau ( "CVB ") for a period ending July 31, 2015 PURPOSE: The purpose of this item is to amend the Consulting Services Agreement between the City of Corpus Christi and the Corpus Christi Convention & Visitors Bureau. BACKGROUND AND FINDINGS: On November 16, 2010, Council approved a motion authorizing the City Manager to enter into an amended consulting agreement with the CCCVB for a period extending from November 1, 2010 to July 31, 2015. Since then, several developments have warranted an amendment to the consulting agreement. First, on May 22, 2012, the City entered into a Chapter 380 Economic Development Incentive Agreement with Upper Padre Partners, LP and North Padre Waterpark Holdings, LTD for the Schlitterbahn Beach Country project. The consulting agreement will now exclude all hotel occupancy tax receipts generated by Schlitterbahn Beach Country from being included in formulating the compensation paid to CCCVB for their services. Second, the Special Marketing Fund provision has been removed as it was intended to be a temporary solution to a short -term City funding concern that is no longer an issue. Third, confusion over the number of individuals nominated to fill available positions has been resolved with the specification of two more individuals than the total number of positions available. ALTERNATIVES: None that would staff would recommend. OTHER CONSIDERATIONS: Not Applicable CONFORMITY TO CITY POLICY: Conforms to requirements for approval of contracts 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 Fund(s): Comments: Original contract approved in November 2010. This action reduces the City's obligation. RECOMMENDATION: Staff recommends approval of the motion. LIST OF SUPPORTING DOCUMENTS: Amended Contract AMENDED CONSULTING SERVICES AGREEMENT BETWEEN CITY OF CORPUS CHRISTI AND CORPUS CHRISTI CONVENTION & VISITORS BUREAU This Amended Consulting Services Agreement is executed by and between the City of Corpus Christi, Texas, a municipal corporation ( "City ") and the Corpus Christi Convention & Visitors Bureau ( "CCCVB "), a private, Texas nonprofit corporation organized for the purpose of promoting convention and visitor activity in the Corpus Christi Bay area. WHEREAS, the City desires to attract more visitors and conventioneers to Corpus Christi; WHEREAS, the City benefits directly by increased sales lax and hotel and motel occupancy tax income developed by visitors and conventioneers; WHEREAS, the City benefits indirectly through the economic activity of visitors and conventioneers who come to our City; and WHEREAS, CCCVB has professional personnel who are trained and experienced in the field of visitor and convention promotion, and the City desires to continue the professional promotion and advertising service through a contractual arrangement with CCCVB; NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, the parties agree as follows: 1. SCOPE OF SERVICES. 1.01. CCCVB shall perform the following services in a satisfactory and proper manner, as determined by the City Manager or the City Manager's designee. 1.02. The CCCVB shall solicit various organizations and associations to conduct meetings /conventions /tradeshows within Corpus Christi year- round. These target organizations will be identified by CCCVB. In addition, CCCVB will utilize various advertising /marketing techniques to promote City of Corpus Christi as a desirable year -round meeting /convention destination. 1.03. CCCVB shall promote the City of Corpus Christi as a year -round tourism destination. Those services must include, but are not limited to, information services, web site, attendance at travel /trade /shows, e-mail requests, phone inquiries, advertising, public relations special promotions, and packaging. 1.04. CCCVB shall design and implement an advertising campaign with state, national, and international coverage to feature the Corpus Christi area as an attractive region in which to vacation or have conventions or group meetings. Page 1 of 11 CCCVB Amded Agmt 8 -2 -12 1.05. CCCVB shall provide support services to conventions in Corpus Christi. 1.06. CCCVB shall operate visitor information centers, as CCCVB deems appropriate, which must make referrals to City attractions, including, but not limited to, the Texas State Aquarium, U.S.S. Lexington, Corpus Christi Museum of Science and History, American Bank Center and Whataburger Field, as well as other area attractions. 1.07. CCCVB shall provide Information and advice to businesses interested in tourism and convention - related business in the Corpus Christi area. 1.08. CCCVB shall advise the City on projected growth of tourism and convention - related business for the next five years to assist City planning efforts. 2. APPROPRIATIONS AND AUDIT 2.01. CCCVB shall make a quarterly presentation to the City Council regarding CCCVB's programs, projects, operations and expenditures. 2.02. 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 2.03. CCCVB must maintain revenue provided under this Agreement in a separate account established for that purpose and may not commingle City funds with any other funds. 2.04. Expenditures exceeding the total budgeted amount must be paid from clearly identified funds of CCCVB. 2.05. Interest earned on funds contributed to CCCVB by the City must be clearly identified, credited, and reflected on the books as resulting from the investment of the funds and the interest earned must be available for CCCVB use within the convention and visitor fund account. 2.06. The parties agree that receipt of these funds creates a fiduciary duty of the CCCVB. 2.07. CCCVB shall provide an Independent audit for expenditures of funds allocated under this agreement for each year based on a fiscal year ending July 31. 2.08. Accounting records and the necessary independent audits must conform to the accounting standards as promulgated by the American Institute of Certified Public Accountants and to the requirements of applicable state law, so as to include a statement of support, revenues, expenses, and balance sheets for all funds. 2.09. Early reports of an independent audit of the CCCVB's expenditures and revenues Page 2 of 11 CCCVB Amded Agmt 8 -2 -12 during the previous fiscal year performed by a Certified Public Accountant under Generally Accepted Accounting Principles (GMP) must be submitted to the City Manager within ninety (90) days after the end of each fiscal year that this Agreement is in effect. 2.10 City shall have the right during each calendar year or fiscal year to authorize an audit of CCCVB's records pertaining to its revenues and expenditures of funds allocated under this agreement. Such audits shall be undertaken by City's staff or a firm of Certified Public Accountants satisfactory to City. The cost of such audit shall be paid by City. 3. RECORDS. 3.01. The books of account of the convention and visitor fund held by CCCVB must be maintained in a form approved by the City's Director of Finance, and must be available for inspection and copying by the Director, and the Director's duly authorized agents and representatives during regular business hours of CCCVB. Records must be maintained for at least 3 years after the expiration or termination of this agreement. 4. REPORTS. 4.01. By July 31 of each year the CCCVB shall provide City Manager with a Business /Marketing plan that outlines the overall objectives of the CCCVB. The Plan must describe the plan of action for the upcoming year, including strategic markets; a line item budget; and significant initiatives. Opportunities to promote city funded venues must be specifically identified and included in the plan. Other information necessary to describe the CCCVB's efforts must be included, as well. 4.02. Performance Reports: The CCCVB shall periodically report to the City Council on the activities and work accomplished. The CCCVB shall make any special presentations or prepare specific reports, if requested by the members of the City Council, within 30 days of the request. 4.03. Annual Reports. The CCCVB shall report annually on the outcomes of the performance measures presented in the Business /Marketing plan for the previous year. The Annual Report is due within sixty (60) days after the end of each fiscal year while this Agreement is in effect. 5. PERFORMANCE MEASURES. 5.01. The performance of the CCCVB under this agreement is based on level of hotel occupancy tax earned. 5.02. CCCVB shall be deemed to have met its performance requirements for a particular fiscal year if the amount of 7% portion of the hotel occupancy tax earned and received by City for that CCCVB fiscal year meets or exceeds the minimum threshold of $6,200,000. 5.03. Subject to the approval of the City Manager, the CCCVB shall, before undertaking any special marketing campaign that is specifically funded by the Special Marketing Fund, project the percentage increase in anticipated increase In Hotel Occupancy Tax Page 3 of 11 CCCVB Amded Agmt 8 -2 -12 ( "HOT ") revenues are expected over the prior three year rolling average of HOT revenues. 5.04. CCCVB's fiscal year begins August 1 and ends July 31. 6. CONDUCT OF SERVICES 6.01. All of the Services provided by th e conformity with the purposes for which authorized in the laws of the State of Texas 7. BOND. CCCVB under this Agreement must be in the HOT revenues may be expended as 7.01. The officers and employees of CCCVB designated to withdraw funds from the convention and visitor fund must be covered by a blanket fidelity bond in a penal sum of $100,000. The bond must be provided by CCCVB, issued by a corporate surety designating CCCVB as named insured, the City as an additional named insured, and in the form as to be approved by the City Attorney. 8. COMPENSATION. 8.01. The City agrees that for the convention and visitor services performed by CCCVB under this Agreement, the City shall pay CCCVB annually the sum of 40% of the City's 7% hotel occupancy tax receipts received by the City for the CCCVB's current fiscal year, but specifically excepting all hotel occupancy tax receipts received by the City that are generated from any and all districts of the Schlitterbahn Beach Country project described in the Chapter 380 Economic Development Incentive Agreement Between the City of Corpus Christi, Texas and Upper Padre Partners, LP and North Padre Waterpark Holdings, LTD approved by the City Council by Resolution No. 029487 on May 22, 2012 ( "Schlitterbahn "), divided into monthly payments described in Section 8.02. The amount to be paid to CCCVB is referred to in this Agreement as the Base Amount. Provided, however, that should hotel /motel tax receipts received by the City for the twelve months ending March 31 in any year fall below $6,200,000, the Base Amount for the following fiscal year may be renegotiated. Each of the above amounts must be calculated based upon the amount of City hotel /motel tax receipts received by the City, excluding the two percent increase adopted in 1999 for convention center expansion and revenues authorized to clean and maintain public beaches by Chapters 156 and 351, Texas Tax Code. 8.02. During the term of this Agreement, the City shall pay to CCCVB a sum equal to one - twelfth of the total annual amount payable to CCCVB for the convention and visitor services provided under this Agreement on or about the first of each month; provided however, the City Manager is authorized to alter the payment schedule to increase payments early in the year if the payments are justified by documentation provided by CCCVB. 8.03. CCCVB may be entitled to additional incentive payment, to be calculated as follows: excluding all hotel occupancy tax receipts received by the City that are generated Page 4 of 11 CCCVB Amded Agmt 8 -2 -12 from any and all districts of Schlitterbahn, and excluding the 2% dedicated to repay the debt on the American Bank Center and amounts authorized by State law for use to clean and maintain public beaches, CCCVB shall receive 55% of the City's 7% hotel tax receipts, only for amounts of the City's 7% hotel tax receipts that exceed the 3 year rolling average by more than 5 %, adjusted for the rate of inflation or deflation as the reported in the Houston - Galveston - Brazoria, TX CPI . The 3 year rolling average is the average of the City's 7% hotel tax receipts for previous three fiscal years. For example, suppose the amount of hotel tax receipts for calendar years 2007 through 2009, after being adjusted for inflation or deflation, is as follows: Fiscal Year Amount of 7% hotel tax rece 2007 $6,000,000 2008 $6,180,000 2009 $6,365,400 2010 $6,750,000 The 3 year rolling average for fiscal year 2010 is $6,181,800, the average of the receipts for years 2007, 2008, and 2009. The amount that exceeds the three (3) year rolling average by more than 5% would be $6,490,890 ($6,181,800 X 105% equals $6,490,890). Therefore, in this example, the incentive base to CCCVB in fiscal year 2010 would be the difference between collections of $6,750,000 and $6,490,890, which equals $259,110. Therefore, 55% of $259,110, or $142,511, would be paid as an incentive to the CCCVB. Any year in which a limited number of events or groups cause a disproportionate increase in the HOT collections, the prior year's HOT collection plus 5% will be substituted for the actual collection for that year. (The example above does not reflect any adjustments for inflation or deflation.) 8.04. The City reserves the right to renegotiate in the second year of this agreement an increase in the threshold required to be surpassed for the CCCVB to be eligible for the increased incentive payment (i.e., current rate is 5 %). 8.05. The City reserves the right to renegotiate the CCCVB's accountability for return on investment on the expenditures of the Special Marketing Fund in the second year of the agreement. 8.06. To receive an incentive payment, CCCVB must be in compliance with all terms of this Agreement. 9. BOARD OF DIRECTORS 9.01. The affairs of the CCCVB shall be governed by a board of directors ( "Board "), which must be composed of eleven (11) members selected directly by the City Council of the City. The members must be representatives of the following groups: 2 members from the hotel industry; 2 members from the attraction industry; Page 5of11 CCCVB Amded Agmt 8 -2 -12 2 members from the restaurant industry; and 5 members from the community at large. 9.02 The Mayor and City Manager, or their designees, shall serve as ex- officio advisory non - voting members of the Board. In addition, the Council will appoint a representative from the Port of Corpus Christi Authority, a representative from the Corpus Christi International Airport, and a representative from the Regional Transportation Authority to serve as ex- officio advisory non - voting members 9.03. Appointments to the Board will be for staggered, two -year terms. Current members of the Board may serve until their current terms expire. No person may serve as a voting member of the Board for a period longer than six years consecutively, unless the service is required by virtue of the person's position or title or to complete an unexpired term. 9.04. The CCCVB may make recommendations to the City Council for directors as directors' terms expire, but the CCCVB always shall nominate two (2) more individuals than the total number of positions available. The City Council will provide serious consideration to the Board's recommendations, but is not restricted to select members submitted by the CCCVB or any other group. 9.05. Unexcused absences from more than twenty five (25) percent of regularly scheduled meetings during a term year must result in an automatic vacancy, which vacancy must be promptly reported to the City Council. An absence must be unexcused unless excused by the board for good cause no later than its next meeting after the absence. Any member, otherwise eligible, may not be precluded from reappointment by reason of the automatic vacancy. 9.06. CCCVB's Board of Directors may establish those standing committees it deems necessary. The Board is authorized to and must employ a President /Chief Executive Officer to exercise day to day management and administration of CCCVB. 9.07. The Board of Directors will operate under bylaws developed by the Board. Changes to the bylaws may be made only by a two - thirds vote of CCCVB's Board of Directors. No change in bylaws may be considered, which is inconsistent with any provision of this Agreement, The City Manager will be notified of any proposed changes to the bylaws at least two weeks prior to the adoption of the bylaws by the Board of Directors. 9.08. CCCVB agrees that meetings of its board of directors must be open to the public, and the meetings may be closed only when the board determines that an executive session is necessary for the purpose of discussing proprietary business. 9.09. The City and CCCVB agree that in no event may the City be liable for any contracts made by CCCVB with any person, firm, corporation, association, or governmental body. 9.10. The City and CCCVB agree that in no event may the City be liable for any damages, injuries, or losses charged to or adjudged against CCCVB arising from its operations, or Page 6 of 11 CCCVB Amded Agmt 8 -2 -12 the use or maintenance of its facilities. 10. TERM AND TERMINATION 10.01. The term of the Agreement commences as of November 1, 2010 and continues until July 31, 2015, subject to termination as provided in this Agreement. 10.02. Either party may terminate this Agreement at anytime for any reason by giving one year's prior written notice to the other party. In the event the City cancels this Agreement upon one year's notice, the City assumes any obligations of the convention and visitor's fund with a term of less than one year and any other obligation approved In advance by the City Manager. The City reserves the right to terminate the contract without notice for cause. 11. MISCELLANEOUS 11.01. This Agreement constitutes a novation and supersedes all other contracts and understandings previously made between the City and CCCVB. 11.02. CCCVB specifically reserves the right to change its name as a corporate entity and do business under one or more assumed names in compliance with the laws of the State of Texas. No change of name or use of additional names may be deemed a modification of this Agreement. 11.03. CCCVB shall comply with all applicable Federal, State, and local laws, rules and regulations in providing services under this agreement. 11.04. All notices, requests or other communications related to this Agreement must be made in writing and may be given by: (a) depositing same in the United States Mail, postage prepaid, certified, return receipt requested, addressed as set forth in this paragraph; or (b) delivering the same to the party to be notified. Notice given under (a) of the prior sentence are effective upon deposit In the United States mail. The notice addresses of the parties, until changed as provided in this Agreement, are as follows: City: City of Corpus Christi, Texas Attention: Ronald L. Olson, City Manager 1201 Leopard Street P. O. Box 9277 Corpus Christi, Texas 78469 CCCVB: Corpus Christi Area Convention & Visitors Bureau 1201 Shoreline Drive Corpus Christi, Texas 76401 Attn: Chief Executive Officer 11.05. If for any reason any section, paragraph, subdivision, clause, phrase, word, or Page 7 of 11 CCCVB Amded Agmt 8 -2 -12 provision of this Agreement is held Invalid or unconstitutional by final judgment of a court of competent jurisdiction, it may not affect any other section, paragraph, subdivision, clause, phrase, word, or provision of this Agreement, for It is the definite intent of the parties that every section, paragraph, subdivision, clause, phrase, word, or provision of this Agreement be given full force and effect for its purpose. 11.06. No amendments, modifications, or other changes to this Agreement are valid or effective absent the written agreement of the parties. This Agreement may be executed in one or more counterparts, each of which are deemed an original, and all of which constitute but one and the same instrument. 11.07. It is understood and agreed that CCCVB may copyright, to the use and benefit of the City of Corpus Christi, any material or document it deems appropriate and qualified for copyright and may administer the copyrights for the City during the term of this Agreement. 11.08. CCCVB agrees to comply with attached Exhibit A regarding insurance requirements. Executed on the dates indicated below binding the respective parties as of the date of last signature. CITY OF CORPUS CHRISTI, TEXAS By: Ronald L. Olson City Manager Date: ATTEST: Armando Chapa City Secretary CORPUS CHRISTI CONVENTION & VISIT RS BUREAU By :Q_ ith Arnold Chief Executive Officer Date: I t / �c71 EXHIBIT A Page 8 of 11 CCCVB Amded Agmt 8 -2 -12 INSURANCE REQUIREMENTS CCCVB'S LIABILITY INSURANCE A. CCCVB may not commence work under this agreement until all Insurance required in this Agreement has been obtained and the City has approved the insurance. CCCVB may not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. CCCVB must furnish to the City's Risk Manager, two (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 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, Bodily Injury and Property Damage Per non - renewal, termination, or material occurrence /aggregate change is required on all certificates COMMERCIAL GENERAL LIABILITY $1,000,000 COMBINED SINGLE LIMIT including: 1. Commercial Form 2. Premises — Operations 3. Products/ Completed Operations 4. Contractual Liability PROFESSIONAL LIABILITY: Coverage $1,000,000 COMBINED SINGLE LIMIT provided must cover officers, directors, employees and agents, including: 1. ERRORS and OMISSIONS In the event of accidents of any kind, CCCVB must furnish the City's Risk Manager with copies of all reports of accidents within 10 days of any accident. II. ADDITIONAL REQUIREMENTS A. CCCVB's financial integrity is of interest to the City; therefore, subject to CCCVB's right to maintain reasonable deductibles in such amounts as approved by the City, CCCVB shall obtain and maintain in full force and effect for the duration of this Contract, and any extension of the Agreement, at CCCVB'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. Page 9 of 11 CCCVB Amded Agmt 8 -2 -12 B. The City is entitled, upon request and without expense, to receive copies of the policies, declarations pages, and all endorsements to the policies, 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 to this Agreement or the underwriter of any such policies). CCCVB shall comply with any 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. CCCVB shall pay any costs incurred resulting from the changes. All notices under this Exhibit must 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 C. CCCVB agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: 1. Name the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, with respect to operations and activities of, or on behalf of, the named Insured performed under this Agreement with the City, with the exception of the workers' compensation and professional liability policies. 2. Provide for an endorsement that the "other insurance" clause shall not apply to the City of Corpus Christi, where the City is an additional insured shown on the policy. 3. 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. D. Within five (5) calendar days of a suspension, cancellation, or non - renewal of coverage, CCCVB shall provide a replacement Certificate of Insurance and applicable endorsements to City. The City shall have the option to suspend CCCVB's performance should there be a lapse in coverage at any time during this Agreement. Failure to provide and to maintain the required insurance constitutes a material breach of this contract. E. In addition to any other remedies the City may have upon CCCVB's failure to provide and maintain any insurance or policy endorsements to the extent and within the time required, the City has the right to order CCCVB to stop work under this Agreement, and may withhold any payment that becomes due to CCCVB under this Agreement until CCCVB demonstrates compliance with the requirements of this Exhibit. F. Nothing in this Exhibit may be construed as limiting In any way the extent to which Page 10 of 11 CCCVB Amded Agmt 8 -2 -12 CCCVB may be held responsible for payments of damages to persons or property resulting from CCCVB's or its subcontractors' performance of the work covered under this Agreement. G. It is agreed that CCCVB's Insurance is 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. H. It is understood and agreed that the insurance required by this Exhibit is in addition to and separate from any other obligation contained in this contract. Page 11 of 11 CCCVB Amded Agmt 8 -2 -12 0 AGENDA MEMORANDUM First Reading for the City Council Meeting of January 8, 2013 852 Second Reading for the City Council Meeting of January 29, 2013 DATE: December 19, 2012 TO: Ronald L. Olson, City Manager FROM: Michael Morris, Director MichaelMo@cctexas.com 361- 826 -3494 Renewal of Lease for the Antonio E. Garcia Arts Center CAPTION: Ordinance authorizing the City Manager, or his designee to execute a ten -year Lease Agreement with South Texas Institute for the Arts for the use of an approximately 1.37 acre tract including improvements located near intersection of Agnes Street at 18th Street, to be used to operate the Antonio E. Garcia Arts & Education Center; providing for severance; and providing for publication. PURPOSE: The Parks and Recreation Department seeks approval to enter into a ten (10) year lease agreement with South Texas Institute for the Arts (STIA) D /B /A Art Museum of South Texas for the Antonio E. Garcia Arts and Education Center, located at 2021 Agnes, near the intersection of Agnes Street and 18th Street. There is a $1.00 per year lease payment for the use of this facility. BACKGROUND AND FINDINGS: The Antonio E. Garcia Arts & Education Center is currently leased by the South Texas Institute for the Arts (STIA) to operate a community center in conjunction with Texas A &M Corpus Christi. Programming efforts include the promotion of education, inspiration and aesthetic enrichment of the local and regional culture. ALTERNATIVES: Do not approve the lease. OTHER CONSIDERATIONS: STIA will be responsible for maintenance of the facility up to $5,000 annually. City will assume responsibility for all other repairs and maintenance subject to the availability of City funds through the annual City budget process. CONFORMITY TO CITY POLICY: City Council must authorize the City Manager or his designee to execute the necessary documents to allow for a five -year lease agreement. EMERGENCY / NON - EMERGENCY: Non - Emergency 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 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 ten -year Lease Agreement with South Texas Institute for the Arts for the use of an approximately 1.37 acre tract including improvements located near intersection of Agnes Street at 18th Street, to be used to operate the Antonio E. Garcia Arts & Education Center; providing for severance; and providing for publication. Be it ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. The City Manager, or his designee, is authorized to execute a ten -year Lease Agreement with South Texas Institute for the Arts for the use of an approximately 1.37 acre tract including improvements located near intersection of Agnes Street at 18t Street, to be used to operate the Antonio E. Garcia Arts & Education Center. 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. 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. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of 7 , by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott That the foregoing ordinance was read for the second time and passed finally on this the day of 7 , by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb PASSED AND APPROVED, this the day of ATTEST: Armando Chapa City Secretary Chad Magill Colleen McIntyre Lillian Riojas Mark Scott Nelda Martinez Mayor LEASE WITH SOUTH TEXAS INSTITUTE FOR THE ARTS D /B /A ART MUSEUM OF SOUTH TEXAS FOR THE ANTONIO E. GARCIA ARTS & EDUCATION CENTER THE STATE OF TEXAS § COUNTY OF NUECES § WHEREAS, THE CITY OF CORPUS CHRISTI, TEXAS ("City") is the owner of real property located along Agnes Street as described and shown on the attached Exhibit A and All improvements located or which may be constructed on the above described lots "Improvements ", collectively "Facilities "; and WHEREAS, the South Texas Institute for the Arts d /b /a Art Museum of South Texas (the "Lessee ") desires to lease the Facilities to continue its programming efforts at the Antonio E. Garcia Arts & Education Center to benefit the citizens of the City of Corpus Christi; NOW, THEREFORE, In consideration of the foregoing and the mutual promises herein contained, the City and Lessee agree as follows: I. USE The City does hereby lease, let, and demise to Lessee the Facilities, and all Improvements located or to be located thereon f or the consideration, and such other consideration as provided by this Lease, of one dollar ($1.00) per year due and payable o n January 1, 2013 and payable on that same date each succeeding year of the Lease, the receipt of which is hereby acknowledged. II. TERM The term of this Lease shall be effective sixty -one (61) days after final Council approval and continue for ten (10) years, subject to the provisions concerning termination as stated herein. Thereafter, this Lease shall continue on a month -to -month extension on the same terms and conditions subject to thirty ( 30 ) days notice of termination by either party. When the term takes effect, the Facilities shall be deemed continuously leased as of September 5, 2012, under the terms and conditions of the previous lease agreement. - 1 - III. PURPOSE Lessee-shall operate the Facilities exclusively for the following purposes, and uses incidental thereto: To further the primary objective of the Act as outlined in 24 CFR 570.200 (a) (2) and to serve as a depository of cultural materials and a cultural art center to promote the education, inspiration and aesthetic enrichment of the local and regional culture of all people with emphasis on enriching the low and moderate income residents at all times in accordance with Housing and Urban Development's (HUD) Community Development Block Grant (CDBG) regulations and all local, state, and federal requirements and laws. IV. FURNISHING BUILDING (FACILITIES) It is understood that Lessee will be responsible for furnishing and equipping the Facilities and that City has no obligation to furnish nor insure any equipment or furnishings for the Lessee. All personal property furnished by Lessee or donated by others on behalf of Lessee will remain the property of Lessee unless specifically donated to City. Lessee shall be responsible to insure its equipment and furnishings at the Facilities. It is understood that Community Development Block Grant funding or other funds may occasionally become available to allow for additional improvements at the Facilities. City staff shall coordinate with Lessee prior to construction of any improvements to provide for minimal disruption to Lessee. kTl�.� P.A0 0V1 .11 alm During each year for the term of this Lease, Lessee will maintain, at its sole expense, the exterior and interior of the Facilities and any other improvements on the property, including without limitation all fixtures connected therewith, all personal property thereon, exterior walks and driveways, and all lawn, vegetation and landscaping, not to exceed Lessee's annual maintenance budget of Five Thousand Dollars ($5,000.00). Maintenance shall be of such quality as to maintain the Facilities in a first -class condition. However, Lessee is not responsible for any ground conditions related to use prior to the effective date of this agreement. City shall be responsible for all other maintenance and repairs to the Facilities, subject to availability of City funds through the annual City budget process. However, this provision regarding City maintenance of the Facilities is subject to revision by the City at any time. Lessee shall obtain, at its own expense, all utility services, garbage collection, janitorial services, and similar services. -- 2 -- VI. INFORMATION, RECORDS, REPORTS AND DOCUMENTATION. Upon request from City Director of Parks and Recreation, Lessee shall provide City Director or designee with access to documents or other records of Lessee to confirm that Facilities are being used for the purposes intended under Article III Purpose. VII. INDEMNIFICATION Lessee agrees that it will indemnify and hold City harmless of, from, and against all claims, demands, actions, damages, losses, costs, liabilities, expenses, and judgments, recovered from or asserted against City on account of injury or damage to persons or property to the extent any such damage or injury may be incident to, arise out of, or be caused, either proximately or remotely, wholly or in part, by an act or omission, negligence or misconduct on the part of City, its officers, employees, or agents, ( "Indemnitees ") and on the part of Lessee or any of its agents, servants, employees, contractors, patrons, guests, licensees, or invitees, entering upon the Facilities pursuant to this Lease Agreement with the express or implied invitation or permission of Lessee, or when any such injury or damage is the result of a proximate or remote violation by Indemnitees, Lessee, or any of its agents, servants, employees, contractors, patrons, guests, licensees, or invitees of any law, ordinance, or governmental order of any kind, or when any such injury or damage may in any other way arise from or out of the Improvements being constructed at the Facilities herein or out of the use or occupancy of the Improvements to the Facilities or the Facilities themselves by Indemni.tees, Lessee, its agents, servants, employees, contractors, patrons, guests, licensees, or invitees, including without limitation, any damages or costs which may occur as a result of: the design of the Improvements to the Facilities, the bidding process, actual construction . of the Improvements to the Facilities, administration of the construction contracts by the City or its designee, failure of the Improvements to the Facilities prior to completion and acceptance of the Improvements by City and Lessee jointly, failure of the Improvements of the Facilities to work as designed, failure of the Contractor or manufacturer to honor its warranties or failure to maintain the Improvements to the Facilities or the Facilities themselves. These terms of indemnification shall be effective whether such injury or damage may result from the sole negligence, contributory negligence, or concurrent negligence of Indemnitees; but not if such damage or injury may result from gross negligence or willful misconduct of Indemnitees. - 3 - Lessee covenants and agrees that, in case City shall be made a party to any litigation against Lessee or in any litigation commenced by any party, other than Lessee relating to this Lease Agreement, Lessee shall and will pay all costs and expenses, including reasonable attorney's fees and court costs incurred by or imposed upon City by virtue of such litigation. VIII. COMPLIANCE WITH LAWS Lessee agrees that, in operation of the Facilities and all programs offered by Lessee at the Facilities, it will promptly comply with and fulfill all laws, ordinances, regulations and codes of Federal, State, County, City and other governmental agencies applicable to the Facilities and all programs offered by Lessee at the Facilities, and all ordinances or regulations imposed by the City for the correction, prevention and abatement of nuisances or code violations in or connected with the Facilities during the term of this Lease, at Lessee's sole expense and cost. IX. TERMINATION Either party may terminate this Lease as of the last day of any month upon thirty (30) days prior written notice, so long as all provisions of this Lease providing responsibilities in the event of termination are complied with. X. PARKING. As additional consideration for the Lease, Lessee shall make the parking lots available on the Property available for general public use. XI. NON - DISCRIMINATION Lessee shall not discriminate nor permit discrimination against any person or group of person, as to employment and in the provision of services, activities, and programs, on the grounds of race, religion, national origin, sex, physical or mental disability, or age, or in any manner prohibited by law. X11. BREACH OF LEASE No assent, express or implied, by the City to any breach of any of Lessee's covenants, agreements, conditions or terms hereof shall be deemed or taken to be a waiver of any succeeding breach of any covenant, agreement, condition or term hereof. XIII. RIGHT TO ENTER AND INSPECT - 4 - The City reserves the right to enter the Facilities at any reasonable time during the term of this Lease for the purpose of inspecting the same in order to determine whether the terms and conditions of this Lease are being observed and carried out, including but not limited to, both exterior and interior maintenance. XIV. INSURANCE City shall maintain property insurance on the Facilities. The City's property insurance program provides coverage against perils including; fire, flood, collapse, windstorm and associated elements including wind driven rain and hail. In addition, the City's property insurance program provides coverage from named storms. Lessee shall acquire and maintain insurance as described on the attached Exhibit A. XV. DEFAULTS Upon thirty days prior written notice to Lessee, the City may, at its option, in addition to any other remedy or right hereunder or by law, terminate this Lease upon occurrence of any of the following conditions ( "Defaults "), provided that Lessee has not cured the Default prior to termination: 1) Failure to operate the Facilities for the purposes set forth in Paragraph III except during the periods necessary for repairs or renovation approved by the City in writing or except as otherwise contemplated by this Lease. 2) Failure to maintain Facilities and grounds. 3) Failure to abate any nuisance specified in writing by the City within a reasonable time specified in writing by the City. 4) Failure to comply with any term of this Lease. 5) Failure to have in effect policies of general liability insurance, workers' compensation insurance, and property insurance as required by the City Manager. 6) Dissolution of Lessee as a nonprofit corporation. 7) Abandonment of the Facilities for thirty (30) days. 8) Failure of Lessee to correct any other breach in the performance - 5 - or observance of any other covenant or condition of this Lease. Upon termination of this Lease as herein above provided, or pursuant to statute, or by summary proceedings or otherwise, the City may enter forthwith and resume possession either by summary proceedings, or by action at law or in equity or by force or otherwise, as the City may determine, without being liable in trespass or for any damages. The foregoing rights and remedies given to the City are, and shall be deemed to be, cumulative of any other rights of the City under-law, and the exercise of one shall not be deemed to be an election, and the failure of the City at any time to exercise any right or remedy shall not be deemed to operate as a waiver of its right to exercise such right or remedy at any other or future time. XVI. MODIFICATION Modifications to this Lease shall not be effective unless signed by a duly authorized representative of all parties hereto. Modifications which do not change the essential scope and purpose of the Lease may be approved on behalf of the City by the City Manager. XVII. PUBLICATION Lessee agrees to pay the costs of newspaper publication of this Lease and related ordinance as required by the City Charter. XVIII. TERMINATION NOTICE Lessee acknowledges and understands that if it is unable to carry out the terms of this Lease, this Lease is null and void. Lessee agrees to execute a Termination Agreement setting out the reasons for the termination, and in the case of partial termination, the portion of the Lease to be terminated. Either party may terminate this Lease as of the last day of any month upon thirty (30) days prior written notice containing the same information as required in the above described Termination Agreement to the other party. Notice shall be deemed to have been given upon deposit in U. S. Certified Mail properly stamped and addressed for delivery to: City of Corpus Christi P. 0. Box 977 Corpus Christi, Texas 78469 -9277 Attn: Director of Parks and Recreation South Texas Institute for the Arts 1902 N. Shoreline Blvd. Corpus Christi, Texas 78401 6 - Attn: Director XIX. TAXES Lessee shall pay any ad valorem taxes associated with the Facilities which may be levied during the term of this Lease or any extension hereof. Lessee shall not voluntarily create, cause, or allow to be created, any debts, liens, mortgages, charges, or other encumbrances against the Facilities. Lessee shall from time to time, duly pay and discharge or cause to be discharged or to be paid, when the same becomes due, all taxes, assessments, and other government charges which are lawfully imposed upon the Facilities and which, if unpaid, may by law, become a lien or encumbrance upon such Facilities and thereby impair or otherwise adversely affect the holding of such Facilities for the use set out in this Lease. XX. GENERAL PROVISIONS A. No Liability. In no event shall the City be liable for any contracts made by or entered into by Lessee with any other person, firm, corporation, association, or governmental body. B. Nonassignment. Lessee shall not assign, mortgage, pledge, or transfer this Agreement or any interest in the Facilities without prior written consent of the City. C. Nonexclusive Services. Nothing herein shall be construed as prohibiting Lessee from entering into contracts with additional parties for the performance of services similar or identical to those enumerated herein, and nothing herein shall be construed as prohibiting Lessee from receiving compensation therefore from such additional parties, provided that all other terms of this Lease are fulfilled. D. Hours of Operation. Facilities shall be operated so as to be open for use by the general public during all normal hours of operation. E. Jurisdiction and Validity. If for any reason any section, paragraph, subdivision, clause, phrase, or provision of this Lease shall be held invalid or unconstitutional by final judgment o f a court o f competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, work or provision thereof be given full, force and effect for its purpose. The laws of the State of Texas shall apply to any dispute arising hereunder. Venue shall lie in Corpus Christi, Nueces County, Texas, where this Lease was entered into and shall be performed. SIGNED, this day of , 2012. - 7 - ATTEST: Armando Chapa City Secretary SOUTH TEXAS INSTITUTE FOR THE ARTS i Jos ph A. Schenk, Director CITY OF CORPUS CHRISTI Ronald L. Olson City Manager 8 EXHIBIT ANTONIO E. GARCIA EDUCATION CENTER - LEASE TRACT .S.TA.T.E OF TEXAS COUNTY OF NUECES OXING a tract.of land :catitalnlp$1.37 Aureal (59,570 SQ.FT) of land -out of a Portion PfLot 14, Me* 4, L• awnview Atmewas 3reorded.in Volannhe 67t Page •86; Lots 2.4 aisd it pa rtion', oftot 5, Black 5, La:wnv qw- 'bl dd1t1ojk ids reeordad to Volume A., Page 113;, anatl a portion 0i 1110ok 9, Home PIaadt: Addiiff on ai reeprded In VoluimteAtTaxe 14 oftbe Map Records OfTCtuepsa Vt aty, Twv. Thin 1 ,37 Acre tract be109.mtira Particularly degorlOod. by notes and hounds as followws: BEODWO at a Found 518" Iran Rod with Plaado Cap atampW "City of Corpwa Christi, 'Coxes" at the northeast purser O t:13, 010k 4, lAwnvilow Annex.as tecordeo in volume 67, Page 96 of the Map Records ofteocs County, Texas; THENCE SMOTO "W stony% the north Wundary thke of said Lot 15, a dXataua$ of 137.1 -5' to a Foimd 518" non Rod rwlfh Pladlo Cap stamped'Utyof Corpuk Chlisti,, Texas" ,. being the.aouthwest comor of this tract, T11R1+1CR- N0rW00'1W along the easlerlyAight -of way lino of 9i iteenth.skeet g distance of 660 to A Fogad 518" Iron Rod with Plastic Cop stamped "City ofeo prus Chriaati, trexav, being au angle point of this tray; i F THENCE N090'0050"W continft along the sesterly tightyof wad► lute ofEiphtecnth Street it disuime -of 12$,1'9' to a Found Drill Hole 4n conorcte at the bagiatning of sa p rQUIV curve to - •theta; THENCE along said curve having a Ridius of 10.40', 4n Ato Un i of 16.95', and a 09rd ofN39°26'35" B at distance of 14.90'to a Fouad 6017 Nail on tho southoAy side of Apes Street; THENCE NOV00'00 "E• along the southearly side of Agnes Street a distande of 283.3 -1' to a Fquatd Ddlk Hoke, beiug an angle point oftbis tract; THENCE S67"50'49EB oontiai ulng alo%tho southetlyE aide ofAgiaoal Stroet.aa d14tabou of 7.88 to w Set.518", IMU Rod with V astiss Cop stapod "O-k of Corpus QdW. Texas ", being the northeast corner of two hoot; THENCE S02 °011'0[1"13 along tho eaas'to'rly side-of a T wide Alloy as shown on plat of the Rome Place Addition As Neordod it3 Volmno A, Page 14 of the Map RaQprds of Micces County, Texas, a distance of102,14'to•a Set 518" Roe 11od withVlastfp Cap stamped "City of Corpus Christi, Texas ", being the southomt turner of this tvact; •4 TURKS SSg°ODW' W diroiish. said Ubme Plao AMtiob and Lot 14, Lavmview Annex, a distanoo of 147.33to The POINT AND PLACE 0F'R9GMMG snd containing 1:37 .Aom of land. Dearings aro with re#brenra to North Bouudary Line of IMs 2.5,21oek 5, Lawoiew Addition as recxuded in.Volum A., page 13 of %a Map R000rds ofRucoes Cpunty,.Texas. StAte of •t'1iYpg •County of Nueces 1s R.assell Oft.a Reglotelred Profragional hattd. Surveyor for the City of0prpua Ckrlati, hereby art 01. r that tho foregolog fibld Motes Nero prepared fey me ftom -a land apmoyimdo on tho gmund- tmdbr ruq diwiion. Th tho Ina slay of January, 2069, Rua44111?. Ochs1= fi Sta'i- of ` vxos Uoenw Na, 5,241 ,aT O • 'I" "i131ti1; 4,UCME� i vo v A lug i II � bJ ca Ili :� t AF ■u■ ` ����'; �(,3� •l'1 1 li @� 3 s PIS it I K�. r•+ w 1 A N Y � n @� 3 s PIS it I K�. EXHIBIT B INSURANCE REQUIREMENTS I. LESSEE'S LIABILITY INSURANCE A. Lessee shall not commence business under this agreement until all insurance required herein has been obtained and approved by the City's Risk Manager or designee. B. Lessee shall furnish to the Risk Manager or designee two (2) copies of Certificates of Insurance, with applicable policy endorsements showing the following minimum coverage by an insurance company(s) acceptable to the Risk Manager or designee. The City must be named as an additional insured for the General Liability and Business Automobile Liability policies, 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 Bodily injury and Property Damage policy endorsement(s) Per Occurrence 1 aggregate $500,000 Per Occurrence Commercial General Liability including: $1,000,000 Aggregate 1. Broad Form 2. Premises — Operations 3. Products /Completed Operations Hazard 4. Contractual Liability S. Broad Form Property Damage 6. Independent Contractors BUSINESS AUTOMOBILE LIABILITY $500,000 Combined Single Limit 1. Owned 2. Hired & Non -owned WORKERS' COMPENSATION WHICH COMPLIES WITH THE TEXAS WORKERS' { If Lessee has paid employees.) COMPENSATION ACT AND PARAGRAPH 11 OF THIS EXHIBIT. $500,0001$500,0001$500,000 EMPLOYER'S LIABILITY Fine Arts Floater For Any Visiting Art Collection To cover replacement value of Exhibit Property Insurance Coverage To cover permanent collections. C. In the event of accidents of any kind related to this project, Lessee shall furnish the Risk Manager with copies of all reports of such accidents within ten (10) days of the accident. II. ADDITIONAL REQUIREMENTS A. If Lessee has paid employees, Lessee 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. Lessee's financial integrity is of interest to the City; therefore, subject to Lessee's right to maintain reasonable - 10 - deductibles in such amounts as are approved by the City, Lessee shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Lessee'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). Lessee 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. Lessee 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 4 D. Lessee 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, Lessee shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Lessee's performance should there be a lapse in coverage at any time during this contract. Failure to provide and to maintain the required insurance shall constitute a material breach of this contract. F. In addition to any other remedies the City may have upon Lessee's failure to provide an d maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Lessee to discontinue sales hereunder, until Lessee demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which Lessee may be held responsible for payments of damages to persons or property resulting from Lessee's or its subcontractor's performance of the work covered under this agreement. H. It is agreed that Lessee'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. 1. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this agreement. - 11 - SC �a ©°� AGENDA MEMORANDUM NCORPORA, o Future Item for the City Council Meeting of January 29, 2013 1852 Action Item for the City Council Meeting of February 12, 2013 DATE: January 29, 2013 TO: Ronald L. Olson, City Manager FROM: Michael Barrera, Assistant Director of Financial Services mikeb cctexas.com (361) 826 -3169 Mark Van Vleck, Interim Director, Development Services arkVV cctexas.com (361) 826 -3246 Electronic Archiving of Construction Blueprints CAPTION: Motion approving a contract for the electronic archiving of construction blueprints with MCCi, LLC of Tallahassee, Florida for a total expenditure of $76,779.70. The award is based on the cooperative purchasing agreement with the Texas Department of Information Resources (DIR). Funds are budgeted in the Development Services Fund for FY 2012 -2013. PURPOSE: To convert hard copy commercial blueprints to digital media. BACKGROUND AND FINDINGS: The objective of digitizing commercial blueprints is to comply with the Texas State Library and Archives Commission requirement to maintain such documents for the life of the buildings. Archiving digitally will ensure protection of records with regard to security, inclement weather, disaster recovery and help improve response time to customer or public information requests. ALTERNATIVES: Continue to utilize storage facilities for the storing of documents, keep hard copy construction plans, and search for records through manual labor. OTHER CONSIDERATIONS: None. CONFORMITY TO CITY POLICY: This purchase conforms to City purchasing regulating procurement. EMERGENCY /NON- EMERGENCY: Non - emergency DEPARTMENTALCLEARANCES: Development Services policies and procedures and state statutes 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 $125,779.70 0 $125,779.70 Encumbered / Expended Amount $49,000.00 0 $49,000.00 This item $76,779.70 0 $76,779.70 BALANCE $0 $0 Fund(s): Development Services Fund RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Price sheet CITY OF CORPUS CHRISTI PURCHASING DIVISION BUYER: GERALD GOODWIN ITEM DESCRIPTION 1 Pick -up, scanning, indexing, archiving, and shredding of documents TOTAL: DIR CONTRACT NO. DIR -SDD -980 PRICE SHEET ELECTRONIC ARCHIVING OF CONSTRUCTION BLUEPRINTS MCCi, LLC Tallahassee, Florida UNIT EXTENDED QTY. UNIT PRICE PRICE 82,350 Sheet F$0.93 $76,779.70 $76,779.70 1 ExperienceExcellence Municipal Code Corporation SALES DEPARTMENT PO Box 2235 s Tallahassee, Florida 32316 TELEPHONE (817) 788 -1102 • FAX (850) 701 -0715 Russell Haddock, Senior Account Executive • rhaddock @mccinnovations.com January 4, 2013 Ms. Elsa Martinez City of Corpus Christi PO Box 9277 Corpus Christi TX Dear Ms. Martinez: Thank you for speaking with me recently regarding Scanning and Indexing your records and our archiving services for your permanent records. Per our conversation we have included a Proposal for scanning your documents so you have a searchable archived copy of your records. Our Scanning and Indexing service provides many benefits including: ➢ Full Search Features- Your typed documents will be fully searchable through the Laserfiche software. This powerful searching includes general text searching as well as date searches. Both of these searches can be combined to find documents instantly from your desk versus spending countless hours manually searching through your hard copy records. ➢ Disaster Recovery- By scanning and indexing your documents, you will no longer have to depend on the hard copies for finding information. This can be extremely valuable in the event of a disaster and your records were unobtainable temporarily or permanently. If you have any questions concerning our proposal or desire additional information, please do not hesitate to contact me. We appreciate your interest and hope that we will have the pleasure of working with you and serving the City of Corpus Christi. Sincerely, Russell Haddock Senior Account Executive SCOPE OF SERVICES The Client will furnish MCCi for its use in preparing the document imaging project all hardcopy /electronic documents to be converted. PROJECT SCOPE -All estimates are based on information provided by the client • General Description Department: Building Department Document Types: Permit Files— Primarily Large Format, Some Regular Format Estimate of 82,350 Large Format Images, based upon assumption of 610 plan bags, with 135 images each. • Document Preparation: Current Storage Method: Plan Bags ® Image Processing DPI & Color: 300 DPI, Black & White Indexing Requirements: Up to 4 Fields (will use client provided excel database for naming and QC process) Optical Character Recognition Not Applicable for Maps /Plans /Blueprints ® Image Output Media: CD/DVD or External Hard Drive Output & Content: Laserfiche Briefcase or Volume • Material Handling Shipping Logistics: MCCi Pickup and Delivery. The City may also choose to have MCCi shred the plans (via 3�d party vendor) upon project completion. MCCi will require a signed waiver acknowledging that the City has received digital images for all the physical records sent to MCCi prior to document destruction. PROJECT PRICING Prices listed are per image /per job. If the project is broken up into multiple parts the volume pricing must be broken up as well. DIR discounted rates (actual rates applied to work) appear in bold. Conversion of Standard Documents up to 11 "x17': 0 0-50,000 images =$0.26 (DIR S% = $0.247) • 50,001- 100,000 images = $0.21 (DIR 5% = $0.199) • 100,001+ images = $0.16 (DIR 5% = $0.152) Large Format Documents up to 42" in width: • 0 — 15,000 images = $1.15 (DIR 5% = $1.09) • 15,000-40,000 images =$1.05 (DIR S% = $0.997) • 40,001 + = $0.95 (DIR 5% = $0.902) Color Documents = $1 per image in addition to regular per image rate Shipping Expenses /Document Destruction Expenses: • $5 per plan bag pickup and $5 per bag delivery o Not to exceed $1,500 per one way trip • Shredding Services billed at cost from 3rd party vendor: Not to exceed $1,000. Optional Services: Onsite assistance from MCCi Project Manager • Document Prep Assistance • Indexing Needs and Template Design • Pre - Scanning Workflow Design Consultations (can be done offsite at client request) • $2,100 per day Remote import assistance from MCCi Project Manager • Incorporate scanned work into clients existing file structure • Review completed work • Answer any client questions • $110 per hour 8 hours included at no charge when job billing total exceeds $50,000 Special notes: The pricing terms listed are in effect for 3 years from signed contract date. At the completion of the 3 year term the agreement can be modified and /or extended as needed. The volume based per image prices are on a per job basis, if the job is broken up into multiple parts the volume pricing must be broken up as well. Travel expenses for on -site document prep and consultation will be invoiced at MCG cost. PAYMENT & BILLING TERMS MCCi will invoice project on a monthly schedule, based on deliverables (via Electronic media or the internet). Payment is due within 30 days of receipt of a valid invoice. MCCi, a Limited Liability Company and subsidiary of MUNICIPAL CODE CORPORATION, which is duly organized and existing under the laws of the State of Florida, hereinafter referred to as MCCi, hereby offers the Laserflche Software & Services to the City of CORPUS CHRISTI TX, a Texas home -rule city organized and existing under state law, hereinafter referred to as the Client, according to the following terms and conditions. MCCI DOCUMENT SERVICES — INDEXING SERVICES Once MCCi has received your documents, the following process will occur according to the terms laid out in MCCi's pricing proposal and may vary according to services selected. CONSULTATION. A Consultation will be scheduled via a telephone conference after receipt of signed contract. This consultation is designed to go over the following: the signed contract and terms, folder structure, current searching methods, document naming scheme, document preparation requirements, and document shipment and /or pick up. DOCUMENT PREPARATION. If you decide to send paper documents to MCCi, the process of document preparation begins with removing any materials that may prohibit the document from being fed through the scanner (i.e. Removal of documents from file folders, Removal of staples, paperclips, tape, clips, etc) and is described as Document Preparation. Upon completion of scanning, MCCi will organize the documents into their original order as received from the Client. DOCUMENT ORGANIZATION & INDEXING. Based on the scope of the project and outcome of your Consultation, MCCi will organize and index your documents. This will enable them to be searched and organized by three different methods. The first method includes organizing your documents in a tree -like folder structure, similar to Windows Explorer. This provides a visual method to store and locate your documents. The second method involves the use of electronic template cards. These templates contain unique information pertaining to that particular document. Once a template layout has been agreed upon, no changes can be made once the job has already been started. The third method includes running a process called optical character recognition (OCR), allowing for full -text indexing and searching capabilities. The OCR process converts printed words into alphanumeric characters dependent upon font and paper quality. This enables each occurrence of an OCR'd word to be searched and retrieved. Microfilm, Maps, Poor Quality, and Handwritten documents will be searchable by keyword index only (via template card). DOCUMENT QUALITY CONTROL. MCCi performs a thorough quality control process after the job has been completed. Each scanned image is inspected for quality, legibility, and accuracy. Steps are taken to ensure each document has been captured, the quality of the scanned image is comparable to the original, and all manual indexing errors have been corrected. MCCi cannot be accountable for records not reflected in original inventory report as provided by Client. MCCi will correct only those discrepancies reported within 90 days after delivery of hard copy materials. DOCUMENT STORAGE. MCCi's facilities contain secure rooms for hardcopy "work in progress" document storage that are designed to prevent damage from natural disasters. MCCi will arrange for the return of hardcopy documents to the client after completion of scanning. If documents reside at MCCi facilities for a period longer than 90 days after a request for delivery has been made, storage charges will apply. MCC! is not responsible for maintaining permanent archive and accepts no responsibility to loss of electronic data. FUTURE UPDATES. The Client can provide MCCi additional documents after completion of initial project. The updates can be on a schedule, or as desired by the Client. The Client shall forward to MCCi copies of the final documents via e-mail, certified mail carrier, or through the MCCi pick up and delivery service (offered in select states only). At each update, the Client may elect to purchase an updated version of their records on electronic media. All copies will be disposed of within 60 days upon completion of work. Original documents will be returned to the Client. ENTERPRISE WIDE SCANNING SERVICES. In accordance with the terms and conditions as laid out here within, MCCi can provide any department in the organization with scanning services for documents other than those described in Section I of the pricing proposal. All costs are volume based and can be provided upon request. MCCi will consult with each department interested in beginning their own MuniScan project to determine individual scanning and indexing needs. For further information and instruction regarding this service please contact our Service Bureau Manager. MICROFILM & FICHE CONVERSION SERVICES. MCC! offers electronic conversion services for microfilm, microfiche, and aperture cards. The Client will provide MCCi with data to be converted to electronic format. MCCi will extract the images contained on the film /fiche and migrate them to Laserfiche or to another industry standard format as requested by the Client. The images will be captured based upon the reduction ratio and threshold between the beginning and ending of new images on the original film. MCCi is not responsible for the accuracy of existing image quality, such as black borders, skewed images, blurry images, non - legible images, or other errors that are not controllable by MCCL Unless otherwise specified in the project scope, MCCi will index by the roll /card number or unique identifier. The terms of this agreement shall remain in force and effect for a period of ninety (90) days from the date appearing below, unless accepted by the Client. Submitted by: MCCII, a Limited Liability Company Date: January 4, 2013 By: -411 a (Signature) �t�v�l��,r5� -mow - ��� ►`� —� (Printed Name & Title) Witness: (Signature) Noted Items Accepted by: CITY OF CORPUS CHRISTI, TX Date: By: (Signature) (Printed Name & Title) Witness: (Signature) (Printed Name & Title G� ® AGENDA MEMORANDUM Future Item for the City Council Meeting of January 29, 2013 Action Item for the City Council Meeting of February 12, 2013 DATE: 1/29/2013 TO: Ronald L. Olson, City Manager FROM: Michael Barrera, Assistant Director of Financial Services mike cctexas.com 361- 826 -3169 Michael Morris, Director of Park and Recreation micaelmo cctexas.com 361- 826 -3464 Food Items CAPTION: Motion approving supply agreements with the following companies for the following amounts in accordance with the Coastal Bend Council of Governments Bid Invitation No. CBCOG -13 -1 for food items which include canned and frozen fruit and vegetables; meats and condiments, for an estimated six month expenditure of $179,155.26. The terms of the contracts shall be for six months with options to extend for up to three additional months, subject to the approval of the Coastal Bend Council of Governments, the suppliers, and the City Manager or designee. Funds are available through the Meals on Wheels Grant. LaBatt Food Service Corpus Christi, Texas 144 Line Items $83,729.73 Performance Food Group Victoria. Texas 108 Line Items $95,425.53 Grand Total: $179,155.26 PURPOSE: These food items will be used by Senior Community Services for the Elderly Nutrition Program. The food is prepared at the Senior Community Service Kitchen and served at the Senior Citizen Centers and also delivered to households throughout the City. Approximately 123,176 meals will be prepared and served over the six month contract period. BACKGROUND AND FINDINGS: Each year the City receives funds from State and Federal grants. Several grants are structured to support the elderly in the community. This award is a cooperative effort between the City of Corpus Christi and the following members of the Coastal Bend Council of Governments; Community Action Corporation of South Texas, Nueces County Senior Community Services, Refugio County Elderly Services, City of Corpus Christi, Bee Community Action Agency, Aransas Council of Aging, Kleberg County Human Services, Duval County Elderly Program, and Live Oak County Elderly Program. ALTERNATIVES: The bids submitted by LaBatt Food Service and Performance Food Group meet all of the City's bid requirements. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: This supply agreement conforms to the City's purchasing policies and procedures and Texas State procurement laws. EMERGENCY/ NON- EMERGENCY: Non - Emergency. DEPARTMENTALCLEARANCES: Park and Recreation 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 $218,843.38 $218,843.38 Encumbered / Expended Amount $21,337.37 $21,337.37 This item $179,155.26 $179,155.26 BALANCE $18,350.75 $18,350.75 Fund(s): Park and Recreation Grants. Comments: Not Applicable. RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Award Summary attached. COUNCIL OF GOVERNMENTS - STAPLES, MEAT & OTHER FROZEN FOODS SENIOR COMMUNITY SERVICES COUNCIL DATE: JANUARY 29, 2013 Award Summary: CBCOG -13 -1 LABATT FOOD SERVICE Corpus Christi, Texas One hundered and forty -four (144) line items consisting of canned fruit, $83,729.73 canned vegetables, canned meat, condiments, dressing, juices oil & shortening, relishes, soup & bases, spices, starches and pasta, sugar & products, miscellaneous, beef, pork, poultry, frozen vegetables, dairy Performance Food Group Victoria, Texas One hundred and eight (108) line items consisting of canned fruit, dried fruit, $95,425.53 canned vegetables, dried vegetables, canned meat, condiments dressing, juices, oil & shortening, relishes, soup & bases, spices, starches and pasta, sugar & products, miscellaneous, beef, pork, poultry, prepared products, frozen vegetables, dairy Grand Total: $179,155.26 SC u° AGENDA MEMORANDUM kpRPga EO Future Item for the City Council Meeting of January 29, 2013 1852 Action Item for the City Council Meeting of February 12, 2013 DATE: January 29, 2013 TO: Ronald L. Olson, City Manager FROM: Michael Barrera, Assistant Director of Financial Services mike cctexas.com 361- 826 -3169 Constance P. Sanchez, Director of Financial Services constancep scctexas.com 361- 826 -3227 Municipal Lease Line of Credit CAPTION: Motion approving a Municipal Lease Line of Credit with Frost Bank in accordance with Request for Proposal No. BI- 0040 -13 based lowest responsible proposal for an estimated annual expenditure of $326,909.92. The term of the contract is for one year with options to extend for up to four additional one -year periods, subject to the approval of the contractor and the City Manager, or designee. PURPOSE: The City uses municipal lease purchase financing to fund equipment and rolling stock replacement needs. BACKGROUND AND FINDINGS: As equipment is requisitioned to be purchased, the equipment is purchased under all applicable statutes and city procurement policies. The financing for the purchase is provided through this lease line of credit agreement. An estimated $6.7 million worth of equipment is projected to be purchased over the initial twelve month period of this agreement. ALTERNATIVES: Not applicable. OTHER CONSIDERATIONS: The actual interest rate will fluctuate throughout the term of the contract based on the index rate at the time of the purchase. Based on the index rate at the time of the bid, on October 1, 2012, the interest rate charged to the City for a 60 month lease is 1.89 %. The current year financial impact shown on the following table represents interest costs, at 1.89 %, associated with financing 13 separate awards of equipment that has either been delivered or is on order and expected to be delivered throughout the remainder of this fiscal year. 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: Finance Department FINANCIAL IMPACT: X Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget 4,840,698.61 291,008.47 5,131,707.08 Encumbered / Expended Amount 3,655,396.42 3,655,396.42 This item 35,901.45 291,008.47 3267909.92 BALANCE 171497400.74 01 171497400.74 Fund(s): General, Street, Wastewater Comments: The $35,901.45 financial impact shown above represents estimated interest costs that will be encumbered through the end of this fiscal year. The remaining $266,103.09 of the interest costs will be requested for future fiscal years during the normal budget process. RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Price Sheet Master Lease Purchase Agreement Request for Proposal No.: BI- 0040 -13 Municipal Lease Line of Credit Senior Buyer: Elisa Covington Date: 01/29/13 Item CITY OF CORPUS CHRISTI PURCHASING DIVISION PRICE SHEET 1 Proposers were instructed to enter the amount of interest over the index of Proposer's choice, as of October 1, 2012, for each of the financing terms specified. 2 Proposals received from Banc of America Public Capital Corporation and JPMorgan Chase Bank did not meet the minimum requirements set forth in the Request for Proposal and have been deemed as nonresponsive. Deficiencies noted include 1) offer contingent up the City's credit approval, 2) $200,000 minimum loan (Chase) and 3) non - acceptance of equipment requiring to be financed (BofA). Frost Bank 2 Banc of America Public Capital Corp 2 JP Morgan Chase Bank, Description San Antonio, TX Tucker, GA Columbus, OH INDEX' INDEX' INDEX' Secure Connect Bullet Rate H15 H15 from Interest Interest www.FHLB Rate - Rate - (Federal Total Interest Average Average Total Interest Home Loan Cost for Life Loan Total Interest Cost Life Loan Cost for Bank).com Financing 6.7 Interest Rate, for Financing 6.7 Interest Rate, Financing 6.7 on 10/1/12 - Loan Rate, million over 60 Rate Index million over 60 Rate Index million over 60 79% of rate Index plus months at Swap plus months at 1.322% Swap plus months at applied % adder adder 11.89% interest 10/1/12 1 % adder adder interest 10/1/12 % adder adder 1 1.235% interest Lease Purchase financing for a 60 month term 0.59% 1.300% 1.890% $326,909.92 0.44% 0.882% 1.322% $227,617.63 0.44% 0.795% 1.235% $212,488.48 1 Proposers were instructed to enter the amount of interest over the index of Proposer's choice, as of October 1, 2012, for each of the financing terms specified. 2 Proposals received from Banc of America Public Capital Corporation and JPMorgan Chase Bank did not meet the minimum requirements set forth in the Request for Proposal and have been deemed as nonresponsive. Deficiencies noted include 1) offer contingent up the City's credit approval, 2) $200,000 minimum loan (Chase) and 3) non - acceptance of equipment requiring to be financed (BofA). MASTER LEASE PURCHASE AGREEMENT BETWEEN The City of Corpus Christi, as "City" and Frost Bank, as Lessor THIS MASTER LEASE PURCHASE AGREEMENT (the Agreement), is by and between Frost Bank, a state banking association, as lessor (Lessor) whose address is 100 West Houston Street, San Antonio, Texas 78205, and the City of Corpus Christi, a political subdivision of the State of Texas as lessee (City), whose address is 1201 Leopard, Corpus Christi, Nueces County, Texas 78401. WITNESSETH: WHEREAS, the City is authorized by law to acquire such items of personal property as are needed to carry out its governmental functions, and to acquire such personal property by entering into a lease with the option to purchase; and WHEREAS, the City has determined that it is necessary for it to acquire under this Agreement certain items of personal property described herein as the Property; and WHEREAS, Lessor is willing to lease certain Property to the City pursuant to this Agreement; NOW, THEREFORE, in consideration of the mutual covenants contained herein City and Lessor hereto recite and agree as follows: ARTICLE 1. DEFINITIONS AND EXHIBITS Section 1.1 Definitions. The terms defined in this Section, for all purposes of this Agreement, have the following meanings: Additional Terms: Consecutive terms, each of a one -year fiscal period, for which a Lease with respect to a Property Group remains in effect unless terminated by City. Each Additional Term commences at the end of the Original Term or the preceding Additional Term and continues for a period within which all of the Lease Payments specified in Exhibit "B" will be paid as provided in Section 4.1. Agreement: The Master Lease Agreement and all Exhibits hereto. Business Day: Each day on which the City is open for business. Contractor: Each manufacturer or vendor from whom the City has ordered or contracted for the manufacture, delivery, and /or installation of the Property. 1 Contract Administrator: The City's designated representative for administering this Agreement is the Director of Financial Services or designee. Fiscal year: The twelve (12) month fiscal period of the City which commences annually on August 1 and ends on the following July 31. Independent Counsel: An attorney with either Lessor or Citye the highest court of Texas and who has no past or p resent relationship Interest: The portion of any Lease Payment designated as and comprising interest as shown in any Exhibit "B" hereto. Lease: With respect to each Property Group, this Agreement and the Schedule relating thereto, which shall constitute a separate contract relating to such Property Group. Lease Payment: The payment of Principal and Interest due from the City to Lessor on each Payment Date as shown on each Exhibit "B ". Lease Term: With respect to any Property Group, the Original Term and all Additional Terms during which the related Lease is in effect as specified in Section 4.1. Net Proceeds: Any insurance proceeds or condemnation award, paid with respect to any Property, remaining after payment therefrom of all expenses incurred in the collection thereof. Non - appropriation: The failure of the City Council of the City to appropriate money for any Fiscal Year sufficient for the continued performance of a Lease by the City with respect to the related Property Group, which may be evidenced by a budget ordinance or resolution which prohibits the City from using any monies to pay the Lease Payments due under such Lease with respect to such Property Group for a designated Fiscal Year. Original Term: The period from the date of execution of an Exhibit A with respect to a Property Group until the end of the Fiscal Year which includes the date of execution. Payment Date: The date upon which any Lease Payment is due and payable as provided in any Exhibit "B ". Permitted Encumbrances: As of any particular time: (i) liens for taxes and assessments not then delinquent, or which the City may, pursuant to the provisions of Section 7.3 hereof, permit to remain unpaid, (ii) this Agreement and amendments hereto, (iii) Lessor's interest in the Property, and (iv) any mechanic's, laborer's, material men's, supplier's or vendor's lien or right not filed or perfected in the manner prescribed by law, other than any o remain unpaid. through a Contractor or which the City may, pursuant to Article 8, hereof, permit hereto. Principal: The portion of any Lease Payment designated as principal in any Exhibit "B" 2 Pro e : Individually or collectively as the context requires, the personal property designated by the City, which is described in one or more Exhibit "A "s as now or hereafter constituted. The City may lease - purchase all Property it determines necessary to provide essential services, which includes computer hardware and software. P_ropegy Group: The Property listed on any Exhibit "A," comprising a single purchase or a group of items, equipment, or associated products. Purchase Option Price: With respect to a Property Group listed on any single Exhibit "A," the amount equal to the unpaid Principal Balance of the Property Group, plus unpaid interest accrued to the prepayment date. Schedule: A schedule consisting of separate but like - numbered pages of Exhibits A and B which have been completed with respect to a Property Group and executed by Lessor and City. Specifications: The procurement specifications and /or purchase order pursuant to which the City has ordered any Property from a Contractor. Section 1.2. Exhibits. The following Exhibits are attached to and by reference made a part of this Agreement: Exhibit "A ": Property Group Description. Each Lease will have consecutively numbered Exhibit "A "s. Each Exhibit "A" will describe the Property Group for its Lease, including serial numbers when available, on consecutively numbered pages. A sample Exhibit "A" is attached and incorporated. Exhibit "B ": Lease Payment Schedule. Each Lease will have consecutively numbered Exhibit "B "s. Each Exhibit "B" will contain the date and amount of each Lease Payment due for the corresponding Exhibit "A" Property Group, the amount of each Lease Payment allocating Principal and Interest, the price at which City may exercise its Article X option to purchase Lessor's interest in each Property Group, and the due date of each Lease Payment. Exhibit "C ": Certificate of Acceptance. A Certificate of Acceptance signed by the Contract Administrator indicating that the Property Group described therein has been delivered and installed in accordance with the Specifications, and has been accepted by the City, the date on which Lease Payments shown in the page of Exhibit "B" relating thereto commences, and that certain other requirements have been met by the City. A sample Exhibit "C" is attached and incorporated. Exhibit "D ": Opinion of Counsel. A form of opinion of counsel to the City as to the organization, nature, and powers of the City; the validity, execution, and delivery of this Agreement and various related documents; the absence of litigation; and related matters. A sample Exhibit "D" is attached and incorporated. Exhibit "E ": Requisition Report. City shall furnish Lessor an Exhibit "E" prior to issuing a procurement for any Property Group unless the item is on Exhibit "F ", Approved Property List. The parties agree that no Exhibit "E" shall be required for property listed on Exhibit "F ". Each Exhibit "E" will include the proposed Property Group, an estimated price 3 for each piece of Property, the budgeted amount for each piece of Property, the desired number of Lease Payments, and any other information that City's Contract Administrator and an authorized agent of Lessor mutually agrees to add to Exhibit "E ". A sample Exhibit "E" is attached and incorporated. Exhibit "F ": Approved Property List. City will furnish Lessor an Exhibit "F" listing all Property budgeted for purchase during FY12 -13. Lessor approves the lease purchase of all Property listed on Exhibit "F" by bidding on and signing this contract. City will furnish Lessor's Agent a new Exhibit "F" by August 15th annually, which lists all Property budgeted for purchase during subsequent fiscal years. The initial Exhibit "F" is attached and incorporated. ARTICLE 2. REPRESENTATION, COVENANTS, AND WARRANTIES Section 2.1. Representations, Covenants, and Warranties of the City. The City represents, covenants, and warrants as follows: (a) The City is a municipal corporation and political subdivision of Texas, duly organized and existing under the Constitution and laws of the State. The City will do or cause to be done all things necessary to preserve and keep in full force and effect throughout the Lease Term its existence as a body politic and corporate. (b) The City is authorized under the Constitution and laws of Texas to enter into this Agreement and the transactions contemplated hereby, and to perform all of its obligations hereunder. (c) The City Manager has been duly authorized to execute and deliver this Agreement by the official action of the City's governing body, the City Council. (d) In authorizing and executing this Agreement, the City has complied and/or will comply with all public bidding and other laws applicable to this Agreement and the acquisition of the Property by the City. (e) The City is not subject to any legal or contractual provision that restricts or prevents it from entering into and performing its obligations under this Agreement. ( The City has no knowledge of any pending or threatened action, proceeding or investigation affecting the City, nor, to the best knowledge of the City, is there any basis therefor, wherein an unfavorable result would adversely affect the transactions contemplated by this Agreement. (g) The Property is and will remain throughout the Lease Term personal property and not fixtures. (h) The execution and performance of this Agreement will not violate any judgment, order, law or regulation, constitute a default under any instrument binding upon the City, or create any encumbrance upon any assets of the City or the Property, except for the Permitted Encumbrances. O (i) To the knowledge of the current interim City Finance director and interim Assistant City Manager over Finance department, the City has never non - appropriated or defaulted under any of its obligations under any lease - purchase contract, bond or other debt obligation. 0) No approval, consent or withholding of objection is required from any governmental authority other than the City with respect to the entering into or performance by the City of this Agreement. (k) The balance sheet of the City for its most recent Fiscal Year and the related earnings statement of the City for such Fiscal Year will be furnished to Lessor within 30 days of the effective date of this Agreement, and fairly represent the City's financial condition as of such date and the results of its operations for such Fiscal Year in accordance with generally accepted accounting principles consistently applied, and, since such date, there has been no material adverse change in such condition or operations. (1) City has investigated the facts, estimates and circumstances in existence on the date hereof, together with City's expectations as to future events. These are true and are complete in all material respects, and on the basis of such, it is not expected that the use of the proceeds hereof or any other moneys or property will be used in a manner which will cause this Agreement to be treated as an arbitrage bond within the meaning of section 148 of the Code. Such expectations are reasonable, and there are no other facts, estimates or circumstances that would materially change such expectations. (m) None of the proceeds hereof will be used, directly or indirectly, in any trade or business carried on by any person other than a governmental unit, which is defined to include any state of the United States and any political subdivision; agency, instrumentality or entity acting by or on behalf of a state, but not including the United States or any agency or instrumentality thereof, no more than 10% of the Property will be used directly or indirectly in a trade or business carried on by any such person, and no more than 5% of the Property will be used directly or indirectly in trade or business carried on by any such person that is not related to any government use of such Property. (n) Should the Interest component of payments hereunder be deemed by the federal government or determined by the Internal Revenue Service or a court of competent jurisdiction or an opinion of nationally recognized bond counsel not to be exempt from gross income, subject to the provisions of Section 13.13 hereof, City will pay as additional sums hereunder sufficient funds to adjust the interest to be paid hereunder to an amount equivalent to the after -tax interest rate contemplated hereunder as a tax exempt transaction. Said adjustment will be retroactive and apply to any installments already paid by City to Lessor to the extent that any ruling by any such taxing authority requires the payment of additional tax on payments already received by Lessor. This obligation will survive the expiration of this Agreement. (o) The City will not pledge, mortgage, or assign this Agreement, or its duties and obligations hereunder to any other person, firm, or corporation except as provided under the terms of this Agreement. 5 (p) The City will use the Property during the Lease Term only to perform essential governmental functions devoted exclusively to public uses. (q) The City will take all affirmative actions legally within its power necessary to ensure that the Interest portion of the Lease Payments does not become included in the gross income of the recipient for federal income tax purposes under the Internal Revenue Code of 1986 (the Code) and Treasury Regulations promulgated thereunder (the Regulations). (r) Within five (5) Business Days of final acceptance of each Property Group by the Contract Administrator, after delivery and installation of that Property Group, the City will provide to Lessor a completed and executed copy of the Exhibit "C ", Certificate of Acceptance, corresponding to that Property group, together with completed and executed copies of the related Exhibits "A" and "B ". (s) Upon the execution of this Agreement, the City will provide the Lessor an opinion of its legal counsel in substantially the form of Exhibit "D." (t) Upon the request and direction of Lessor, the City will submit to the Secretary of the Treasury an information reporting statement at the time and in the form required by the Code and Regulations. (u) The City shall take appropriate official action by its governing body to approve the acquisition and financing of any Property Group under the terms and conditions of this Agreement. Section 2.2. Representation, Covenants, and Warranties of Lessor. Lessor represents, covenants, and warrants as follows: (a) Lessor is a state banking association duly organized, existing and in good standing under and by virtue of the laws of the State of Texas and has power to enter into this Agreement, is possessed of full power to own and hold personal property, and to lease the same; engages in the leasing of personal property such as the Property in the ordinary course of business; and has duly authorized the execution and delivery of this Agreement and all addenda thereto. (b) Neither the execution and delivery of this Agreement, nor the fulfillment of or compliance with the terms and conditions thereof, nor the consummation of the transactions contemplated thereby, conflicts with or results in a breach of the terms, conditions, or provisions of any restriction, agreement, or instrument to which Lessor is now a parry or by which Lessor is bound, constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of Lessor, or upon the Property except Permitted Encumbrances. (c) Lessor must not issue Certificates of Participation and Lessor agrees that City shall not be required to provide any disclosure information under Securities & Exchange Commission Rule 15(c) 2 -12. to ARTICLE 3. LEASE OF PROPERTY Section 3.1. Acquisition of Property. During the Lease Term, when City desires to lease a Property Group from Lessor, Contract Administrator shall complete an Exhibit "E ", Requisition Report, which includes the Property Group, an estimated price for each piece of Property, the budgeted amount for the Property Group, and the desired number of Lease Payments for the Property Group. For any Property not on the annually approved Exhibit "F", Lessor must advise the Contract Administrator in writing whether Lessor will lease the Property Group to City within three (3) business days after receipt of a completed Exhibit "E ". City will initiate the procurement process to purchase the Property Group. Upon receipt of bids and award by City Council of a contract to purchase City shall notify Lessor in writing of the Property Group cost and estimated delivery period, and Lessor shall execute an Exhibit "A", numbered with the assigned Lease Number, and forward it to the Contract Administrator. If City so desires, or if Lessor chooses not to lease a Property Group to City or chooses not to lease for the number of Lease Payments City requested, City may lease the Property Group from any one else it chooses. Section 3.2. Property Delivery; Documentation. Upon Lessor's written approval of an Exhibit "E" Lessor shall provide City with an assigned Lease Number and Contract Administrator will prepare working file copies of Exhibits "A" and "B ", and forward a copy of each to Lessor's designated representative. After delivery of a Property Group to City, City staff shall inspect the Property Group for compliance with Specifications. Within three (3) business days after the Contract Administrator receives staff s written acceptance of the Property Group, City will complete the previously furnished Exhibits "A" and "B" and will provide Lessor a completed and executed Exhibit "C" (Certificate of Acceptance). Lessor must pay a Contractor, or reimburse City for any payment it made to a Contractor, for a Property Group on the same day that the Amortization Schedule Exhibit "B" begins, which must be within three business days of receipt of all documents from the City. Contract Administrator must provide Lessor, in a form satisfactory to Lessor, the following: (a) an Exhibit "A" and Exhibit "B" executed by City and Lessor; (b) an Exhibit "C" executed by City; (c) a motion, or other evidence, showing official action taken by the City Council to authorize acquisition of the Property Group on the terms provided in Exhibit "A "; (d) Contractor invoice(s) and /or bill(s) of sale relating to the Property Group, and if the invoices have been paid by City evidence of payment thereof, and if applicable, evidence of official intent to reimburse such payment as required by the Regulations; 7 (e) as applicable, financing statements executed by City as debtor and/or the original certificate of title or manufacturer's certificate of origin and title application if any of the Property Group is subject to certificate of title laws; (f) a completed and executed Form 8038 -G or -GC or evidence of filing thereof with the Secretary or Treasury; and (g) any other documents or items reasonably required by Lessor. Simultaneously with the delivery of the Property Group, Lessor shall cooperate with the City and the City shall take all actions necessary to vest legal title to the Property Group in the City, and to perfect a security interest therein in favor of Lessor or a person, firm, or corporation designated by Lessor. Within three (3) business days of Lessor's receipt of the documents listed above in (a) -(g) in form and substance satisfactory to Lessor, Lessor shall make full payment to Contractor(s) of all funds applicable to the accepted Property Groups by either wire transfer or overnight delivery of a check at the direction of the Contract Administrator. If the escrow agreement described in Section 3.6 is utilized Lessor will consent to a disbursement from the escrow account for payment of all funds applicable to the accepted Property Group within three (3) business days of Lessor's receipt of the documents listed in (a) -(g) above in form and substance satisfactory to Lessor. Section 3.3. Lease. Lessor hereby leases all Property made subject to this Agreement to the City, and the City hereby leases such Property from Lessor, upon the terms and conditions set forth in this Lease. Section 3.4. Possession and Enioyment. Lessor hereby covenants to provide the City during the Lease Term with the quiet use and enjoyment of the Property, and the City will during the Lease Term peaceably and quietly have and hold and enjoy the Property, without suit, trouble, or hindrance from Lessor, except as expressly set forth in this Agreement. Lessor will, at the request of the City and at the City's cost, join in any legal action in which the City asserts its right to such possession and enjoyment to the extent Lessor lawfully may do so. Section 3.5. Lessor's Access to Property. The City agrees that Lessor may at all reasonable times examine and inspect the Property. The City further agrees that Lessor will have such rights of access to the Property as may be reasonably necessary to cause the proper maintenance of the Property in the event of failure by the City to perform its obligations hereunder. Section 3.6 Alternative Procedure; Escrow Agreement. Notwithstanding the provisions of Section 3.2, if, upon agreement by Lessor and City as to any Property Group to be acquired and leased by City under this Agreement, Lessor and City enter into an escrow agreement (which shall name Lessor as the sole escrow agent) establishing an account from which the Property Group cost is to be paid (the "Escrow Account ") (a) Lessor and City will immediately complete and execute an Exhibit A and Exhibit B relating to the Property Group; (b) the amount deposited by Lessor into the Escrow Account will be a loan from Lessor to City which will be repaid by the Lease Payments due under the related Lease; and (c) the Lease Payments relating to the I Property Group will have an aggregate Principal component equal to the amount of Lessor's deposit into the Escrow Account and will be due and payable as provided in the related Exhibit B commencing upon the deposit of funds by Lessor into the Escrow Account. All interest earned on an Escrow Account will be paid to City. Lessor must not underfund or overf nid the Escrow Account. If City fails to purchase all Property provided for by an Escrow Account, any remaining funds will be refunded to City or applied to future Lease Payments. All funds in the Escrow Account shall be invested in accordance with City's Investment Policy (a written copy of which has been provided by City to Lessor) and The Texas Public Funds Investment Act. The parties hereto hereby expressly acknowledge and agree that no actions undertaken pursuant to this Section 3.6 shall be interpreted as any exercise by City of its rights to effect a prepayment of any Lease Payments pursuant to Section 5.5 of this Agreement. ARTICLE 4. TERM OF MUNICIPAL LEASE Section 4.1. Lease Term. This Agreement will be in effect commencing upon its date of execution for a period of one (1) years; provided that any Lease for a Property Group will remain in effect for a Term commencing upon its date of execution and ending as provided in Section 4.5. The City and the Lessor may renew this Agreement for up to four additional one year terms. The additional agreement period will be one year and will commence automatically unless the City or Lessor notifies the other party in writing at least ninety (90) days prior to the end of the then - current term, that it wishes not to renew the Agreement or wishes to modify the terms of this Agreement. If City terminates a Property Group or defaults, Lessor has no obligation to fund future Property Group acquisitions. Section 4.2. Termination by the City. The Lease with respect to a particular Property Group will be in effect for the Original Term and for each of the Additional Terms shown in Exhibit "B ", unless terminated prior thereto by City as provided in this Section. Not less than one hundred twenty (120) days before the end of the Original Term or any Additional Term, City may give written notice to Lessor to terminate such Lease if and only if either one (1) of the two (2) following conditions is true: (i) City fails to appropriate sufficient funding to meet City's obligations under any such Lease; or (ii) City has elected to prepay any Lease Payments related to any such Lease and has complied in all respects with the prepayment provisions of Section 5.5 (Prepayment Provision) of this Agreement. Upon termination by City because of either such event, the Lease with respect to the related Property Group will terminate and expire at the end of such Original Term or Additional Term then in effect on the date of the City's written notice of termination. The City may effect such termination by giving Lessor such written notice and by paying to Lessor any Lease Payments and other amounts due under such Lease which have not been paid at or before the end of the then current Original Term or Additional Term. In the event of termination of a Lease, the City will comply with the instructions of Lessor pursuant to Section 12.3. Section 4.3. Effect of Termination. Upon termination of a Lease with respect to the related Property Group, the City will not be responsible for the payment of any additional Lease Payments coming due with respect to succeeding Fiscal Years, but if the City has not delivered possession and conveyed to Lessor or released its interest in the Property Group within ten (10) days after the date of termination, the termination will nevertheless be effective, but the City will be responsible for the payment of damages equal to the amount of the Lease Payments thereafter I coming due under the page of Exhibit "B" attributable to the number of days after such ten (10) day period during which the City fails to take such actions and for any other loss suffered by Lessor as a result of the City's failure to take such actions as required. Section 4.4. Termination of Lease Term. The Term of each Lease will terminate upon the occurrence of the first of the following events: (a) the termination thereof by the City with respect to the related Property Group in accordance with Section 4.2; (b) the exercise by the City of its option to purchase Lessor's interest in the related Property Group pursuant to Article 10.; (c) a default by the City with respect to the related Property Group and Lessor's election to terminate the Lease with respect to such Property Group pursuant to Article 10.; or (d) the payment by the City of all Lease Payments and all other amounts authorized or required to be paid by the City hereunder with respect to the related Property Group. Section 4.5. Termination of Agreement. Either Lessor or City may terminate this Agreement as to any further financings hereunder after the expiration of the initial one -year term or after the expiration of any annual extension term by giving 90 days written notice to the other as set out in Section 13.1 herein. Notwithstanding the termination, the Agreement will remain in full force and effect with respect to Leases outstanding as of the date of such termination, and such Leases may terminate only as provided in Section 4.4 herein. ARTICLE 5. LEASE PAYMENTS Section 5.1. Lease Payments. City agrees to pay Lease Payments during the Lease Term in the amounts specified in each Exhibit "S ". Lessor shall invoice City monthly with each invoice stating the Property Group Lease number (A -__) and Lease Payment for each Property Group for which payment is invoiced. Using a format agreed to by the Contract Administrator and Lessor's authorized representative, City shall make monthly payments on the first business day of the month; however, the Contract Administrator reserves the right to change the payment date for future Leases on 90 days prior written notice to Lessor. All Lease Payments must be paid to Lessor at its offices at the address specified in the first paragraph of this Lease, or to such other person(s) or entity(ies) to which Lessor has assigned such Lease Payments as specified in Article 11., at such place as such assignee may designate by written notice to the Contract Administrator. The City shall pay the Lease Payments exclusively from monies legally available therefore, in lawful money of the United States of America. Interest with respect to the Lease Payments for any Property Group accrues from the date of Lessor's payment to Contractor or, if the escrow agreement described in Section 3.6 is utilized, from the date of Lessor's deposit of funds with the escrow agent. 10 Section 5.2. Current Expense. The obligations of the City under this Agreement, including its obligation to pay the Lease Payments due with respect to the Property, in any Fiscal Year for which this Agreement is in effect, constitutes a current expense of the City for such Fiscal Year and does not constitute an indebtedness of the City within the meaning of the constitution and laws of Texas. Nothing herein constitutes a pledge by the City of any taxes or other monies, other than monies currently appropriated from time to time by or for the benefit of the City in the annual budget of the City and the proceeds or Net Proceeds of the Property, to the payment of any Lease Payment or other amount coming due hereunder. Section 5.3. Interest Component. A portion of each Lease Payment is paid as and represents the payment of Interest. Exhibit "B" sets forth the Interest component of each Lease Payment. Lessor agrees that the interest component for each Property Group be established as follows: Amortization Period Applicable Interest Rate 12 months 79% of 11 month thru 1 year Secure Connect Bullet Rate plus 1.300% 18 months 79% of 11 month thru 1 year Secure Connect Bullet Rate plus 1.300% 24 months 79% of 1 year thru 1.5 year Secure Connect Bullet Rate plus 1.300% 30 months 79% of 1 year thru 1.5 year Secure Connect Bullet Rate plus 1.300% 36 months 79% of 1.5 year thru 2 year Secure Connect Bullet Rate plus 1.300% 42 months 79% of 1.5 year thru 2 year Secure Connect Bullet Rate plus 1.300% 48 months 79% of 2 year thru 2.5 year Secure Connect Bullet Rate plus 1.300% ; 60 months 79% of 2.5 year thru 3 year Secure Connect Bullet Rate plus 1.300% 72 months 79% of 3 year thru 4 year Secure Connect Bullet Rate plus 1.456% 84 months 79% of 3 year thru 4 year Secure Connect Bullet Rate plus 1.495% 120 months 79% of 5 year thru 6 year Secure Connect Bullet Rate plus 1.606% The Interest Rate will be calculated on the basis of a 360 day year. 11 Section 5.4. Lease Payments to be Unconditional. The obligation of the City to make Lease Payments or any other payments required hereunder during a Lease Term is absolute and unconditional in all events, subject to Non - appropriation. Notwithstanding any dispute between the City and Lessor or any other person, the City shall make all Lease Payments when due and shall not withhold any Lease Payment pending final resolution of such dispute nor shall the City assert any right of set -off or counterclaim against its obligation to make such Lease Payments required under this Agreement. The City's obligation to make Lease Payments during any Lease Term shall not be abated through accident or unforeseen circumstances. However, nothing herein may be construed to release Lessor from the performance of its obligations hereunder; and if Lessor fails to perform any such obligation, the City may institute such legal action against Lessor as the City may deem necessary to compel the performance of such obligations or to recover damages therefor. Section 5.5. Prepayment Provision. City shall have the right to prepay any Lease Payments (i) at any time upon 30 days prior written notice to Lessor and (ii) in accordance with Article 10 hereof. Section 5.6. No Other Fees. The City will pay Lessor no other fees than the Interest and Principal, late charges and other amounts as specifically provided in this Agreement. Section 5.7. Appropriations. (a) City, by entering into this Agreement, acknowledges its current intention to make all payments due under this Agreement during its current Fiscal Year on the dates such payments are then due, but does not commit to a legal or other obligation to make other payments due under this Agreement or to incur any liability or debt beyond the revenue and income provided during its then current Fiscal Year. The liability and obligations of City during each Fiscal Year and remedies of Lessor will be limited to recovery only of funds appropriated for payments for such Fiscal Year. (b) City agrees (i) that the governing body of City shall, for each ensuing Fiscal Year in which the payments are scheduled to be made, to the extent funds have been appropriated for such Fiscal Year, make all such payments as and when due; and (ii) that if sufficient funds are appropriated and budgeted for the next Fiscal Year for the sale and lease of the Property, then the relevant Lease and Lease Payments will continue during such Fiscal Year. Section 5.8. Funding Intent. City reasonably believes that sufficient funds can be obtained to make all installment payments and other payments during the term. of this Agreement. City affirms that funds to pay installment payments and other payments under this Agreement are available for City's current Fiscal Year. City and Lessor agree that City's obligation to make installment payments under this Agreement will be City's current expense and will not be interpreted to be a debt in violation of applicable law or constitutional limitations or requirements. Nothing contained in this Agreement will be interpreted as a pledge of City's general tax revenues, funds or moneys. 12 ARTICLE 6. ACTIONS ARISING OUT OF PROPERTY USE: DAMAGE OR DESTRUCTION OF PROPERTY; INSURANCE Section 6.1. To the extent permitted by Texas law, the City agrees to indemnify, protect, save, and keep harmless Lessor or any assignee or transferee of Lessor and their respective agents and servants from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, costs, and expenses (including reasonable attorney's fees) of whatsoever kind or nature, imposed on, incurred by, or asserted against Lessor that in any way relate to or arise out of the Property, or any part thereof, including, without limitation, the construction, purchase, delivery, installation, ownership, leasing or return of the Property as a result of the use, maintenance, repair, replacement, operation or condition thereof (whether defects are latent or discoverable by Lessor or by the City), except such as may result from the negligence or willful misconduct of Lessor or any assignee or transferee of Lessor or any of their respective agents and servants. This indemnification will be effective from the date the first Property Group is leased by the City and shall survive the termination of this Agreement. City agrees to give Lessor prompt written notice of any claim or liability hereby indemnified against. The City shall not be required to pay any federal, state, or local income, inheritance, estate, succession, transfer, gift, franchise, gross receipts, profit, excess profit, capital stock, corporate, or other similar tax payable by Lessor, its successors or assigns. Section 6.2. Damage to or Destruction of Property. If after delivery of any Property to the City, such Property is lost, stolen, destroyed, or damaged beyond repair, the City shall as soon as practicable after such event either: (i) replace the same at the City's sole cost and expense with Property of equal or greater value to the Property immediately prior to the time of the loss occurrence, such replacement Property to be subject to Lessor's reasonable approval, whereupon the replacement will be substituted in this Lease by appropriate endorsement; or (ii) pay the applicable Purchase Option Price of the Property. The City shall notify Lessor of which course of action it will take within fifteen (15) days after the loss occurrence and shall complete the action within six (6) months of the loss occurrence, provided if City is not in default hereunder and has not terminated any Lease under Section 4.2, Lessor may agree to extension of the time for performance under clause (i) if the City provides evidence that the replacement Property has been ordered. If the City fails or refuses to notify Lessor within the required period, Lessor may declare the Purchase Option Price applicable to the Property immediately due and payable by the City. The Net Proceeds of all insurance payable with respect to the Property will be used to discharge the City's obligation under this Section. On payment of the Purchase Option Price, this Lease will no longer apply to the Property and the City thereupon becomes entitled to the Property AS IS, WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY THE CITY, except that the Property must not be subject to any lien or encumbrance created by or arising through Lessor. 13 The parties hereto mutually agree that, only as to Property of a nominal value, should such property be destroyed, upon the mutual written agreement between City and Lessor, the Lease of such Property may be continued and City may continue to make the relevant Lease Payments as set forth in Exhibit B hereto. Section 6.3. Insurance. With respect to all Property subject to any Leases, at all times City shall use its best efforts to provide an actuarially sound self - insurance liability program with limits which are established by the Texas Tort Claims Act. Upon prior written request by Lessor, City will deliver to Lessor evidence satisfactory to Lessor showing the existence of such insurance, including, without limitation and as applicable, a letter confirming its self - insurance status. The City will also provide commercial property /casualty coverage and deliver, upon request, proof of insurance. If City fails to maintain such insurance, Lessor may obtain such insurance as Lessor deems necessary, and City will reimburse Lessor for all premiums therefor, together with interest at the maximum rate permitted pursuant to Chapter 1204, Government Code, as amended, or other applicable law then in effect. ARTICLE 7. OTHER OBLIGATIONS OF THE CITY Section 7.1. Use; Permits. The City shall obtain all permits and licenses necessary for the installation, operation, possession, and use of the Property. The City shall comply with all state and federal laws applicable to the installation, use, possession, and operation of the Property, and if compliance with any such state and federal law requires changes or additions to be made to the Property, such changes or additions shall be made by the City at its expense. City agrees that if City is required to deliver any item of Property to Lessor or Lessor's agent, the Property shall be free of all substances which are regulated by or form a basis for liability under any environmental law. City shall comply with all license and copyright requirements of any software used in connection with the Property. Section 7.2. Maintenance of Property by the City. The City shall maintain, preserve, and keep the Property in good repair, working order, and condition, and shall make all repairs and replacements necessary to keep the Property in such condition. Section 7.3. Taxes, Other Governmental Charges and Utility Charges. Except as expressly limited by this Section, the City shall pay all charges of any kind which are at any time lawfully assessed or levied against the City with respect to the Property, the Lease Payments or any part thereof, which become due during each Lease Term. The Property which is the subject of this Agreement is, and shall be during all Lease Terms, owned and held only for public purposes and devoted exclusively to the use and benefit of the public and, as such, is exempt from ad valorem property tax. If Lessor receives any notice of taxes due with respect to any Property, it shall not pay such taxes but will promptly forward such notice to the Contract Administrator. The City shall also pay when due all gas, water, steam, electricity, heat, power, telephone, and other charges lawfully assessed or levied against the City incurred in the operation, maintenance, use, occupancy, and upkeep of the Property, and all special assessments and charges lawfully made by any governmental body for public improvements that may be secured by a lien on the Property; provided that with respect to special assessments or other governmental charges that may lawfully be paid in installments over 14 a period of years, the City shall be obligated to pay only such installments as are required to be paid during the relevant Lease Term as and when the same become due. The City may, at its own expense and in its own name, in good faith contest any such taxes, assessments, utility, and other charges and, in the event of any such contest, may permit the taxes, assessments, utility, or other charges so contested to remain unpaid during the period of such contest and any appeal therefrom unless Lessor shall notify the City that, in the opinion of Independent Counsel, the basis for which must be expressly detailed in the opinion, by nonpayment of any such items the interest of Lessor in the Property will be materially endangered or the Property or any part thereof will be subject to loss or forfeiture, in which event the City shall promptly pay such taxes, assessments, utility or other charges or provide Lessor with full security against any loss which may result from nonpayment, in a form satisfactory to Lessor. The Property acquired pursuant to this Agreement is under the sole possession and exclusive use of the City as part of the City's governmental services in furtherance of its public purpose. The City does not make any representation, implied or otherwise, regarding the exemption or taxability of the Property for purposes of ad valorem and personal property taxation. All UCC statements, financing statements, or instruments filed of record to reflect Lessor's interest in the Property must state that: All property made subject of this UCC filing are owned by and under the sole and exclusive use of the City of Corpus Christi, a political subdivision of the State of Texas, and are used as part of the City's governmental services in furtherance of its public purpose. The City asserts all exemptions provided for political subdivisions of the State of Texas as authorized under the Constitution and laws of the State of Texas against the assessment, levy, or charges for ad valorem taxation, personal property taxation, or any other charges. Section 7.4. Advances. If the City fails to perform any of its obligations under this Article, Lessor may, but is not obligated to, take such action as may be necessary to cure such failure, including the advancement of money, and the City is obligated to repay all such advances on demand, with interest at the rate of the existing loan or the maximum rate permitted by law, whichever is less, from the date of the advance to the date of repayment. ARTICLE 8. TITLE Section 8.1. Title. During each Lease Term, and so long as the City is not in default under Article 12., legal title to the Property and any and all repairs, replacements, substitutions, and modifications to the Property will be in the City. Upon termination of a Lease under Section 4.2 or after default of the City, full and unencumbered legal title to such Property Group passes to Lessor, and the City shall have no further interest therein. In either of such events, the City shall execute and deliver to Lessor such documents as Lessor may reasonably request to evidence the passage of legal title to such Property Group to Lessor and the termination of the City's interest therein, and upon request by Lessor, City will deliver possession of the Property Group to Lessor in accordance with Section 12.3. Upon termination of a Lease with respect to any Property Group through exercise of the City's option to purchase pursuant to Article 10. or 15 through payment by the City of all Lease Payments and other amounts relating thereto, Lessor's security and all other interest in such Property Group terminates, and Lessor shall execute and deliver to the City such documents secu tthe or otherContract i interest in such Property Groupy request to evidence the termination of Lessor's y Section 8.2. Security Interest. Lessor has and retains a security interest, under the Uniform Commercial Code, in the Property, the proceeds thereof and all repairs, replacements, substitutions, and modifications thereto or thereof made pursuant to Section 8.5, in order to secure the City's payment of all Lease Payments due during each Lease Term and the performance of all other obligations herein to be performed by the City. In the event such Property is a motor vehicle, Lessor may require the state of registration to note Lessor's security interest on its records and the Certificate of Title for the vehicle. The City, acting through its Contract Administrator, will join with Lessor in executing such financing statements or other documents and will perform such acts as Lessor may request to establish and maintain a valid security interest in the Property. All UCC statements must indicate that title to a Property Group is in the City and exempt from ad valorem taxation as public property used for a public purpose under the constitution and laws of the State of Texas and contain the bold language of the indented paragraph in Section 7.3. If requested by Lessor, the City shall conspicuously mark the Property with lettering, labels, or tags as are reasonably approved by the City Manager, and maintain such markings during each Lease Term, so as clearly to disclose Lessor's security interest in the Property. If Lessor requires the Certificate of Title to note Lessor's security interest in a Property, upon payment in full by City of all Lease Payments and other related amounts, Lessor must give City a written release of Lessor's security interest so that the Certificate of Title may be reissued in the name of City without any security interest. the City shall not, directly or indirectly, Section 8.3. Liens. During each Lease Term, lien, charge, encumbrance, or create, incur, assume, or suffer to exist any mortgage, pledge, claim on or with respect to the Property, other than All Property is exempt Lessor and the City as local d valorem herein provided and Permitted Encumbrances. P taxation as property owned by a political subdivision and used for public purposes. Lessor shall not pay or incur any charge, assessment, or tax on any Property Group for which the City can claim an exemption from such charges as property used by a political subdivision of the State of Texas for public purposes as provided by the constitution and laws of the State of Texas. Except as expressly provided in Section a this remCity oveshall ysuch mortgage pledge, lien, take such action as may be necessary charge, encumbrance, or claim if the same arise at any time. Section 8.4. Installation of the City's Property. The City may at any time in its sole discretion and at its own expense, install other items of equipment in or upon the Property, which items must be identified by tags or other symbols affixed thereto as property of the City. All such items so identified remain the sole property of the City, in which Lessor has no interest, and may be modified or removed by the City provided that the City must repair and restore any damage to the Property resulting from the installation, modification, or removal of any such items. Nothing in this Lease prevents the City from purchasing items to be installed pursuant to this Section under a conditional sale or lease with option to purchase contract, or subject to a vendor's lien or security agreement, as security for the unpaid portion of the purchase price thereof, provided that no such lien or security interest attaches to any part of the Property. 16 Section 8.5. Modification of Property. The City shall, at its own expense, have the right to make repairs, replacements, substitutions, and modifications to all or any of the parts of the Property. All such work and any part or component used or installed to make a repair or as a replacement, substitution, or modification, will thereafter comprise part of the Property and be subject to the provisions of this Agreement. Such work must not in any way damage the Property or cause it to be used for purposes other than those authorized under the provisions of state and federal law or contemplated by this Agreement; and the Property, upon completion of any such work must be of a value which is not less than the value of the Property immediately prior to the commencement of such work. Any property for which a replacement or substitution is made pursuant to this Section may be disposed of by the City in such manner and on such terms as are determined by the City. The City will not permit any mechanic's or other lien to be established or remain against the Property for labor or materials furnished in connection with any repair, replacement, substitution, or modification made by the City pursuant to this Section; provided that if any such lien is established and the City shall first notify Lessor in writing of the City's intention to do so, the City may in good faith contest any lien filed or established against the Property, and in such event may permit the items so contested to remain undischarged and unsatisfied during the period of such contest and any appeal therefrom unless Lessor shall notify the City that, in the opinion of Independent Counsel, the basis for which must be expressly detailed in the opinion, by nonpayment of any such item the interest of Lessor in the Property will be materially endangered or the Property or any part thereof will be subject to loss or forfeiture, in which event the City will promptly pay and cause to be satisfied and discharged all such unpaid items or provide Lessor with full security against any such loss or forfeiture, in form satisfactory to Lessor. Lessor will cooperate fully with the City in any such contest, upon the request and at the expense of the City. Section 8.6. Personal Property. The Property is and at all times remains personal property notwithstanding that the Property or any part thereof may be or hereafter become in any manner affixed or attached to or embedded in or permanently rested upon real property or any building. ARTICLE 9. WARRANTIES Section 9.1. Selection of Property. The Property and the Contractor have been selected by the City, and Lessor will have no responsibility in connection with the selection of the Property, its suitability for the use intended by the City, the acceptance by the Contractor of the order submitted, or any delay or failure by the Contractor to manufacture, deliver, or install the Property for use by the City. Upon acceptance of the Property, the City will add the serial number of the Property to Exhibit "A ". Section 9.2. Installation and Maintenance of Property. Lessor shall have no obligation to install, erect, test, inspect, service, or maintain the Property under any circumstances, but such actions are the obligation of the City or the Contractor. Section 9.3. Contractor's Warranties. Lessor hereby assigns to the City for and during each Lease Term, all of its interest in all Contractor's warranties and guarantees, express or 17 implied, issued on or applicable to the Property, and Lessor hereby authorizes the City to obtain the customary services furnished in connection with such warranties and guarantees at the City's expense. Section 9.4. Patent Infringement. Lessor hereby assigns to the City for and during each Lease Term all of its interest in patent indemnity protection provided by a Contractor with respect to the Property. Such assignment of patent indemnity protection by Lessor to the City constitutes the entire liability of Lessor for any patent infringement by Property fuunished pursuant to this Lease. Section 9.5. Disclaimer of Warranties. THE PROPERTY IS DELIVERED AS IS, WHERE IS, AND LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY THE CITY OF THE PROPERTY, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE PROPERTY EXCEPT AS SET FORTH IN THIS AGREEMENT. ARTICLE 10. OPTION TO PURCHASE Section 10.1. When Available. The City has the option to purchase Lessor's interest in any Property Group on any Payment Date relating thereto for the then applicable Purchase Option Price relating thereto, but only if the City is not in default under this Agreement, and only in the manner provided in this Article. Section 10.2. Exercise of Option. The City will give written notice to Lessor of its intention to exercise its option with respect to any Property Group not less than thirty (30) days prior to the Payment Date on which the option is to be exercised and will deposit with Lessor on the date of exercise an amount equal to all Lease Payments and any other amounts relating to such Property Group then due or past due (including the Lease Payment relating thereto due on the Payment Date on which the option is to be exercised) and the applicable Purchase Option Price relating thereto. The closing will be on the Payment Date on which the option is to be exercised. Section 10.3. Release of Lessor's Interest. Upon execution of the purchase option with respect to any Property Group by the City, Lessor will convey or release to the City, all of its right, title, and /or interest in and to the Property Group by delivering to the Contract Administrator such documents as the City Attorney deems necessary for this purpose. ARTICLE 11. ASSIGNMENT, SUBLEASING, MORTGAGING, AND SELLING Section 11.1. Assignment of Lessor. All of Lessor's right, title, and/or interest in and to any Property Group, the Lease Payments and other amounts relating thereto due hereunder, and the right to exercise all rights under this Agreement relating to such Property Group may be assigned and reassigned in whole or in part to one or more assignees or subassignees by Lessor at any time, only with the prior written consent of the City Manager, unless the Lessor continues to bill and service the Lease. No such assignment will be effective as against the City unless and until the assignor has filed with the City a copy of written notice thereof identifying the assignee. 18 The City will pay all Lease Payments due hereunder relating to such Property Groups to or at the direction of Lessor or the assigned named in the most recent assignment or notice of assignment with respect to such Property Group filed with the Contract Administrator. During each Lease Term, both Lessor and City will keep a complete and accurate record of all such assignments. In the event Lessor assigns participants in its right, title, and/or interest in and to any Property Group, the Lease Payments and other amounts due with respect thereto, and the rights granted under this Agreement relating thereto, such participants will be considered to be Lessor with respect to their participated shares thereof. Lessor may assign its rights under a Lease to an affiliate without notice to the City provided the Lessor continues to bill and collect Lease Payments and the Lessor agrees to keep a record of the assignments for purposes of Section 149(a) of the Internal Revenue Code. Section 11.2 Assignment and Subleasing by the City. Neither this Agreement nor the City's interest in the Property may be assigned by the City without the written consent of Lessor. However, the Property may be subleased by the City, in whole or in part, with the prior written consent of Lessor, subject to each of the following conditions: (i) Each Lease and the obligation of the City to make Lease Payments hereunder, remain the sole obligations of the City. The sublessee assumes the obligations of the City hereunder to the extent of the interest subleased. (iii) The City shall, within thirty (30) days after the delivery thereof, furnish or cause to be furnished to Lessor a true and complete copy of such sublease. (iv) No sublease by the City causes the Property to be used for a purpose other than an essential governmental function devoted exclusively to public use authorized under the provisions of the constitution and laws of Texas. (v) No sublease causes the Interest component of the Lease Payments due with respect to the Property to become included in the gross income of the recipient for federal income tax purposes. Section 11.3. Restriction on Mortgage or Sale of Property by the City. Except as provided in Section 11.2, the City shall not mortgage, sell, assign, transfer, or convey the Property or any portion thereof during the Term of this Agreement, or remove the same from its boundaries, without the written consent of Lessor provided that the City may designate the location of the Property outside the City boundaries in the Certificate of Acceptance. ARTICLE 12. EVENTS OF DEFAULT AND REMEDIES Section 12.1. Events of Default Defined. The following will be "events of default" under this Agreement with respect to any Property Group and the terms "events of default" and "default" mean, whenever they are used in this Agreement, with respect to any Property Group, any one or more of the following events: 19 (i) Failure by the City to pay a Lease Payment or other payment required to be paid under any Lease with respect to any Property Group at the time specified herein and the continuation of said failure for a period of five (5) days after telex, facsimile, or telegraphic notice given by Lessor that the payment referred to in such notice has not been received, such telex, facsimile or telegraphic notice to be subsequently confirmed in writing. (ii) Failure by the City to observe and perform any covenant, condition, or agreement on its part to be observed or performed with respect to any Property Group, other than as referred to in Clause (i) of this Section, for a period of thirty (30) days after written notice specifying such failure. Such notice to the City by the Lessor must request that the default be remedied, unless Lessor agrees in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the City within the applicable period and diligently pursued until the default is corrected. (iii) The filing by the City of a voluntary petition in bankruptcy, or failure by the City promptly to lift any execution, garnishment, or attachment of such consequence as would impair the ability of the City to carry on its governmental function or adjudication of the City as a bankrupt, or assignment by the City for the benefit of creditors, or the approval by a court of competent jurisdiction of a petition applicable to the City in any proceedings instituted under the provisions of the United States Bankruptcy Code, as amended, or under any similar acts which may hereafter be enacted. (iv) (A) Default with respect to City's bonds, other public securities, or other debt owed to banks or other financial institutions (collectively, "Debt ") which remains uncured in accordance with its terms or, (B) City defaults under any Debt or any other material agreement relating to Debt to which City is a party with third parties, resulting in a right by such third parties to accelerate the maturity of City's Debt, and such default materially impairs City's ability to pay its' obligations to Lessor under this Agreement. The provisions of this Section 12.1 and Section 12.2 are subject to the following limitation: if by reason of force majeure the City is unable in whole or in part to carry out its obligations under any Lease with respect to any Property Group, other than its obligation to pay Lease Payments with respect thereto which must be paid when due notwithstanding the provisions of this paragraph, the City will not be deemed in default during the continuance of such inability. The term "force majeure" as used herein means, without limitation, the following: acts of God, strikes, lockouts, or other labor disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States of America or the State or their respective departments, agencies or officials, or any civil or military authority; insurrections; riots; landslides; earthquakes; fires; storms; droughts; floods; explosions; breakage or accident to machinery, transmission pipes or canals; or any other causes or events not reasonably within the control of the City and not resulting from its negligence. The City agrees, however, to remedy with all reasonable dispatch the cause or causes preventing the City from carrying out its obligations under this Lease; provided that the settlement of strikes, lockouts, and other labor disturbances are entirely within the discretion of the City Manager and the City Manager is not required to make settlement of strikes, lockouts, and other labor disturbances by 20 acceding to the demands of the opposing party or parties when such course is in the judgment of the City Manager unfavorable to the City. Section 12.2. Remedies on Default. Whenever any event of default referred to in Section 12.1 hereof has happened and is continuing with respect to any Property Group, Lessor may, at its option and without any further demand or notice, take one or any combination of the following remedial steps: (i) Lessor may terminate the Lease with respect to such Property Group and declare all Lease Payments due thereunder with respect to such Property Group during the Fiscal Year in effect. (ii) Lessor may terminate the Lease with respect to such Property Group and repossess the Property Group wherever it is located; Lessor may enter upon the City's premises where the Property Group is kept and take possession of the Property Group. Notwithstanding the fact that Lessor has taken possession of the Property Group, the City must pay for the Lease Payments due with respect thereto during the Fiscal Year then in effect. (iii) Lessor may require City to deliver the Property to a location designated by Lessor. (iv) Lessor may proceed by court action to enforce performance by City of any terms of this Agreement and /or to recover all damages and expenses incurred by Lessor by reason of any "event of default." (v) Lessor may exercise any other right or remedy available to Lessor at law or in equity. (vi) If Lessor terminates the Lease with respect to a Property Group and takes possession of such Property contained therein, Lessor, within sixty (60) days thereafter, must use its commercially reasonable efforts to sell such Property or any portion thereof in a commercially reasonable manner at public or private sale in accordance with applicable state laws. Lessor must apply the proceeds of such sale to pay the following items in the following order: (a) all costs incurred in securing possession of the Property Group; (b) all expenses incurred in completing the sale; (c) the balance of any Lease Payments with respect to such Property Group owed by the City during the Fiscal Year then in effect; and (d) the applicable Purchase Option Price with respect to the Property Group due at the end of the Fiscal Year. Any sale proceeds remaining after disbursement pursuant to Clauses (a), (b), (c), and (d) must be paid to the City. Section 12.3. Return of Property. Upon the expiration or termination by the City of a Lease with respect to any Property Group prior to the payment of all Lease Payments in accordance with the related Exhibit "B," the City must transfer title to the Property Group to Lessor if Lessor so instructs in writing and return such Property Group to Lessor in the condition, repair, appearance, and working order required in Section 7.2, in the following manner as may be specified by Lessor: (i) by delivering the Property Group at the City's cost and expense to such place within Texas as Lessor specifies; or 21 (ii) by loading such portions of the Property Group as are considered movable at the City's cost and expense, on board such carrier as Lessor specifies and shipping the same, insurance freight prepaid, to the place within Texas specified by Lessor. If the City refuses to return the Property Group in the manner designated, Lessor may repossess the Property Group and charge to the City the costs of such repossession or pursue any remedy described in Section 12.2. Section 12.4. No Remedy Exclusive. No remedy conferred upon or reserved to Lessor by this Article is intended to be exclusive and every such remedy is cumulative and in addition to every other remedy at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or be construed as a waiver thereof but any such right and power may be exercised from time to time and as often as may be deemed expedient by Lessor or its assignee. Section 12.5. Agreement to Pay Attorneys' Fees and Expenses. In the event either party to this Agreement defaults under any of the provisions hereof and the non - defaulting party employs attorneys and /or incurs other expenses for the collection of monies or for the enforcement or performance or observance of any obligation or agreement on the part of the defaulting party herein contained, the parties agree that attorneys' fees and expenses will be paid as authorized by law. Section 12.6. Late Charge. Whenever any event of default referred to in Section 12.1, Clause (i) hereof has happened and is continuing with respect to any Property Group, Lessor has the right, at its option and without any further demand or notice, to require a late payment charge for each thirty (30) day period or part thereof during which such event of default occurs equal to existing interest rate of the delinquent amount not to exceed the maximum authorized by law and the City will be obligated to pay the same immediately upon receipt of Lessor's written invoice therefor; provided, however, that this Section 12.6 will not be applicable if or to the extent that the application thereof would affect the validity of this Agreement. 22 ARTICLE 13. ADMINISTRATIVE PROVISIONS Section 13.1. Notices. All notices, certificates, legal opinions, or other communications hereunder will be sufficiently given and will be deemed given when delivered or deposited in the United States mail in certified form with postage fully prepaid to the addresses specified in this Lease; provided that Lessor and the City, by notice given hereunder, may designate different addresses to which subsequent notices, certificates, legal opinions, or other communications will be sent. Unless otherwise changed by written notice, all notices required under this Lease must be directed to the following addresses: CITY: Director of Financial Services City of Corpus Christi P.O. Box 9277 Corpus Christi, Texas 78469 -9277 Phone (361) 826 -3604 Fax (361) 826 -3601 LESSOR: Vice President Frost Bank c/o Frost Leasing 100 West Houston Street San Antonio, Texas 78205 Phone (210) 220 -6850 Fax (210) 220 -6765 Daily communications between Contract Administrator and Lessor will be primarily documented by written notices sent by email. For daily, routine communications email notice is adequate. For formal notice required by any Article or Section of this Agreement email notice, if any, must be followed by United States certified mail notice. Section 13.2. Financial Information. During the Term of this Agreement, the Contract Administrator annually will provide Lessor with current financial statements, budgets, proof of appropriation of the ensuing Fiscal Year and such other financial information relating to the ability of the City to continue this Agreement as may be reasonably requested by Lessor or its assignee within 30 days of written request therefor. Section 13.3. Binding Effect. This Agreement inures to the benefit of and will be binding upon Lessor and the City and their respective successors and assigns. This Agreement must not be construed to confer any rights, duties, or interest on any party not a successor in interest or assignee of Lessor or the City nor may any such party rely on this Agreement as evidence of any duty, right, or obligation of Lessor or the City unless both the Lessor and the City, or their successors and assigns, acknowledge such duty, right, or obligation in writing, directly addressed to such third party. Section 13.4. Usury. It is the intention of the parties hereto to comply with any applicable usury laws; accordingly, it is agreed that, notwithstanding any provisions to the contrary herein or in any Exhibit A, in no event does this Agreement or any Lease hereunder require the payment or permit the collection of Interest or fees in excess of the maximum amount permitted by applicable law. Any such excess interest or fees must first be applied to , reduce Principal, and when no Principal remains, refunded to City. In determining whether the interest paid or payable exceeds the highest lawful rate, the total amount of interest must be spread through the applicable Lease Term so that the Interest is uniform through such term. 23 Section 13.5. Amendments, Changes, and Modifications. This Agreement may be amended or any of its terms modified only by written agreement in a document executed, and delivered by duly authorized representatives of both the Lessor and the City. Section 13.6. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit, or describe the scope or intent of any provisions, Articles, Sections, or Clauses of this Agreement. Section 13.7. Further Assurances and Corrective Instruments. Lessor and the City agree that they will, from time to time, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Property hereby leased or intended so to be, or for otherwise carrying out the expressed intention of this Agreement. The Contract Administrator is hereby authorized by the City Manager to execute such addenda as attached hereto as Exhibits for each Property Group and such other instruments, including, but not limited to, UCC statements, Bill of Sales, etc. that are necessary to carry out the responsibilities, duties, and obligations required of the City in accordance with the terms and conditions of this Agreement. Section 13.8. Execution in Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which constitute an original and all of which constitute but one and the same instrument. Section 13.9. Applicable Law. This Agreement must be governed by and construed in accordance with the laws of Texas. Section 13.10. Entire Agreement. This Agreement, and all addenda and exhibits, as may hereafter be executed, constitute the entire agreement between the parties and supersede all previous negotiations, commitments, and contracts. Section 13.11. Severability. In the event any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, such holding does not invalidate or render unenforceable any other provision hereof. To the extent any term herein creates a pecuniary obligation which constitutes a "debt" not payable under current revenues under Sections 5 and 7 of Article II of the Texas Constitution, such provision will be applied only to the extent performance or assumption of such obligation by the City is enforceable and valid under the constitution and laws of Texas. Section 13.12 Survival. All representations, warranties, covenants and agreements made by City pursuant to this Agreement shall survive the termination of this Agreement. Section 13.13 No "Net Effective Interest Rate ". Notwithstanding anything contained in this Agreement to the contrary, in no event shall interest contracted for, charged or received hereunder, plus any other charges in connection herewith that constitute interest on this Agreement under applicable law, result in a "net effective interest rate" as defined in Section 271.003(6) of the Local Government Code, as amended, in excess of the net effective rate at which public securities may be issued in accordance with Chapter 1204, Government Code, as amended. The amounts of such interest or other charges previously paid to Lessor in excess of 24 the amounts permitted by the preceding sentence shall be applied by Lessor to reduce the principal of the indebtedness incurred by City pursuant to this Agreement, or, at the option of Lessor, be refunded. To the extent permitted by Chapter 1204, Government Code, as amended, or other applicable law then in effect, determination of the maximum net effective interest rate shall at all times be made by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of this Agreement and such indebtedness, all interest at any time contracted for, charged or received from City hereof in connection with the indebtedness evidenced hereby, so that the actual rate of interest under this Agre indebtedness ement shall be co edoas the term hereof. Interest on the unpaid amounts simple interest. 25 IN WITNESS WHEREOF, Lessor has caused this Agreement to be executed in its corporate name by its duly authorized officer; and the City has caused this Agreement to be executed in its name by its City Manager, or his designee, effective for all purposes as of CITY OF CORPUS CHRISTI Michael Barrera Assistant Director of Financial Services LESSOR: Frost Bank January 3, 2013 By: Printed Name: Scott Anderson Title: Vice President P161 Exhibit "A " PROPERTY DESCRIPTION The following Property comprises a Property Group which is subject to the terms and conditions of that certain Master Lease Purchase Agreement entered into by and between the City of Corpus Christi and (Lessor) dated the day of 20 uanti Description Serial Number All Property made subject of this Agreement is owned by and under the sole and exclusive use of the City of Corpus Christi, a political subdivision of the State of Texas, and is used as part of the City's governmental services in furtherance of its public purpose. The City asserts all exemptions provided for political subdivisions Texas against the assessmentu levy, the Constitution and laws of the State charges for ad valorem taxation, personal property taxation, or any other charges. LESSOR By: Name: Title: CITY OF CORPUS CHRISTI Constance Sanchez Director of Financial Services 27 Exhibit "B " SCHEDULE OF LEASE PAYMENTS RELATING TO PROPERTY The following schedule of Lease Payments constitutes the applicable payments for the Property Group described on Exhibit "A " attached to that. certain Master Lease Purchase Agreement entered by and between the City of Corpus Christi and (Lessor) dated the day of � 20 Purchase Due Payment Total Principal Interest Date Number Payment Component Component All Property made subject of this Agreement is owned by and under the sole and exclusive use of the City of Corpus Christi, a political subdivision of the State of Texas, and is used as part of the City's governmental services in furtherance of its public purpose. The City asserts all exemptions provided for political subdivisions of the State of Texas as authorized under the Constitution and laws of the State of Texas against the assessment, levy, or charges for ad valorem taxation, personal property taxation, or any other charges. LESSOR: By: Name: Title: 1A CITY OF CORPUS CHRISTI Constance Sanchez Director of Financial Services Exhibit "C" CERTIFICATE OF ACCEPTANCE I, the undersigned, hereby certify that I am the duly qualified and acting of the City of Corpus Christi, (the City), and, with respect AcreementM by and between Lessor the dated ' ( e g City that: I. The Property listed on Exhibit "A " (the Property Group) has been delivered and installed in accordance with the City's Specifications (as that term is serial vehicle the identification Agreement) e and has been fully tested and finally accepted y tY nuinber(s) of the Property Group is /are listed on Exhibit "A- 2. The Lease Payments provided for on the page of Exhibit "B " relating to such Property Group (the Lease Payments) shall commence monthly beginning > and be due and payable on the first business day of each month thereafter. 3. The City has appropriated and /or taken oteerlawful er the Lease during the�urrent1fiscal sufficient to pay all Lease Payments required to b paid year of Lessee, and such monies will be applied in payment of all such Lease Payments due and payable during such current fiscal year. 4. During the Lease Term (as defined in the Lease) evo edPexclusively to public used by Such City to perform essential governmental functions functions are: 5. The City has not terminated any Lease under Section 4.2 of the Agreement and no Event by Default has occurred thereunder. 6. There is no litigation, action, suit, or proceeding pending rganization or existence trative agency, arbitrator, or governmental body, that challenges the City; the authority of the City or its officers her do cud dthe eby; authorization, approval, and execution of t he Lease and other the appropriation of monies, or any other action taken the Cites current fiscal years or the ability make lease Payments coming due under the Lea Y of the City otherwise to perform its obligations under the Lease and the transaction contemplated thereby. CITY OF CORPUS CHRISTI Constance Sanchez, Director of Financial Services Acknowledged by , Lessor, this day of Authorized Agent Exhibit "D" OPINION OF COUNSEL Re: Master Lease Purchase Agreement dated as of the day of , by and between the City of Corpus Christi ( "City ") and , (Lessor). Dear Sir or Madam: I have acted as counsel to the City with respect to the Master n this capacity have previewed described above (the Agreement) and various he Agreement and the Exhibits attached thereto. Based a duplicate original or certified copy g opinion upon the examination of these and such other documents as I deem relevant, it is my o that: 1, The City is a municipal corporation and political subdivision of the State of Texas, duly organized, existing, and operating under the Constitution and laws of the State of Texas. 2. The City is authorized and has power under applicable co law to enter into fated the eb e Agreement, and to carry out its obligations thereunder and the transaction em P The Agreement has been duly authorized, approved, executed, and delivered accordance with 3. Th g behalf of the City, and is a valid and binding contract of the City enforce its terms, except to the extent limited by state and fedea s relating affecting or affecting affecting t e bankruptcy, reorganization, or other laws of general application enforcement of creditor's rights. 4. The authorization, approval, and execution of the Agreement and all other proceedings of the City relating to the transactions contemplated thereby have ws erules, n d regulations of the with all applicable open meeting, public bidding, and all State of Texas. ropriation of monies to pay the Lease 5. The execution of the Agreement and the app constitutional, statutory, or Payments coming due thereunder do not result m the vi olation of any other limitation relating to the manner, form, or amount of indebtedness which may be incurred by the City. 6. There is no litigation, action, suit, or proceeding pending before any court, administrative agency, arbitrator, or governmental body, that challenges the organization or into the existence of the City; the authority of the City or its offic s o enter f he Agr ement, Exhibits employees to Agreement; the proper authorization, approval and/or execution thereto and other documents contemplated thereby; the appropriation of monies to make Lease EXHIBIT E Standard Form LLC LLC NO. BI NO. LEASE LINE OF CREDIT REQUISITION AND RECEIVING REPORT City of Corpus Christi P.O. Box 9277 Corpus Christi, Texas 78469 -9277 CITY CONTACT: CONTACT TELEPHONE: (361) 826 -3651 FAX (361) 826 -3601 BUDGETED EQUIPMENT COST: FINANCING TERM: 36 mo _ _, 42 mo _, 48 mo 60 mo _, 84 mo ____, 120 mo _, Other (specify) TOTAL APPROXIMATE COST: $ IS THE FIRST YEAR PAYMENT APPROPRIATED? Yes No (explain) PHONE NO: DATE: ACTIVITY NAME: ACCOUNT /FUND /ORG: DEPARTMENT CONTACT: _ DEPARTMENT APPROVAL: Signature Name: by Lessor: EQUIPMENT: Complete One Form Per Line Item and Attach Specification. Describe equipment (non - technical description) including quantity to be ordered. ESSENTIAL USE: ❑ Check if the proposed equipment replacement. needed,e and age s of ethmated equipment usefulb lif g replaced, why, the proposed equipment ❑ Check if the proposed equipment is additional. State why the equipment is needed and the estimated useful life. p AGENDA MEMORANDUM ',IeOR p,RAI ° Public Hearing and First Reading for the City Council Meeting of February 12, 2013 185 Second Reading /Action Item for the City Council Meeting of February 26, 2013 DATE: February 7, 2013 TO: Ronald L. Olson, City Manager FROM: Mark E. Van Vleck, P.E., Interim Director, (Development Services) Department MarkVV@cctexas.com (361) 826 -3246 PUBLIC HEARING — CHANGE OF ZONING Brooke Tract, L.P. (Case No. 0113 -01) Change from "RS -6" Single - Family 6 District to "RM -1" Multifamily 1 District Property Address: 7201 Brooke Road CAPTION: Case No. 0113 -01 Brooke Tract, L.P.: 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 is described as 39.99 acres out of Lots 16, 17, 18, 19, 28, 29, and 30, Section 26, Flour Bluff and Encinal Farm and Garden Tracts, located on the southeast corner of Rodd Field Road and Brooke Road. PURPOSE: The purpose of this item is to rezone the property to allow multifamily uses. RECOMMENDATION: Planning Commission and Staff Recommendation (January 16, 2013): Approval of the change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District. BACKGROUND AND FINDINGS: As detailed in the attached Zoning Report, 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 construction of an apartment complex on an approximately 40 -acre site with a maximum potential density of 22 dwelling units per acre. Staff has determined that the subject property is suitable for a medium - density apartment complex. This rezoning is compatible with the present zoning and conforming uses of nearby properties, and does not have a negative impact on the surrounding neighborhood. Although inconsistent with the adopted Future Land Use Plan, developing apartments will maintain the residential nature of the property in this area. ALTERNATIVES: 1. Approve an intermediate zoning district; or 2. Deny the request. OTHER CONSIDERATIONS: The zoning case is considered controversial because the owners north of Brooke Road attended the Planning Commission meeting and voiced their opposition and submitted a petition opposing the change of zoning. CONFORMITY TO CITY POLICY: The proposed change of zoning is in the Southside Area Development Plan and is not consistent with the adopted Future Land Use Plan, which slates the property for a low density residential use. The rezoning, however, would be appropriate for this location and it is consistent with elements of the Comprehensive Plan, such as locating medium density residential developments in areas with convenient access to an arterial -type roadway. EMERGENCY /NON- EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Planning /Environmental Services, Legal, and Planning Commission FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital o 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): Comments: None LIST OF SUPPORTING DOCUMENTS: PowerPoint Slides Zoning Report with Attachments Ordinance with Exhibits r ♦ � r �k Cc SOO U a o C N r (-P~ •q. ,x* : "—O) V urn ;gas 3 V.: "-: " . c°r� 9i uGi3aa5 'Lu 4Z sTQ I li f1 �.:, io yn.° say °o £GS' 1. q 1 r .tu n 4 mow 71 4 AV ki I ■ U/ von Ca U) 06 C: O s 0 AM (n m %+ U) '0 C� O E U o L � s C: C� C� ca ZONING REPORT Case No.: 0113 -01 HTE No. 12- 10000042 Planning Commission Hearing Date: January 16, 2013 a Applicant /Owner: Brooke Tract, L.P. a — .o Legal Description /Location: 39.99 acres out of Lots 16, 17, 18, 19, v a 28, 29, and 30, Section 26, Flour Bluff and Encinal Farm and Garden —J y Tracts, located on the southeast corner of Rodd Field Road and CL Q °a Brooke Road. o y From: "RS -6" Single - Family 6 District c To: "RM -1" Multifamily 1 District c Cr Area: 39.99 acres N Purpose of Request: To allow construction of an apartment complex. Existing Zoning Existing Land Use Future Land Use District Site "RS -6" Single - Family 6 Vacant Low Density Residential (D North "RS -6" Single - Family 6 Drainage Corridor Drainage Corridor N "RS -6" Single - Family 6 "RFami5 Vacant & Low Density South & Public Semi - Public Residential 4.15g1e w East "RS -6" Single - Family 6 Vacant Low Density Residential West "FR" Farm Rural & Vacant Low Density "RS -6" Single - Family 6 Residential Area Development Plan: The subject property is located in the Southside c Area Development Plan (ADP) and is planned for low density residential uses. cL The proposed change of zoning to the "RM -1" Multifamily 1 District is not a c consistent with the adopted Future Land Use Plan. o Map No.: 041031 and 042031 a Zoning Violations: None Transportation and Circulation: The subject property has approximately 790 feet of frontage along Rodd Field Road, which is an "A3" Primary - Arterial M Divided street. The property potentially has access to County Road 7B (future C CL Fred's Folly Drive), which is a proposed "Cl" Minor Residential Collector y street. The property also has potential indirect access to Brooke Road, which is a "Cl" Minor Residential Collector street, via a drainage crossing on County Road 7B (future Fred's Folly Drive). Zoning Report Case # 0113 -01 Brooke Tract, LP 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 construction of an apartment complex with a maximum potential density of 22 dwelling units per acre. Applicant's Development Plan: The proposed apartment complex will be constructed in two phases. The apartment complex will consist of 14 buildings in Phase 1 and 10 buildings in Phase 2. Phase 1 will consist of 280 dwelling units, while Phase 2 will consist of 220 dwelling units. The developer currently proposes a density of approximately 12.5 dwelling units per acre, which will classify the use as medium density residential (8 -22 dwelling units per acre). The apartment buildings will wrap around an existing 33 -acre private lake. The apartments will have access to Rodd Field Road. A 125 -foot drainage ditch located north of the subject property will buffer the subject property from the single - family neighborhood on the north side of Brooke Road. There will also be a portion of land zoned "RS -6" Single - Family 6 District between the subject property and the single - family neighborhood on the east side of County Road 7B (future Fred's Folly Drive). Existing Land Uses & Zoning: South of the subject property is vacant land zoned "RS- 4.5" Single - Family 4.5 District. North of the subject property is a drainage corridor, a single - family neighborhood, and a church zoned "RS -6" Single - Family 6 District. East of the subject property is vacant land zoned "RS -6" Single - Family 6 District. West of the subject property across Rodd Field Road is vacant land zoned "FR" Farm Rural District. Southwest of the subject property is the future site of Bay Area Fellowship church, which is zoned "RS -6" Single - Family 6 District. AICUZ: The subject property is not located in one of the Navy's Air Installation Compatibility Use Zones (AICUZ). Urban Proposed Existing Traffic Street Transportation Section Section Volume Plan Type (2011) Rodd Field "A3" Primary- 130' ROW 130' ROW 9,901 O Rd. Arterial Divided 79' paved 24' paved (2010) d Q "Cl" Minor 60' ROW 50' ROW Not L Brooke Rd. Residential 40' paved 32' paved Available in Collector Fred's "Cl" Minor 60' ROW 30' ROW Not Folly Dr. Residential 40' paved 12' paved Available (CR 7B) Collector 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 construction of an apartment complex with a maximum potential density of 22 dwelling units per acre. Applicant's Development Plan: The proposed apartment complex will be constructed in two phases. The apartment complex will consist of 14 buildings in Phase 1 and 10 buildings in Phase 2. Phase 1 will consist of 280 dwelling units, while Phase 2 will consist of 220 dwelling units. The developer currently proposes a density of approximately 12.5 dwelling units per acre, which will classify the use as medium density residential (8 -22 dwelling units per acre). The apartment buildings will wrap around an existing 33 -acre private lake. The apartments will have access to Rodd Field Road. A 125 -foot drainage ditch located north of the subject property will buffer the subject property from the single - family neighborhood on the north side of Brooke Road. There will also be a portion of land zoned "RS -6" Single - Family 6 District between the subject property and the single - family neighborhood on the east side of County Road 7B (future Fred's Folly Drive). Existing Land Uses & Zoning: South of the subject property is vacant land zoned "RS- 4.5" Single - Family 4.5 District. North of the subject property is a drainage corridor, a single - family neighborhood, and a church zoned "RS -6" Single - Family 6 District. East of the subject property is vacant land zoned "RS -6" Single - Family 6 District. West of the subject property across Rodd Field Road is vacant land zoned "FR" Farm Rural District. Southwest of the subject property is the future site of Bay Area Fellowship church, which is zoned "RS -6" Single - Family 6 District. AICUZ: The subject property is not located in one of the Navy's Air Installation Compatibility Use Zones (AICUZ). Zoning Report Case # 0113 -01 Brooke Tract, LP Page 3 Comprehensive Plan & Area Development Plan (ADP) Consistency: The proposed change of zoning is in the Southside Area Development Plan and is not consistent with the adopted Future Land Use Plan, which slates the property for a low density residential use. The rezoning, however, would be appropriate for this location and it is consistent with elements of the Comprehensive Plan, such as: 1.) Medium - density residential development should be located in areas with convenient arterial access (Comprehensive Plan, Residential Policy Statement F). 2.) Traffic hazards should be lessened by discouraging through traffic within residential areas (Comprehensive Plan, Residential Policy Statement J). Department Comments: • The subject property is suitable for medium - density residential uses. • There have been several attempts to develop this tract of land with single - family uses and all have failed for various reasons. Although inconsistent with the adopted Future Land Use Plan, developing apartments will maintain the residential nature of the property in this area. The proposed apartment complex will have direct access to Rodd Field Road. With direct access to an arterial -type road, traffic will be discouraged through the surrounding residential areas. This rezoning is compatible with the present zoning and conforming uses of nearby properties, and does not have a negative impact on the surrounding neighborhood. Planning Commission and Staff Recommendation (January 16, 20131 Approval of the change of zoning from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District. Number of Notices Mailed — 26 within 200' notification area; 4 outside notification area 0 As of January 17, 2013: In Favor — 2 (inside notification area); 0 (outside notification area) a 0 In Opposition — 5 (inside notification area); 0 (outside notification area) For 0.45% in opposition. Attachments: 1. Location Map (Existing Zoning & Notice Area) 2. Preliminary Development Plan 3. Public Comments (Letter and Petition) K : \DevelopmentSvcs \SHARED\ZONING CASES \2013 \0113 -01 Brooke Tract \0113 -01 Report for CC, Brooke Tract. CIOCX FR a " 9 8 �ACHAR"OLDA E%?fEN' A C H RS-6 SOUTH F "K " 2 13 RACT RM -1 Multifamily 1 IL Light Industrial RM -2 Multifamily 2 IH Heavy Industrial RM -3 Multifamily 3 PUD Planned Unit Dev. Overlay ON Professional Office RS -10 Single - Family 10 RM -AT Multifamily AT RS -6 Single- Family 6 CN -1 Neighborhood Commercial RS4.5 Single- Family4.5 CN -2 Neighborhood Commercial RS -TF Two - Family CR -1 Resort Commercial RS -15 Single - Family 15 CR -2 Resort Commercial RE Residential Estate CG -1 General Commercial RS -TH Townhouse CG -2 General Commercial SP Special Permit Cl Intensive Commercial RV Recreational Vehicle Park CBD Downtown Commercial RMH Manufactured Home CR -3 Resort Commercial FR Farm Rural H Historic Overlay BP Business Park Subject Property O Owners with 200' buffer in favor 4 Owners within 200' listed on v Owners attached ownership table /� in opposition 11 �%ISx 6 G_ 29 23 ­*� . F h M � M .a M To Whom It May Concern: My name is Leslie Fiscus and I live at 3221 Turkey Hollow Court in Corpus Christi. I am writing this letter in strong opposition to the proposed zoning change on the Brooke Road tract of land. I have been a resident in the South Fork II Subdivision since October of 2010. My family and I relocated to this specific subdivision for the proposed new schools, proximity to the south side and specifically, the lack of large multi - family housing. There have been several new subdivisions that have been and are being built in our area and it is becoming a great place for families. It is my opinion, that these zoning changes will quickly and dramatically affect these families. Effects on South Fork II Subdivision 1. Privacy - for residents whose property backs up to Brooke Road, there will be virtually no privacy from the second and third floors of an apartment complex. With most of South Fork II residents being families with young children, I am uneasy about the potential safety risks of this lack of privacy. 2. Traffic - Brooke Road is currently a narrow 2 -lane road, with no shoulder or sidewalks, and the certain traffic increase will create a motor vehicle and pedestrian risk for the residents of South Fork II and the tenants of the proposed apartments. Additionally, Rodd Field Road remains 2 -lanes from Mansions to Yorktown and the additional traffic might present traffic concerns for parents and school officials at the new Kolda Elementary. In closing, I would simply ask yourselves the question, "Would you want an apartment complex built in your backyard ?" I appreciate your time and this opportunity to voice some of our concerns regarding this issue. Sincerely, Leslie Fiscus Petition AGAINST proposed rezoning (Case #0113-01) We oppose the measure to allow rezoning from single family residential to multi-family residential apartments and urge our representatives to not permit rezoning. I � I I I ImIllil jlll�� 1� I �l� I jllj� I � I p �� I linpip III rezoning. Petition AGAINST proposed rezoning (Case #0 113-0 1 ) We oppose the measure to allow rezoning from single family residential to multi-family residential apartments and'urge our representatives to not permit rezoning. Petition AGAINST proposed rezoning Petition AGAINST proposed rezoning (Case #0113-01) Ordinance amending the Unified Development Code ( "UDC ") upon application by Brooke Tract, L.P. ( "Owner "), by changing the UDC Zoning Map in reference to 39.99 acres out of Lots 16, 17, 18, 19, 28, 29, and 30, Section 26, Flour Bluff and Encinal Farm and Garden Tracts, from the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District; amending the Comprehensive Plan to account for any deviations; and providing for a repealer clause and publication. WHEREAS, the Planning Commission has forwarded to the City Council its report and recommendation regarding the application of Brooke Tract, 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, January 16, 2013, during a meeting of the Planning Commission, and on Tuesday, February 12, 2013, 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. Upon application made by Brooke Tract, L.P. ( "Owner "), the Unified Development Code ( "UDC ") of the City of Corpus Christi, Texas ( "City "), is amended by changing the zoning on 39.99 acres out of Lots 16, 17, 18, 19, 28, 29, and 30, Section 26, Flour Bluff and Encinal Farm and Garden Tracts (the "Property "), located on the southeast corner of Rodd Field Road and Brooke Road, from the the "RS -6" Single - Family 6 District to the "RM -1" Multifamily 1 District (Zoning Map Nos. 041031 and 042031), as shown in Exhibits "A" and "B." Exhibit "A," which is a metes and bounds description of the Property, and Exhibit "B," which is a map to accompany the metes and bounds, are 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 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. 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 , 20 , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb The foregoing ordinance was read for the second time and passed finally on this the day of , 20 , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb PASSED AND APPROVED this the ATTEST: Armando Chapa City Secretary day of , 20 Nelda Martinez Mayor Page 2 of 2 URBAN ENGINEERING STATE OF TEXAS COUNTY OF NUECES Job No. 16198.B2.13 December 6, 2012 Revised: December 26, 2012 Fieidnotes for a 3999 acre tract of land out of Lots 16, 17, 18, 19, 28, 29, and 30, Section 26, Flour Bluff and Encinal Farm and Garden Tracts, a map of which is recorded in Volume A, Pages 41 thru 43, Map Records of Nueces County, Texas and being a portion of that 153.714 acre tract described in Warranty Deed dated February 14, 2006, executed by John C. Brooke, et al, to Brooke Tract, LP and recorded under Clerk's File No. 2006008362, Official Public Records of Nueces County, Texas; said 39.99 acre tract being more fully described by metes and bounds as follows: Commencing at a 5/8 inch iron rod with a red plastic cap stamped "Urban Engr C.C. TX" found on the southwest boundary of Brooks Road, a 60.00 foot wide public roadway, for the east corner of said 153.714 acre tract; Thence, South 29 °16'12" West, along the southeast boundary of said Lot 19 & 28, same being the southeast boundary of above mentioned 153.714 acre tract, a distance of 1542.62 feet to a point on the southeast boundary of said Lot 28; Thence, North 60 °4348" West, a distance of 200.00 feet for the Point of Beginning of this description and for the easternmost corner of this tract; Thence, South 29°16'12" West, a distance of 305.19 feet for the southernmost corner of this tract; Thence, North 60 °4424" West, a distance of 1254.70 feet for the a corner of this tract; Thence, North 19 °05'33" West, a distance of 633.49 feet for the a corner of this tract; Thence, North 70 °46'54" East, a distance of 141.95 feet for the a corner of this tract; Thence, North 299 0'20" East, a distance of 436.42 feet for the a corner of this tract; Thence, North 60 °49'40" West, a distance of 750.00 feet to the southeast boundary of Rodd Field Road, a public Roadway and for the westernmost corner of this tract; Thence, North 29'10'20" East, along the Southeast boundary of said Rodd Field Road, a distance of 691.38 feet for the a corner of this tract; S:1Surveying1 161981 B2131 FN1 6198B213- 39.99AC- LAKE- 2012.doe Page 1 of 3 (361)854 -3101 2725 SWANTNER DR. • CORPUS CHRISTI,TEXAS 78404 FAX (361)854 -6001 www.urbaneng.com EXHIBIT A TBPE Firm #145 Thence, North 55 °44'14" East, along the flared right -of -way of said Rodd Field Road a distance of 74.31 feet for the northernmost corner of this tract; Thence, South 60 °47'28" East, a distance of 2197.82 feet for the a corner of this tract; Thence, with the east boundary of this tract, as follows: South 29 °12'32" West, a distance of 130.39 feet; North 60 °56'33" West, a distance of 120.04 feet; North 65 051159" West, a distance of 205.28 feet; South 85 °49'40" West, a distance of 51.36 feet; South 13 056'00" West, a distance of 49.24 feet; North 84 °13'13" West, a distance of 3.73 feet; North 05 °39'56" West, a distance of 29.69 feet; North 16 °53'09" West, a distance of 36.08 feet; North 60 °50'11" West, a distance of 81.39 feet; North 48 024'18" West, a distance of 42.52 feet; North 61°51'10" West, a distance of 90.47 feet; South 22 °53'34" West, a distance of 29.06 feet; North 76 °5424" West, a distance of 161.73 feet; South 88 °01'16" West, a distance of 86.56 feet; North 80 °09'05" West, a distance of 47.12 feet; South 72 °29'25" West, a distance of 101.40 feet; North 61 °59'11" West, a distance of 28.78 feet; South 06 °44'02" West, a distance of 23.49 feet; South 66 °3231" West, a distance of 9.42 feet; South 50 °24'49" West, a distance of 102.39 feet for the south corner of this tract; North 39°35'11" West, a distance of 177.29 feet for a corner of this tract; North 50 009'56" West, a distance of 438.09 feet; South 37°31'39" West, a distance of 79.58 feet for a corner of this tract; South 29 °12'31" West, a distance of 92.76 feet; South 44 050'07" East, a distance of 576.15 feet; South 38°13'04" West, a distance of 7.08 feet; South 22 °58'40" West, a distance of 91.32 feet; South 49 059119" West, a distance of 30.25 feet; South 21 °25'16" West, a distance of 191.73 feet; South 15 °34'57" West, a distance of 111.37 feet; South 21 1122'38" West, a distance of 228.70 feet; South 01 004'22" East, a distance of 68.57 feet; South 34 °28'31" East, a distance of 54.15 feet; South 61 °15'04" East, a distance of 189.47 feet; South 58 °30'49" East, a distance of 207.78 feet; South 61016'40" East, a distance of 237.28 feet; South 17 °58'38" West, a distance of 7.30 feet; SASurveying1161981B2131FN 161985213- 39.99AC- LAKE -2U 12.doc Page 2 of 3 iO:A:i1 -.11WO South 74 039'09" West, a distance of 41.40 feet; South 70 °38'17" East, a distance of 57.96 feet; North 62 °04'20" East, a distance of 34.31 feet; Thence, South 61 °46'21" East, a distance of 377.36 feet for the Point of Beginning and containing 39.99 acres of land. Bearings based on the southeast boundary of Rodd Field Road, as monumented on the ground and shown as North 29 °10'20" East. This description is not based on a current on the ground survey. This description prepared' from previous surveys and record information. 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. S:\Surveying\16198\B213\FNI6198B213-39.99AC-LAKE-2012.doc Page 3 of 3 URBAN ENGINE Dan L. Urban, R.P.L.S. License No. 4710 �V'ouee.ea. ....1Y��T1L7f.� v.•a�]f X71 iO:A:ii:11r_l LINE ' ) pFd. la 5ie° IR with red Brooks Road (60' R.O.W. plastic cap stamped Point Of DISTANCE L36 561'46'21 "E 377.36' "Urban Engr C.C. TX" Commencement 34.31' L38 570'38'17 "E 57.96' L39 574'39'09 "W 41.40' L40 51 T58'38 "W L41 561'16'40 "E S60'47'28" E 2197.E2' 558'30'49 "E 207.7$' Drainage R.O.W. 189.47' L44 534'28'31 "E 54.15' L45 S01'04'22 "E 6$.57' L46 8 "W 42.52' L12 N60'50'11 "W �• L13 Lot 17, Section 26 L14 N0539'56 "W L11 L20 N84' 13' 13 "W N L16 Flour &u :f and Fncindi L17 58549'40 "W L1 L18 18 L19 0 N60'5fi'33 "VJ Farm and Garden Tracts 529'12'32 "W 130.39' Vol. A, Pgs. 41 -43, Map L7 1� o U Records of Nu ces County, Texas L L9 v v� 00 N59vg L6 L12 N �,� ■ S37.3113p 79.58 •09$ L3 See Detail "A" N N o S29'12'31 N39'35'1 L2 Lot 18, Lot 19, J r 92.76' 177.29 Section 26 Section 26 6o S44• , "A" S. 57 ~E L51 Detail � 1.26 acres L50 L40 ,�.� L18 N60'49'40V 750. �. 1 1.48 acres L16 N QdN. L12 Lot 16, SccCon 26 Oap TotelA 39.99A,s f L13 L1 6.52 acres 1° C4 L14 N Lot (q 16.64 acres out of 60 N70'46'5 'E Lot 30 r Line Lots 20 -21, 141.95 Section 26 Lot 31 L45 26 -27 I \ Section 26 r� °1 \ N�9n L44 L43 L42 L40 N60'43 '4"W 240.00 \ v C'. c; L41 L.36 II a L397 a 'le' /ono L36 •C 4 x N I� 529'16'1 305.19 imp o ID N60'44'24V 1254.70* Wcn ° J E a \ % a I� MN O N IIJ Lot 1, Block 1 Lot 29, Section 26 Lot 28, Section ao 26 p m a ° Zachary Koldo Elementary I School Track LINE BEARING DISTANCE Vol. 67, Pgs. 504 -505, Map L1 550'24'49 "W 102.39' j �+ Records of Nueces L2 566'32'31 "W 9.42' County, Texas L3 S0644'42 "W "W 23.49' L4 N61'59'11 28.78' I 3.0 acres t\ L5 572'29'25 "W 101.40' out of \ I L6 N80'09'45 "W "W 47.12' I Section 27, Section , e ,25Y.R. ,a'a.E. L7 L8 588'01'16 N76'54'24 "W 86.56' 161.73' L9 522'53'34 "W "W 29.06' Slough Road L10 N61'S1'1D 90.47' L11 N48'24'1 Note: No monumentation found or set unless otherwise noted. EXHIBIT B 400 0 400 800 Map to Accompany FIELDNOTES for a 39.99 acre tract of land GRAPHIC being out of Lots 16, 17, 18, 19, 28, 29 and 1" = 40SCALE 30, Section 26, Flour Bluff and Encino[ Farm and Garden Tracts, a map of which is recorded in Volume A, Pages 41 thru 43, Map Records URBA Rte• of Nueces County and being a of that DATE' Dec. 26. 2012 Dec. 6. 2012 portion 153.714 acre tract described in Warranty Deed SCAM j =r W' dated February 14, 2006, executed by John C. ENGINEERING JOB NO.: 16198.82.13 Brooke, et al Brooke Tract, LP and recorded HEE SHEET: 1 Of 1 : I I Ito under Clerks File No. 2006008361, Official CORPUS CHRISTI, TEXAS Public Records of Nueces County, Texas. DRAW Fam Na 1.15.• 2725 Sbvetaer St., Cows aisa; 7x 78404 BY: RLO PHONE (361) 854 -3101 FAXs� P\, n ' Se �2131FxiblgBB 33�Oj1;16%19124:58:il P [ eed LINE BEARING DISTANCE L36 561'46'21 "E 377.36' L37 N62'44'20 "E 34.31' L38 570'38'17 "E 57.96' L39 574'39'09 "W 41.40' L40 51 T58'38 "W L41 561'16'40 "E 237.28' L42 558'30'49 "E 207.7$' L43 561'15'04 "E 189.47' L44 534'28'31 "E 54.15' L45 S01'04'22 "E 6$.57' L46 8 "W 42.52' L12 N60'50'11 "W 81,39' L13 N16'S3'09 "N1 36.08' L14 N0539'56 "W 29.69' L1 S N84' 13' 13 "W 3.73' L16 51356'00 "W 49.24' L17 58549'40 "W 51.38' L18 N65'51'59'11J 205.28' L19 N60'5fi'33 "VJ 120.04' L20 529'12'32 "W 130.39' LINE BEARING DISTANCE L36 561'46'21 "E 377.36' L37 N62'44'20 "E 34.31' L38 570'38'17 "E 57.96' L39 574'39'09 "W 41.40' L40 51 T58'38 "W L41 561'16'40 "E 237.28' L42 558'30'49 "E 207.7$' L43 561'15'04 "E 189.47' L44 534'28'31 "E 54.15' L45 S01'04'22 "E 6$.57' L46 521'22'38 "W 228J0' L47 51534'57 "W 111.37' L48 521'25'15 "W 191.73' L49 549'59'19 "W 30.25' L5D 522'58'40 "W 91.32' L51 538'13'04 "W 7.08' FAR • Y�t AGENDA MEMORANDUM Action Item for the City Council Meeting of February 12, 2013 DATE: January 21, 2013 TO: 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 Execute Interlocal Agreement County Road 52 Water Line Extension CAPTION: Resolution authorizing the City Manager, or designee, to execute an Interlocal Agreement with Nueces County and the Nueces County Water Control and Improvement District No. 3 in an amount not to exceed $25,000, to extend the water line on County Road 52. PURPOSE: The purpose of this Agenda Item is to execute the Interlocal Agreement with Nueces County and the Nueces County Water Control and Improvement District No. 3 to extend the water line on County Road 52. BACKGROUND AND FINDINGS: The proposed Interlocal Agreement provides for the City, along with Nueces County, to assist the District with its extension of a water line along CR52. The city limit line runs along the centerline of County Road 52, so that it sits halfway within the City's limits. The City, along with the County, would each contribute $25,000 to the District's project for the installation of the fire hydrants along CR52. The fire hydrants will provide needed fire protection infrastructure for use by areas within the city limits. ALTERNATIVES: • Do not provide authority to execute the Interlocal Agreement as recommended. K: \ENGINEERING DATAEXCHANGE \LYNDA \LEGISTAR \FY 13 \2 -FEB 12 \CR52 WATERLINE EXT \MEMO - CR 52 WATERLINE EXT.DOCX CONFORMITY TO CITY POLICY: The Interlocal Agreement is authorized by Chapter 791 of the Government Code and conforms to the City's policies and charter requirements for contracts. EMERGENCY /NON- EMERGENCY: Not applicable DEPARTMENTALCLEARANCES: Water Department FINANCIAL IMPACT: Not applicable Fiscal Year Project to Date 2011 -2012 Expenditures Current Year Future Years TOTALS (CIP only) Line Item Budget $0.00 $0.00 $0.00 Encumbered / $0.00 $0.00 Expended Amount This item $25,000.00 $25,000.00 BALANCE Fund(s): Water Comments: Not applicable. RECOMMENDATION: Passage of the resolution as proposed for authority to enter into the Interlocal Agreement. LIST OF SUPPORTING DOCUMENTS: Location Map Resolution Agreement K: \ENGINEERING DATAEXCHANGE \LYNDA \LEGISTAR \FY 13 \2 -FEB 12 \CR52 WATERLINE EXT \MEMO - CR 52 WATERLINE EXT.DOCX �o�auato COUNTY ROAD 52 WATER LINE EXTENSION INTERLOCAL AGREEMENT THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF NUECES § IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN MADE THE PARTIES AGREE AS FOLLOWS: Section 1. Parties. This agreement is made and entered into by and between Nueces County, Texas, hereinafter referred to as "County," the City of Corpus Christi, Texas, hereinafter referred to as "City," and the Nueces County Water Control and Improvement District No. 3, hereinafter referred to as "District." Section 2. Authority. This Agreement is made under the authority of Section 791.011 (a) Government Code. Section 3. Current Revenues. Each governing body, in performing governmental function or in paying for the performance of governmental functions hereunder, shall make that performance or those payments from current revenues legally available to that party. Section 4. Findings. Each governing body finds that the performance of this Agreement is in the best interests of all parties, that the undertaking will benefit the public, and that the division of responsibilities and costs fairly compensates the performing party for the services or functions of this Agreement. The provision of certain water line facilities and fire hydrants as set out herein will allow Emergency Services District #l, or any other governmental entity with fire prevention authority to aid City and County residents with fire prevention Section 5. Services to be Provided. (a) Fire protection in the portion of Nueces County not located within the city limits of the City is provided at this time by the Nueces County Emergency Services District No. 1. City, in conjunction with County, in the portion of Nueces County not located within the city limits of the City; desire to assist in the District's improvement of certain water line facilities adjacent to a public roadway located partially in the city limits of the City, as well as in the County. That portion located in the County is also located within the City's extra territorial jurisdiction. The City will provide financial assistance as described in Section 6 for the District to provide and install fire hydrants along a water line to be installed by the District to enable fire protection for the owners and occupants of lands lying contiguous to County Road 52 located within the City. The County will provide financial assistance as described in Section 6 for the District to provide and install fire hydrants along a water line to be installed by the District to enable fire protection for the owners and occupants of lands lying contiguous to County Road 52 and located within the County but outside the city limits of the City. (b) The District has been formed pursuant to the Article III, Section 52 of the Texas Constitution and has as one of its responsibilities the reclamation and irrigation of its arid, semiarid and other lands which need irrigation as well as to supply a fresh supply of potable water to the owners and occupants of lands lying contiguous to County Road 52 in Nueces County, Texas. The District does not have the facilities to provide a fresh supply of potable water to all of the owners or occupants of lands lying contiguous to County Road 52 at this time, but will install such facilities and lines as are necessary to connect the existing CR52 Waterl ine.12- 0924 - FINAL[ 11 Page 2 of 9 line of the District on County Road 69 in Nueces County, Texas to the existing line of the District on County Road 52, in Nueces County, Texas. (c) The City and County are in the process of completing the rebuilding of County Road 52 in Nueces County, Texas. As a part of this process the District provided to the City an easement along, over and across the irrigation canal owned and maintained by the District contiguous to County Road 52 to be utilized by the City to construct, improve and maintain County Road 52. (d) The City will provide the District an easement along, over and across the right- of -way of County Road 52 to be utilized by the District to provide a fresh supply of potable water to the owners of lands in the District contiguous to said County Road 52. (e) The District is solely responsible for providing the project plans, specifications, cost estimates and contract documents as well as advertising to solicit bids for the construction of the work contemplated by this Agreement. The District is solely responsible for contract administration during the construction and installation of the water line, with necessary fittings, including fire hydrants, and subsurface appurtenances incidental thereto, for the transportation of water for municipal and domestic purposes. (0 The District is not responsible for the construction or maintaining of any portion of County Road 52 in Nueces County, Texas. The District will maintain the improvements, including any fire hydrants, to be installed pursuant to this Agreement. (g) The parties intend that the City and County will convey to the District, and the District will accept, all of their respective interest to and in any of the improvements constructed or installed under this Agreement. Unless the City annexes the subject area beforehand, within one year of the date this Agreement becomes effective, the County shall CR52%lerline.12 -0924- FINAL[ I [ Page 3 of 9 convey to District, and the District shall accept, all of the County's right, title and interest to and in any improvements furnished, constructed or installed under this Agreement, including but not limited to any right, title or interest to and in the fire hydrants and appurtenances. Unless the City annexes the subject area beforehand, within one year of the date this Agreement becomes effective, the City shall convey to District, and the District shall accept, all of the City's right, title and interest to and in any improvements furnished, constructed or installed under this Agreement, including but not limited to any right, title or interest to and in the fire hydrants and appurtenances. (h) The District will ensure that the contract documents require the contractor to name the City of Corpus Christi and Nueces County as additional insureds on any policy of insurance provided by the contractor pursuant to the contract documents. The District will further ensure that contract documents require the contractor to indemnify and hold harmless the City of Corpus Christi and Nueces County of any claims, injuries, damages or loss of any kind arising out of or in connection with any work performed by the contractor. Section 6. Funding. The District agrees to be responsible for one -third (1 /3rd), the City agrees to be responsible for one -sixth (1 /6th) and the County agrees to be responsible for one -sixth (116th), except that in no event shall the City nor County pay an amount exceeding twenty -five thousand dollars ($25,000) each, of the costs associated with the construction and installation of the water line, with necessary fittings, including fire hydrants, and subsurface appurtenances incidental thereto, including, but not limited to engineering services to design and prepare construction plans, advertising, printing and miscellaneous expenses necessary for the construction and installation of the improvements to be installed pursuant to this Agreement ( "Project Funds "). The District shall be solely responsible for the balance of one- CR52 Waterline. 12 - 0924- FINALI I I Page 4 of 9 third (1 /3rd) of the funding for the costs associated with the construction and installation of the water line, with necessary fittings, including fire hydrants, and subsurface appurtenances incidental thereto. The District intends that the said one -third (1 /3rd) of the funding for the costs are to be paid by Donald J. Havelka of Robstown, Nueces County, Texas pursuant to a separate agreement entered into by and between the District and Don J. Havelka. The City and County will pay their pro -rata share of the costs of the project, not to exceed an amount of twenty-five thousand dollars ($25,000) each, within thirty (30) days from receipt of the District's detailed invoice for the funding provided for herein. The City and County shall have the right to review and audit the District's documents concerning the project expenses upon request. Section 7. Change Orders. Change orders will be reviewed by the District, County and City with the District giving final approval as a part of contract administration. All changes will be funded with Project Funds. Section 8. Term. The original term of this Agreement shall be one year. It is agreed by the parties that this Agreement shall automatically renew for additional one year periods for so long as the City and/or County shall own and maintain County Road 52 and the District shall own and maintain the improvements being installed pursuant to this agreement. Notwithstanding anything to the contrary contained herein, this Agreement as it applies to the County will expire at such time as the County sells, grants, conveys, assigns and dedicates to the District all of the County's right, title and interest in and to the lines, fire hydrants and necessary appurtenances provided by the County pursuant to this Agreement. Notwithstanding anything to the contrary contained herein, this Agreement as it applies to the City will expire at such time as the City sells, grants, conveys, assigns and dedicates to the CRRWaterline. 12- 0924- 1'INAL[ I] Page 5 of 9 District all of the City's right, title and interest, if any, in and to the lines, fire hydrants and necessary appurtenances installed under this Agreement or on the effective date of an ordinance passed by the Corpus Christi City Council for the City to annex the subject area. Section 9. Permits. The District is solely responsible for obtaining and maintaining any permits necessary or required to construct and install the water line, with necessary fittings, including fire hydrants, and subsurface appurtenances incidental thereto, for the transportation of water for municipal and domestic purposes. Section 10. City and/or County Control. All services provided under this Agreement by the City and/or County shall be at the sole direction and supervision of the City and/or County. Section 11. District Control. All services provided under this Agreement by the District shall be at the sole direction and supervision of the District. Section 12. Notice. Notice shall be delivered to the following address for the party notified: CITY OF CORPUS CHRISTI City Manager of City of Corpus Christi 1201 Leopard Street Corpus Christi, Texas 78401 NUECES COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO.3 District Manager 501 East Main Street Robstown, Texas 78380 NUECES COUNTY County Judge 901 Leopard, Room 303 Corpus Christi, Texas 78401 Section 13. Default. In the event of a default in any of the terms herein by the City, the County, or the District, the non defaulting party shall give a 10 day written notice advising the defaulting party of the default ( "default notice "), by certified mail, return receipt CR52 Waterline.12- 0924-FINALI 1 ] Page 6 of 9 requested. The defaulting party shall have 10 days from the date of the default notice to cure the event of default or this Agreement shall terminate. In the event the Agreement terminates the parties shall have no further obligation to the other party by reason of this Agreement. Section 14. Dispute Resolution. The parties hereto mutually contract and agree that each, every, any and all claims, disputes and/or controversies, now existing or hereafter arising, whether known or unknown, must first be attempted to be resolved as follows: (a) by attempting settlement by mediation, under the Mediation Rules and utilizing a neutral mediator. Each party shall pay its own costs of mediation. Section 15. Risk & Liability. The District assumes all financial risks and liability under this Agreement and hereby releases the City and County from the same. The District shall be solely liable for any financial loss for the design and construction of the improvements. The City and County assume no financial risks or liability under this Agreement. District shall be solely liable for constructing the improvements in compliance with all State, Federal and Local Laws and in full compliance with the terms of this Agreement. Under no circumstances may any communication, approval or denial of the City or County be interpreted by the District to constitute a waiver of this term so as to cause the City or the County to assume any financial risks or liability under this Agreement. This term survives termination of this Agreement. Section 16. Other Liability. Notwithstanding the foregoing the City, County and District agree that each party shall each be responsible for its own negligent acts or omissions or other tortious conduct in the course of performance of this Agreement, without waiving any sovereign governmental immunity available to either the City, the County or the District under Texas law and without waiving any available defenses under Texas law. Nothing in this CR52 Waterline. 12- 0924 - FINAL[ I I Pap 7 of 9 paragraph shall be construed to create or grant any rights, contractual or otherwise, in or to any third persons or entities. This term survives termination of this Agreement. Section 17. No Intent to Agee to Provide Services. In no event may this Agreement or any terms in this Agreement be construed as a promise by the City to provide fire, water, emergency, or any other utility services to the owners and occupants of lands lying contiguous to County Road 52 in Nueces County, Texas, or to any person or group of people in the extra territorial jurisdiction of the City, within Nueces County, or beyond. Section 18. No Intent to Benefit Third Parties. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto any rights, remedies, obligations or liabilities under or by reason of this Agreement. Section 19. No Waiver. The waiver of any provision in this Agreement will not be deemed to be a waiver of any other provision of this Agreement. No waiver of any provision of this Agreement will be deemed to constitute a continuing waiver unless expressly provided in writing. Section 20. Miscellaneous. (a) This Agreement expresses the entire agreement between the parties. (b) Any modification, amendment, or addition to this Agreement shall not be binding upon the parties unless reduced to writing and signed by the persons authorized to make such agreements on behalf of the respective party. CR52 Waterl inc.12- 0924FINALI I I Page 8 of 9 The Effective Date of this Agreement is the Armando Chapa, City Secretary C� ATTEST: day of October 2012. CITY OF CORPUS CHRISTI M Ronald Olson, City Manager By ,d,� 1,5x Sarnueflt,oyd'cal, Jr. 0/t U i�t' J County X e NUECES COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 3 By 11 Secretary rd, ist4 a 1� p 1p 4 rit Manager CK52Waterfine. 12-0924-FINAL[I I Page 9 of 9 Resolution authorizing the City Manager, or designee, to execute an Interlocal Agreement with Nueces County and the Nueces County Water Control and Improvement District No. 3 in an amount not to exceed $25,000, to extend the water line on County Road 52. 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 Interlocal Agreement with Nueces County and the Nueces County Water Control and Improvement District No. 3 in an amount not to exceed $25,000, to extend the water line on County Road 52. ATTEST Armando Chapa City Secretary resolution - cr 52 waterline ext THE CITY OF CORPUS CHRISTI Nelda Martinez Mayor Corpus Christi, Texas of , The above resolution was passed by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott resolution - cr 52 waterline ext \Mproject\ councilexhibits \ exh 64 71— 650 7d. dwg co �< QRIVER CANYON DR. �l N V TEAGGEIANE ��Q h Q °o CALALLEN o HIGH SCHOOL FM 624 r� NORTHWEST B0ULEVA/2D 0 Z cd J R/VER ROCK DR. O O N. h J O v COUNTYROAD 52 PROJECT #6471 SITE County Road 52 from County Road 69 to US 77 LOCATION MAP NOT TO SCALE PROJECT #6471 CITY COUNCIL EXHIBIT #6471 - County Road 52 from County Road 69 CITY OF CORPUS CHRISTI, TEXAS to US 77 (Bond 2008) DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 of 1 = _ 0 AGENDA MEMORANDUM First Reading for City Council Meeting of January 8, 2013 1852 Second Reading for City Council Meeting of February 15, 2013 DATE: December 27, 2012 TO: Ronald L. Olson, City Manager FROM: Fred Segundo, Director of Aviation FredS@cctexas.com (361) 289 -0171 ext. 1213 Authorizing the execution of a Ground Lease with FDL — CC, LLC to lease land from the City of Corpus Christi at the Corpus Christi International Airport for the development of a facility to be occupied initially by the Department of Homeland Security, the United States Coast Guard, and Customs and Border Protection. CAPTION: Authorizing the City Manager or designee to execute a Ground Lease with FDL — CC, LLC to lease land from the City of Corpus Christi at the Corpus Christi International Airport ( "Airport ") for the development of a facility to be occupied initially by the Department of Homeland Security, the United States Coast Guard, and Customs and Border Protection ( "Project "), to be located on land at the Airport, which Project will be subleased by FDL — CC, LLC to the General Services Administration ( "Government- Tenant "). PURPOSE: The purpose of this project is to consolidate the operations of the USCG that are currently divided between Naval Air Station (NAS) Corpus Christi and offices in Downtown Corpus Christi. BACKGROUND AND FINDINGS: The United States Coast Guard (USCG) Corpus Christi Sector currently occupies hangar space at NAS Corpus Christi, and office space at Tower II, 555 N. Carancahua, Corpus Christi, TX, under a lease, which expires November 30, 2015. Elements of Customs and Border Protection also currently occupy hangar space at NAS Corpus Christi. The USCG has submitted a request and justification to occupy space in a new USCG Sector Headquarters complex that will be constructed at Airport. The General Services Administration (GSA) is anticipated to propose a new lease of approximately 140,000 to 180,000 rentable square feet (rsf) of space and approximately 221 parking spaces for the Department of Homeland Security, USCG and Customs and Border Protection at the Airport. The proposed USCG Sector Headquarters complex is anticipated to be comprised of three structures: a two or three -story command and control building of approximately 40,000 to 58,000 rsf; a two -story hangar building of approximately 100,000 to 114,000 rsf; and a one -story ground support building of approximately 5,000 to 8,000 rsf. The current USCG hangar location at NAS Corpus Christi delays response times for both personnel and USCG aircraft operations. Response times are slowed by distance to personnel berthing areas and the need to stop traffic, open a gate, and cross a road in order to move aircraft from the hangar to the runway. The proximity of the current 60 -year old hangar facility to the seawall subjects their aircraft and the facility to excessive corrosion. The current facility's hangar deck space is insufficient to accommodate the anticipated new USCG aircraft. Without relocation to the new Sector complex the anticipated new aircraft would have to alternate staying outside in the corrosive environment adjacent to the seawall. The mission and operational readiness of USCG Corpus Christi Sector and their new aircraft will dependent on the construction and relocation to the new complex at the Airport. The Airport provides advantages in both maintenance and operation requirements. The Airport is located approximately eleven miles inland and will remove aircraft from the current excessive corrosive environment, significantly reducing aircraft maintenance costs. The proposed hangar /berthing arrangement at the Airport will reduce time for stand -by flight crews' and the hangar's proximity to runway will significantly improve aircraft operations. GSA will be negotiating an assignable ground lease that is anticipated to encompass 10 to 23 acres of land at the Airport. ALTERNATIVES: No viable alternative exists. OTHER CONSIDERATIONS: Pending release of GSA Request for Lease Proposal (RLP) CONFORMITY TO CITY POLICY: (Includes Master Plans, Financial Plans, Strategic Plans, Land Use Plans, IT Plans, etc.) EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: - Airport Advisory Board - Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: RECOMMENDATION: Staff requests approval of Ordinance. LIST OF SUPPORTING DOCUMENTS: Ordinance Ground Lease Page 1 of 2 Ordinance Authorizing the City Manager or designee to execute a Ground Lease with FDL — CC, LLC to lease land from the City of Corpus Christi at the Corpus Christi International Airport ( "Airport ") for the development of a facility to be occupied initially by the Department of Homeland Security, the United States Coast Guard, and Customs and Border Protection ( "Project "), to be located on land at the Airport, which Project will be subleased by FDL — CC, LLC to the General Services Administration ( "Government- Tenant "). Whereas, the City of Corpus Christi ( "City ") desires to enter into a Ground Lease ( "Lease ") with FDL — CC, LLC to lease land from the City at the Airport for the development, financing, and management of a facility approved by Resolution of the Committee on Transportation and Infrastructure of the U.S. House of Representatives to be occupied initially by the Department of Homeland Security, the United States Coast Guard, and Customs and Border Protection (Project), to be located on land at the Airport, which Project will be subleased by FDL — CC, LLC to the Government - Tenant; and Whereas, under the terms of the Lease, FDL — CC, LLC shall negotiate the terms, fund, design, construct, and provide ongoing management services for the Project; and Whereas, FDL — CC, LLC shall provide an annual payment to the City during the term of the Lease, which term shall be for twenty (20) years with four (4) additional five -year options; and Whereas, the annual payments to the City by FDL — CC, LLC shall include (i) the greater of $0.225 per square foot or $100,000 for years 1 — 20 of the Lease and appraised fair market value per square foot for optional years 21 — 40 of the Lease, and (ii) 51 % of the rent paid under FDL — CC, LLC's sublease to the Government - Tenant, subject to reimbursement of excess rentals from revenues; and Whereas, the facility at the Airport would revert to the City at the expiration of the Lease; and Now, therefore, be it resolved and ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. The City Manager or designee is hereby authorized to execute a Ground Lease with FDL — CC, LLC to lease land from the City at the Airport for the development of the Project. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of 7 , by the following vote: A I l Vs] I► /_1►[NMIbYKHIM_F9:iM 1.3V Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott Page 2 of 2 That the foregoing ordinance was read for the second time and passed finally on this the day of , by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal Chad Magill Colleen McIntyre Lillian Riojas Mark Scott David Loeb PASSED AND APPROVED, this the th day of ATTEST: Armando Chapa City Secretary ORDINANCE USCG LEASE 12 -18 -12 Nelda Martinez Mayor Coast Guard Project Term Sheet Corpus Christi City Council January 8, 2013 The City of Corpus Christi (City) desires to enter into a binding Ground Lease (with incorporated Development Agreement) ( "Lease ") with FDL — CC, LLC ( "Stonewater ") for the development, financing, and management of a United States Coast Guard (USCG) facility to be located on land at the Corpus Christi International Airport (CRP). Under the terms of the Lease, Stonewater shall negotiate the terms, fund, design, construct, and provide ongoing management services for a General Services Administration ( "GSA ") specified facility for the USCG at CRP. Stonewater would assume all financial and development risk on the project and provide an annual payment to the City during the term of the Agreement. The facility would revert to the City at the expiration of the Agreement with no further obligation to Stonewater. It is the desire of the City and Stonewater to reach agreement on the following basic business terms and to use these basic business terms as the foundation of the Lease. Per City Charter, the Lease would have an expected execution date of 60 days after its 2nd reading by City Council. Business Term Proposal 1. Contract Term 20 years, plus four - five (5) year (Lease, Section 3) options by Tenant. Adequate notice and joint marketing clauses provided. 2. Premises, Base Rent and USCG The site shall be comprised of Rental Payments approximately 7 -23 acres of (Lease, Section 4) undeveloped land at CRP which will be further defined once the GSA Request for Lease Proposal (RLP) has been issued. All Premises revert to the City at the end of the Term. City will be paid fair market value based on current land appraisal ( "Base Rent ") for the gross square footage included in the agreed -to site plan and paid annually to the City in the amount of: Page 1 of 6 USCG Term Sheet 12 -28 -12 (a) $0.225 ($) per square foot (for approximately 7 -23 acres) per annum for years 1 — 20 of the Lease. In no event will the annual payments be below $100,000, regardless of the defined land area (minimum Base Rent "). Note that, according to the current land appraisal, this represents a minimum 8% ROI on the land for the Base Rent. * 1 /4th of the initial Base Rent will be paid immediately upon Stonewater getting financing (Effective Date of Lease) and through the construction period, until USCG begins leasing. * Stonewater will be credited, pre - split, for the differential between the minimum Base Rent and actual rent if actual rent is less than the Base Rent based on actual acreage. *if the USCG ramp is significantly oversized and drives the total acreage to exceed expectations, we will credit Stonewater, pre - split, for the differential between anticipated maximum acreage and actual. (b) Effective upon the 1 st and 2nd renewal options (years 21 — 30) of the Lease the City will be paid a Base Rent of the then current fair market value as determined by appraisal. (c) Effective upon the 3rd and 4th renewal options (years 31 — 40) of the Lease the City will be paid a Base Rent of the then current Page 2 of 6 USCG Term Sheet 12 -28 -12 Page 3 of 6 USCG Term Sheet 12 -28 -12 market value as determined by appraisal. In addition to the Base Rent, the City will be paid 51% of the distributable tenant rent annually after debt service ( "Percentage Coast Guard Rent "). 3. Development and Financing Stonewater will serve as the ground (Lease, Section 4(b)(viii) and lessee and master developer for the Exhibit A, Section 2) project. Stonewater will be responsible for defining the scope of development in conjunction with GSA; the final budget and funding sources based upon a 20- year amortization of the financing; design and construction management; soliciting sources and providing financing; construction; and providing ongoing property management services in accordance with GSA program requirements. The parties agree that Stonewater will be granted the following fees: (a) Development Fee of 4% of eligible soft, hard and contingency (not financing or marketing) project costs; and (b) Government Consulting /Leasing and negotiation fee of a one -time fee of $2 per square foot of the rentable building square feet to GSA (estimated approximately $294,000 based on square footage estimates); and (c) Asset management fee of 1.25% of gross annual rents for term of Lease; and (d) Property management fee of 3% of gross annual rents per year. Page 3 of 6 USCG Term Sheet 12 -28 -12 Page 4of6 USCG Term Sheet 12 -28 -12 (Note that asset management and property management could be contracted with a 3rd party). In addition to the fees to Stonewater, Stonewater will be paid 49% of the distributable tenant rent annually after debt service ( "Percentage Coast Guard Rent "). 4. Use of Premises The Land Lease /Development (Lease, Sections 1, 2 and 8) Agreement will require that the land identified in the Agreement is to be used exclusively for construction of the GSA - specified Coast Guard facility. 5. Development Delay Should the facility not be completed in (Lease, Section 4(a)(0) accordance with the timeframe contained in the Land Lease /Development Agreement, Stonewater will continue paying 1/4 of the ground rent until the facility is complete for GSA/USCG. *See #8 below: Completion and performance bond required. 6. Default (Lease, Section 18) or Ownership of all Improvements on the Bankruptcy (Lease, Section 31) Premises shall revert to City upon and Reversion (Lease, Exhibit A, termination of the Lease. In the event of Section 1(k)) uncured default by Stonewater (not cured by the Leasehold Mortgagor), or their failure to secure financing, the Lease would terminate. In the event of bankruptcy by Stonewater, Stonewater's lender would step into Stonewater's shoes only as to their leasehold interest — ownership of the Improvements would not transfer. Page 4of6 USCG Term Sheet 12 -28 -12 7. Capital Investment, Operating Stonewater will be fully responsible for Expenses and ongoing Property funding and completing all negotiations; Management design and development costs to comply (Lease, Sections 4(b)(viii), 5, and with the specifications; financing costs; Exhibit A) operating costs, private party taxes, soft costs of development; start-up costs; insurance; and all ongoing operating costs for the property management of the facility in accordance with the approved USCG program in conformance with the approved budget. Stonewater will provide ongoing property management services in accordance with the specification outlined by GSA in the GSA Lease. The City and Stonewater will annually develop and mutually approve the operating expense budget for the property. 8. Performance Bond Stonewater will provide a completion (Lease, Exhibit A, Section 1(d)) and performance bond upon execution of the Land Lease /Development Agreement in an amount sufficient to fully fund the project in accordance with the approved budget. 9. Sale or Transfer A Proceeds Fee to the City of 1.5% of (Lease, Section 13) the purchase price will be paid to the City in the event of a sale or transfer to an unrelated third party. IO.Maintenance Airport and Stonewater will perform (Lease, Section 10) scheduled facility inspections (in accordance with the GSA Lease and security standards /protocol) to determine maintenance and repairs that are required to meet the requirements of the USCG and to maximize the useful life of the facility. Stonewater will be Page 5 of 6 USCG Term Sheet 12 -28 -12 Page 6 of 6 USCG Term Sheet 12 -28 -12 responsible, as part of the property management function, to plan for, budget, and complete identified repairs and maintenance. 11.Buy Local For contracting and subcontracting (Lease, Exhibit A, Section 1(c)) required, outside the services provided directly by Stonewater employees, in order to complete the project as identified and to maintain the property under the ongoing property management requirements, Stonewater agrees to award a minimum of 80% of the value of the hard construction costs to qualified contractors residing in or maintaining an office within a 50 mile radius of Nueces County. In the event that Stonewater does not believe that sufficient qualified contractors are available at competitive rates, Stonewater may request an exemption in writing from the City identifying the reasons that Stonewater does not believe they can meet this goal. Page 6 of 6 USCG Term Sheet 12 -28 -12 GROUND LEASE THE STATE OF TEXAS § COUNTY OF NUECES § THIS GROUND LEASE ( "Lease ") is entered into on April 14, 2013, by and between the CITY OF CORPUS CHRISTI, a Texas home -rule municipal corporation, known herein as "Landlord," and FDL — CC, LLC, a Texas limited liability company, known herein as "Tenant." Landlord and Tenant are sometimes collectively referred to herein as the "Parties" and, in the singular, as a "Party." WITNESSETH: WHEREAS, Landlord is the owner of the Corpus Christi International Airport (the "Airport) located in Nueces County, State of Texas, the use and operation of which is governed by the Director of Aviation (the "Director "); WHEREAS, Tenant desires to lease a certain parcel of land at the Airport for the initial purpose of developing and subleasing to the General Services Administration (the "Government- Tenant") a three - building complex and related improvements more particularly described in Exhibit A attached hereto (the "DHS Facilities "), to be initially occupied by the Department of Homeland Security, the United States Coast Guard and Customs and Border Protection; WHEREAS, the Parties intend that the DHS Facilities will be developed and constructed by Tenant in accordance with the requirements of the sublease for the DHS Facilities to be entered into between Tenant and the Government - Tenant (the "Government Lease," attached hereto as Exhibit C ; and WHEREAS, subject to the terms and provisions hereinafter set forth, Landlord is willing to lease such parcel of land to Tenant and to grant specified rights and privileges in connection therewith. NOW, THEREFORE, for and in consideration of the premises and mutual covenants herein contained and other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, Landlord does hereby demise, lease, let and grant unto Tenant, and Tenant hereby rents, hires and takes from Landlord, the certain premises hereinafter specified, subject to the following terms, conditions and covenants: 1. PREMISES. The premises hereby demised consist of that certain approximately (---) acre tract of land situated on and comprising a portion of the Airport, such land being more specifically described or depicted on Exhibit B attached hereto and incorporated herein for all purposes (the "Premises "). The Premises are leased by Landlord to Tenant on an "AS IS," "WHERE IS" basis, with no obligation on the part of Landlord to provide or construct any improvements or alterations, except as expressly provided in this Lease. Landlord also grants and conveys to Tenant, for the use of Tenant, its Subtenants and their Stonewater USCG Facility Lease 1 -25 -13 Page I of 32 respective employees, agents, contractors, guests and invitees, in common with others, (i) an uninterrupted right of ingress and egress for pedestrian and vehicular traffic to /from the Premises from/to public roadways, (ii) an uninterrupted right of ingress and egress to /from the Premises from/to all airfield improvements related to the conduct of flight operations at the Airport, and (iii) the right to connect to the utilities and utility infrastructure currently situated at the Airport and to construct aircraft parking ramp(s) as shall be reasonably necessary in connection with the development and operation of the Premises from time to time. Other rights and benefits afforded Tenant, its Subtenants and their respective employees, agents, contractors, guests and invitees, with respect to the Airport are described in Section 23 hereof. For purposes of this Lease, (i) the term "Subtenant" shall mean the Government- Tenant and any other party to whom the Premises has been subleased by Tenant under the terms of an Approved Sublease; the term "Approved Sublease" shall mean any sublease agreement between Tenant and a third party for the sublease of the Premiscs which has been approved by Landlord in accordance with the terms of this Lease, including, without limitation, the Government Lease; and the term "Occupant" shall mean the actual party validly occupying the Premises pursuant to the terms of an Approved Sublease. 2. IMPROVEMENTS. During the term of this Lease, Tenant shall be permitted to develop and improve the Premises from time to time as it deems necessary for the use and enjoyment of the Premises for the purposes herein permitted (any such improvements constructed from time to time are sometimes referred to herein as "Improvements "). Tenant agrees that the Improvements to be initially constructed on the Premises shall be the DHS Facilities, together with all required aircraft parking ramp(s) and other improvements related thereto or otherwise required to be constructed under the terms of the Government Lease, all of which shall be constructed in accordance with and subject to the terms and provisions contained in Exhibit A. The initial term of this Lease shall begin on the date that Tenant closes on the financing obtained for the development of the DHS Facility, ' 2013 ( "Effective Date ") and shall end on the expiration of the twentieth (20'') year thereafter, plus so many days as shall be necessary to be coterminous with the initial twenty (20) year Government Lease, unless earlier terminated in accordance with the terms and conditions of this Lease. The Parties intend and agree that each shall have vested rights as of the Effective Date and, accordingly, each agree that this Lease shall be fully binding upon the Parties and shall be in full force and effect from and after the Effective Date. Provided this Lease has not been terminated pursuant to the provisions hereof, Tenant shall have the right, benefit and option to extend and renew the term of this Lease for up to four (4) renewal terms of five (5) years each upon written notice to Landlord of such renewal at least six (6) months prior to the expiration of the then current term; provided, however, if Tenant is then in negotiations with the Government- Tenant for the renewal or re -lease of the Government Lease, such renewal or re -lease notice to be provided by Tenant hereunder may be deferred until such time as the Government- Tenant elects to either renew, re -lease or terminate the Government Lease, and the then current tenn of this Lease shall be extended, on the same terms and conditions then applicable, until such date. Any extension or renewal of Sionewater USCG Facility Lease 1 -25 -13 Page 2 of 32 the term shall be subject to all of the terms and provisions of this Lease, and all such provisions shall continue in full force and effect. If Tenant fails to timely renew the term as provided herein, then all options with regard to subsequent extensions or renewals shall expire and be null and void. Any holding over of the Premises, or any portion thereof, by Tenant or its Subtenants, after the expiration or termination of this Lease shall be on a month -to -month tenancy at one hundred fifty percent (150 %) of then current gross monthly rent, and subject to surrender upon thirty (3 0) days' prior written notice. 4. RENT. Commencing on the Effective Date, Tenant shall pay Landlord the rent described below (collectively, the "Rent') a. Base Rent. During the term of this Lease (as the same may be extended from time to time), Tenant shall pay Landlord the rent amounts hereinafter described ( "Base Rent'): (i) From the Effective Date through and including the date on which the Government Lease commences (the "Government Lease Commencement Date "), Tenant shall pay Base Rent of $ per year, such sum representing the product of (a) $0.055 multiplied by (b) the aggregate land square feet contained within the boundary of the Premises. (ii) From and after the Government Lease Commencement Date and continuing through and including the last day of the initial term of this Lease, Tenant shall pay the greater of (a) the Base Rent of $ per year, such sum representing the product of (i) $0.225 multiplied by (ii) the aggregate land square feet contained within the boundary of the Premises, or (b) $100,000.00. In the event that the Base Rent described in clause (a) is less than the amount described in clause (b), then for purposes hereof, the positive difference between such amounts shall be referred to as the "Excess Rentals'; however, in the event that both (1) the land area contained within the boundary of the Premises exceeds thirteen (13) acres and (2) the size of the improved aircraft parking ramp required by the Government - Tenant exceeds forty percent (40 %) of the gross area of the Premises, then the positive difference between the Base Rent described in clause (a) and the Base Rent computed on the basis of thirteen (13) acres shall instead be referred to under this Lease as the "Excess Rentals." The Parties acknowledge and agree that Tenant shall be permitted to be reimbursed the Excess Rentals paid by Tenant hereunder from cash flow generated from the Premises. (iii) During each of the renewal terms (if and to the extent exercised), Base Rent shall be equal to the annual fair market rental value of the Premises (categorized as aeronautical improved land) as of the date immediately preceding the commencement of such renewal term, such value to be determined by an appraisal conducted by a qualified, reputable, third party appraiser reasonably selected by Landlord who shall hold a MAT designation and have not less than ten (10) years of experience in appraising fair market rental values of multiple aviation - related improvements located within the largest 100 metropolitan statistical areas (MSAs). The fair market rental value of the Premises (categorized as aeronautical improved land) shall be updated in such manner prior to the commencement of each renewal term, Stonewater USCG Facility Lease 1 -25 -13 Page 3 of 32 Base Rent shall be payable in monthly installments, in arrears, on or before the fifth (5 'h ) day of each and every month during the Term, and otherwise on the same terms and conditions set forth in the Government Lease. b. Percentage Rent. In addition to Base Rent, Tenant shall also pay to Landlord, on a quarterly basis, the percentage rent hereinafter described ( "Percentage Rent"). Percentage Rent shall be an amount equal to fifty -one percent (51 %) of Tenant's Net Profits (defined below), if any, which amount shall be paid within thirty (30) days after the end of each calendar quarter in which Tenant has Net Profits. Within ninety (90) days after the end of each calendar year during the term of this Lease, Tenant shall deliver to Landlord a statement, certified by an officer of Tenant (the "Annual Reconciliation "), reflecting the Net Profits for the preceding calendar year, together with Tenant's calculation of Percentage Rent payable to Landlord for such period and any amounts previously paid by Tenant as Percentage Rent during such period. Landlord shall have thirty (30) days after its receipt of an Annual Reconciliation to object to any matter reflected therein. If Landlord does not object in writing within such 30 -day period, Landlord shall be deemed to have approved such Annual Reconciliation and the matters therein contained. If, however, Landlord objects within such 30 -day period in writing to any matter contained within such statement, Landlord and Tenant agree to work together in good faith to resolve any such objections to the reasonable satisfaction of Landlord and Tenant. For purposes hereof, the following definitions shall apply: (i) "Net Profits" shall mean, with respect to the applicable period for which such determination is being made, an amount equal to the remainder arrived at by subtracting (A) the sum of Operating Expenses, Cash Flow Reimbursements, Excess Rental Reimbursements, Reserve Replenishment, Landlord- approved Capital Expenditures (but not Capital Expenditures that are to be paid from the Reserve Account or which are covered by insurance proceeds paid to Tenant) and debt service payments for such period from (B) Gross Revenues for such period. (ii) "Operating Expenses" shall mean, with respect to the applicable period for which such determination is being made, all direct cash expenditures made by Tenant during such period in connection with the operation and management of the Premises in the normal course of business (except to the extent that such expenditures are Capital Expenditures or non -cash items such as depreciation and amortization), including, without limitation, Permissible Management Fees. (iii) "Cash Flow Reinibursen:ents" shall mean, with respect to the applicable period for which such determination is being made, the sum of all Operating Expenses and Capital Expenditures (less any funds from the Reserve Account utilized for the payment thereof) paid by Tenant during the period(s) preceding such period that were in excess of any Gross Revenues for such preceding period. There shall be deducted from Cash Flow Reimbursements any amounts that have been previously reimbursed to Tenant during prior periods. (iv) "Excess Rental Reimbursements" shall mean, with respect to the applicable period for which such determination is being made, the sum of all Excess Rentals paid by Tenant to Landlord under the terms of this Lease. There shall be deducted from Excess Rental Stonewater USCG Facility Lease 1 -25 -I3 Page 4 of 32 Reimbursements any amounts that have been previously reimbursed to Tenant during prior periods. (v) "Reserve Account" shall mean a separately identified fund or account, initially funded by Tenant from Construction Financing (defined below) in the amount of One Hundred Thousand Dollars ($100,000), as may be replenished from time to time, to be used for major maintenance or emergency capital replacements. (vi) "Reserve Replenishment" shall mean, with respect to the applicable period for which such determination is being made, the amount necessary to either replenish or increase the Reserve Account during such period in accordance with the Annual Budget (defined below). (vii) "Capital Expenditures" shall mean, with respect to the applicable period for which such determination is being made, expenditures made by Tenant during such period in accordance with the Approved Budget that, for federal tax purposes, are not expensed but are capitalized. (viii) "Permissible Management Fees" shall mean, with respect to the applicable period for which such determination is being made, the fees paid during such period to Tenant (or its affiliates or other third parties designated by Tenant and reasonably approved in writing in advance by Landlord) in connection with the management of the Premises, such fees consisting of (a) an asset management fee equal to one and 25/100ths percent (1.25) of gross annual rents for the initial term and any renewal teens of this Lease (less the property management fee) derived from the subleasing of the Premises to Subtenants as called for in this Lease; and (b) a property management fee of three percent (3 %) of the gross annual rents (less the asset management fee) derived from the subleasing of the Premises to Subtenants as called for in this Lease; each of which fees shall be paid monthly no later than fifteen (15) days after the end of each month. (ix) "Gross Revenues" shall mean cash receipts from the operation of the Premises from all sources including, without limitation, (a) base rent, additional rent and other charges under the Government Lease and/or any other Approved Sublease into which Tenant may enter with a Subtenant, penalties, insurance proceeds as a result of a claim by Tenant against the Occupant, interest income, forfeited security deposits and other amounts payable or reimbursable to Tenant by Subtenants or other Occupants, (b) any payments in the nature of indemnification that are received by Tenant, and (c) net reductions in the Reserve Account that are not used for their intended purpose. C. Late Payments. If any payment required to be paid to Landlord hereunder is not received by Landlord on or before the due date therefor as delineated in this Lease, Tenant shall pay to Landlord interest of eighteen percent (18 %) per annum on the delinquent amount due to Landlord from the due date therefor until the date of payment. Payments due to Landlord shall be received by Landlord only on normal business days of Monday through Friday, and shall not be considered late if the due date falls on a weekend or a legal municipal holiday for the City of Corpus Christi, Texas, so long as payment is made the next business day. For the purposes of this section, the date payments are received by Landlord shall be the U.S. Postal Service cancellation date on the envelope transmitting the payment if paid by mail, the date the payment is posted to Landlord's bank account if paid by ACH payment, the date of receipt if Stonewater USCG Facility Lease 1 -25 -13 Page 5 of 32 delivered by a nationally recognized courier service, or the date such payment is received by an authorized representative of Landlord if the payment is hand delivered. 5. BUDGETING, REPORTING AND AUDIT. At least sixty (60) days prior to the anticipated Government Lease Commencement Date, and thereafter at least sixty (60) days prior to the commencement of each of Landlord's fiscal years during the term of this Lease (Landlord's fiscal year commencing on August 1 of each calendar year) {"Fiscal Year"), Tenant shall cause its asset manager to prepare and deliver to Landlord, in writing, an annual accounting of the Reserve Account and a proposed annual operating budget for the Premises for the upcoming Fiscal Year. Such budget shall set forth, on a monthly basis, Tenant's estimate of Gross Revenues for the upcoming Fiscal Year, together with a detailed summary of the estimated Operating Expenses, debt service, major maintenance, proposed Capital Expenditures, and Reserve Replenishment requirements for such year, and any other authorized expenses or reimbursements anticipated by Tenant. The Parties agree that the initial annual operating budget will include the initial pre - funding of the Reserve Account with the sum of One Hundred Thousand Dollars ($100,000) to be set aside for the payment of major maintenance or emergency capital replacements, which amount will be funded from the financing to be obtained by Tenant for the initial development and construction of the DHS Facilities and any Aviation - Related Infrastructure (as defined in Exhibit A) not funded by Federal funds ( "Construction Financing "). The portion of the budget pertaining to Capital Expenditures shall contain, inter alia, a breakdown of the items to be incurred pursuant to any approved plan or plans for any capital improvements proposed to be funded from the cash generated from the Premises or other sources. Landlord may, within thirty (30) days after its receipt thereof, approve or disapprove of any proposed budget in whole or in part, and if Landlord disapproves a part of any proposed budget and specifically approves the balance in writing, Tenant shall implement the approved portion. If Landlord does not respond to a proposed budget within such 30 -day period, Landlord shall be deemed to have approved such budget. Landlord's approval of a proposed budget shall not be unreasonably withheld or delayed (each budget so approved by Landlord and Tenant being referred to herein as the "Annual Budget'). In any case in which an entire budget is disapproved by Landlord, Tenant shall continue to operate and manage the Premises pursuant to the prior year's Annual Budget (excepting extraordinary expenses and Capital Expenditures, but permitting the payment of actual amounts incurred for taxes, insurance, debt service and utilities) until the Parties can agree upon an annual operating budget. If the Parties are unable to reach agreement with respect to a proposed budget after a period of thirty (30) days following Landlord's disapproval thereof, then either Parry may request to have the matter settled by mediation in Corpus Christi, Texas, by a mutually agreed to mediator. The mediator shall be selected by the Parties within ten (10) days following the initiation of mediation hereunder. It is the intent of the Parties that any mediation shall be concluded as quickly as reasonably practicable. Each Party shall bear its own costs incurred in connection with the mediation and shall share equally the fees and expenses of the mediator. Tenant also shall provide to Landlord, no later than thirty (30) days following the preceding calendar month, a monthly expense report prepared by Tenant's asset managers. Landlord, or its authorized representatives or accountants, at Landlord's sole expense subject to the limitations herein, shall have the right to conduct an audit or program review of all such books and Stonewater USCG Facility Lease 1 -25 -13 Page 6 of 32 records referenced in this Section 5 during the term hereof and for a period of one (1) year after the expiration or earlier termination of this Lease. In the event Landlord's audit and/or program review reflects that Tenant has overpaid Landlord, Landlord shall promptly reimburse Landlord for such overpayment. If such audit and/or program review reveals that Tenant has underpaid Landlord, Tenant shall promptly pay Landlord the amount of such underpayment. If such audit and/or program review reveals that Tenant has underpaid Landlord by more than three percent (3 %), Tenant shall promptly reimburse Landlord for the reasonable cost of such audit, not to exceed two thousand dollars ($2,000), in addition to the entire underpayment. The provisions of this paragraph shall survive the termination or expiration of this Lease. 5. APPOINTMENT OF AGENT. Landlord hereby appoints the Director, or its designee, as Landlord's agent to receive all rent, notices and correspondence and other documentation to be provided to Landlord under the terms of this Lease and to act as the point of contact and liaison for Landlord in all matters involving this Lease, the development and construction of the Improvements and the Government Lease and/or any other Approved Sublease into which Tenant may enter with a Subtenant. 7. CONTINGENCIES. Notwithstanding anything to the contrary herein, this Lease and Tenant's obligations hereunder shall be subject to and contingent on (i) Tenant being awarded the right to develop and construct on behalf of the Government - Tenant, and to lease to the Government- Tenant, the DHS Facilities on the Premises (the "Award); (ii) the Parties each approving the principal terms and conditions of the Award, including the required terms and provisions of the Government Lease; and (iii) Tenant and the Government - Tenant entering into the Government Lease for the lease of the Premises for the use and operation of the DHS Facilities to be constructed by Tenant. In the event any one of the foregoing conditions are not satisfied, for any reason or no reason, by April 31, 2014, Tenant may terminate this Lease upon fifteen (15) days' prior written notice to Landlord, whereupon the Parties shall have no further rights or obligations hereunder. Tenant agrees that it shall provide to Landlord a true, correct and complete copy of the executed Government Lease promptly after the full execution thereof. S. USE, COMPLIANCE WITH LAWS. a. Tenant shall, during the initial twenty (20) year term of this Lease, use the Premises solely for the construction and operation of the DHS Facilities, including all lawful uses associated therewith or otherwise necessary or desirable in connection therewith, and for any other lawful purpose. The Premises may be used for the parking of business- related automobiles, trucks, vans, trailers and similar vehicles, without payment of any additional fees to Landlord, provided all such parking comply with applicable Airport rules and regulations relative to such use. b. Not later than twenty -four (24) months prior to the end of the initial term and to the end of any renewal term of this Lease, Tenant shall initiate efforts to obtain the Government - Tenant's written agreement to renew the Government Lease, or enter into another lease, for the occupancy of the DHS Facilities for the next succeeding term of this Lease. If the Government - Tenant does not elect in writing to renew the Government Lease or to enter into a new lease for the next succeeding term within twelve Stonewater USCG Facility Lease 1 -25 -13 Page 7 of 32 (12) months after receiving Tenant's written request, or, after providing such commitment, thereafter revokes such commitment or otherwise fails to actually renew the Government Lease or enter into a new lease, then (i) Landlord and Tenant shall commenec jointly marketing the Premises for sublease to other parties for aviation- related purposes and (ii) Tenant shall be permitted to sublease the Premises to another party for aviation - related purposes, subject to Landlord's prior written approval, which approval shall not be unreasonably withheld, delayed or conditioned. Such joint marketing activities by Landlord and Tenant may be pursued during any ongoing negotiations Tenant may then be having with the Government - Tenant for the renewal of the Government Lease. C. Tenant covenants to promptly observe, comply with and execute, and shall cause any Occupant to promptly observe, comply with and execute (as and to the extent applicable to such Occupant), (i) the provisions of any and all present and future federal, state and municipal laws, ordinances, rules, regulations, requirements, environmental requirements, orders and directions applicable to the use and occupancy of the Premises; and (ii) all applicable Federal laws, rules, and regulations, including, without limitation, the Drug Free Workplace Act, the Violence in the Workplace Act, the Americans with Disabilities Act, and any other acts that the U.S. Congress passes that apply to the uses and operations at the Premises. During any period of Tenant's or any Subtenant's good faith challenge to any such laws, ordinances, rules, regulations, requirements, orders and directions in a court of competent jurisdiction shall not be deemed a breach of this Lease. d. Tenant acknowledges that the provisions of 49 CFR, Part 23, Disadvantaged Business Enterprises ( "DBE "), as said regulations may be amended, and such other similar regulations may be enacted, may be applicable to the activities of Tenant or any Subtenant under the terms of this Lease, unless exempted by said regulations, and Tenant hereby agrees to comply with the Federal Aviation Administration ("FAA ") and the U.S. Department of Transportation, in reference thereto. Tenant agrees to use good faith efforts to provide maximum opportunity for the consideration and use of DBEs in the contracting, subcontracting and purchasing activities associated with this Lease and to abide by all applicable provisions of the Airport's DBE Program and this Lease. e. Notwithstanding anything to the contrary herein, if, because of the specific use of the Premises for DHS Facilities, there are any Federal Iaws, rules or regulations applicable to such use ("Specific Use Laws ") which vary from or conflict with, either directly or indirectly, any other federal, state, county or municipal laws, rules or regulations (including, without limitation, those of the FAA or the Airport), such Specific Use Laws shall take precedent to such other laws, rules and regulations, and the observance of and compliance with such Specific Use Laws by Tenant and the Government - Tenant shall not constituted a default under this Lease. 9. TAXES. Tenant shall be responsible for any and all ad valorem taxes on Tenant's personal property and any Improvements at the Premises, or which may be incurred on Tenant's leasehold interest in the Premises; provided, however, the Parties specifically acknowledge and agree that any and all real property and fixtures, exclusive of Tenant's and any Occupant's Removables, installed or placed at the Premises (herein, the "Public Facilities ") shall constitute property held and used for public purposes and, as such, shall be tax - exempt to Tenant and its Subtenants; and, provided further, in the event Landlord or any other taxing authority with jurisdiction over the Premises or Tenant seeks to tax Tenant or its Stonewater USCG Facility Lease 1 -25 -13 Page 8 of 32 Subtenants for use or ownership of all or any portion of the Public Facilities, Landlord agrees to reasonably cooperate with Tenant in its efforts to negate such efforts and to take all actions as are reasonably necessary to ensure that Tenant and the leasehold estate hereby created are not burdened by taxes with respect to the Public Facilities. For purposes hereof, the term "Removables" shall mean all personal property, trade fixtures, machinery and equipment owned by a party and used in the operation of such party's business or services on the Premises. 10. REPAIRS AND MAINTENANCE. a. Tenant's Obligation s. Tenant, at its own expense, shall make, or cause to be made, any and all repairs, replacements and preventative major maintenance necessary to keep the Premises in good condition and safe repair (normal wear and tear excepted), including any and all repairs and replacements reasonably necessary to prevent and remedy failures of a structural nature; shall maintain all utilities and utilities connections and infrastructure on the Premises; shall provide janitor and cleaning services for the Premises from the supplier of services of its choice in accordance with the maintenance schedule required under the Government Lease; shall keep the interior and exterior of the Premises in a clean, attractive and sanitary condition at all times, normal wear and tear excepted; shall cause the landscaping on the Premises to be well maintained and kept in a neat and trimmed condition; and shall otherwise perform all other maintenance and repairs required under the terms of the Government Lease. All of the maintenance, repairs, finishing and replacements must be of quality at least equal to the original in materials and workmanship. Tenant, at its expense, shall obtain all licenses and permits required by reason of its maintenance, repairs, construction on, or use of the Premises. Tenant, at its sole expense without reimbursement from Landlord, shall be responsible for the repair of any and all damage caused to any property of Landlord occurring elsewhere on the Airport as the result of the willful or negligent acts or omissions of Tenant, its employees or agents, and not the result of acts or omissions of Landlord, its employees or agents. Tenant must arrange for the collection and lawful disposal of all trash and other refuse resulting from operations on the Premises in compliance with all applicable environmental laws, rules, and regulations; must provide and use suitable sealed fireproof receptacles approved by the Director for all trash and other refuse generated by the use of the Premises; must prohibit piling of boxes, barrels or other similar debris in or within view from a public area; must comply with all applicable laws and regulations relative to trash disposal; and must pay or cause to be paid the costs associated with trash removal and disposal. Tenant shall use commercially reasonable efforts to ensure that the Premises are maintained free of foreign object debris. Tenant must immediately correct, or cause to be corrected, any hazardous or potentially hazardous condition on the Premises promptly after becoming aware thereof, or immediately upon receipt of written notice thereof from the Director. At the Director's sole discretion following consultation with Tenant, the operations in the Premises, or affected portion of the Premises, may be restrained or stopped until the hazardous or potentially hazardous condition is removed or corrected. Subject to the provisions of Section 17 and/or Section 20, the Director may, at any time during Tenant's normal business hours and upon prior notice and accompanied by a representative of Tenant (unless an emergency exists), but subject to the reasonable security procedures or requirements described in the Government Lease ( "Security Requirements "), enter upon the Premises to determine if the Stonewater USCG Facility Lease 1 -25 -13 Page 9 of 32 maintenance requirements of this Lease, including but not limited to landscape maintenance, parking lot maintenance, structural and non - structural repairs, replacements, rebuilding or painting, are being complied with. The Director must notify Tenant in writing of any default. If the required maintenance, in the Director's notice to Tenant, is not commenced within fifteen (15) calendar days after receipt of such written notice, or is not diligently prosecuted to completion once commenced, the Landlord may enter upon the Premises and perform the subject maintenance, and Tenant agrees to reimburse Landlord for all direct expenses incurred in connection with such maintenance, plus a ten percent (10 %) administrative fee, due and payable within thirty (30) days after Tenant's receipt of an invoice therefor, together with copies of all supporting documentation. b. Landlord's Obligations. Notwithstanding any provision of this Lease to the contrary, Landlord agrees to (i) operate the Airport as a public airport during the term of this Lease, subject to the assurances given by City to the United States Government, and (ii) operate, maintain and keep in good repair the areas and facilities at the Airport for the public and Tenant. Landlord agrees to use reasonable efforts to keep the Airport free from obstructions and to do all things reasonably necessary for the safe, convenient and proper use of the Airport by those who are authorized to use the same. Subject to the terms and provisions set forth in Paragraph Le. of Exhibit A hereto, Landlord shall assist and reasonably cooperate with Tenant, at no cost to Landlord, in making available to the Premises property line all existing utilities located outside the boundary of the Premises and described or depicted on Exhibit A -2 attached hereto (collectively, the "Existing Utility Infrastructure "), it being understood and agreed that Tenant shall accept the Existing Utility Infrastructure in their current, existing locations, on an "AS IS," "WHERE IS" basis, with no obligation on the part of Landlord to provide or construct any utilities not described or depicted in Exhibit A -2. Tenant or its designee must pay in full all utility usage charges for water, gas, wastewater, electricity and other utilities supplied to the Premises during the term of this Lease as the charges become due and payable. 11. SIGNAGE. Tenant and its Subtenants may install on the Improvements and/or Premises signs or other corporate identification of its or their business, provided the same comply with applicable City ordinances and Airport policies. The size, type, design and location of such signs or other corporate identification shall be subject to the prior approval of the Director, which approval shall not be unreasonably withheld. 12. PERSONAL PROPERTY. Notwithstanding anything to the contrary herein, all Removables placed or installed in, on or under the Premises by Tenant, or by an Occupant, whether or not affixed to the realty, shall remain the property of Tenant, or such Occupant, and Tenant, or such Occupant, shall have the right to remove such property at any time during the term hercof, provided any damage caused to the Premises as a result of such removal is repaired by Tenant or such Occupant. Upon the expiration or earlier termination or expiration of this Lease, Landlord shall permit the Occupant to remove all Removables installed by such Occupant, so long as it removes same within the time period set forth in a written notice from Landlord to such Occupant, but in no event less than ten (10) business days after termination or expiration of the Lease. Landlord will require any damage to the Stonewater USCG Facility Lease 1-25-13 Page 10 of 32 Premises caused by such Occupant's removal of its property, normal wear and tear excepted, to be repaired at Tenant's sole expense, without reimbursement from Landlord. Such repairs must be made to the reasonable satisfaction of the Director. Any fuel storage facilities installed must be removed prior to vacating the Premises, regardless of circumstances, and all affected Premises completely remediated at the sole expense of Tenant, without reimbursement from Landlord; provided, however that Landlord can waive this requirement to remove fuel storage facilities upon tennination of the Lease, in which case Tenant will be responsible for all required remediation of all affected Premises, as more fully discussed in Section 22 herein, related to any fuel storage facilities that have been identified as of the date that Tenant vacates the Premises, Notwithstanding the foregoing, if the Occupant fails to remove its Removables within the required time frame, then the Director, may at its option, take title to the said personality and sell, lease or salvage the same, if and as permitted by law. The Director will provide the Occupant with a written itemized breakdown of the costs recaptured, if any, by the sale, lease or salvage of the property, and the balance due, which is expected to be paid by such Occupant upon receipt of said itemized breakdown. 13. ASSIGNMENT, SUBLETTING. Tenant shall not at any time assign or transfer this Lease and Tenant shall not sublet the Premises or any part thereof without the prior written approval of Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. It shall not be unreasonable for Landlord to withhold its consent to any proposed assignment or sublease if (i) Tenant is in default under this Lease beyond any applicable notice and cure periods, (ii) the creditworthiness, financial responsibility, nature of business or character of the proposed assignee or subtenant are not all reasonably satisfactory to Landlord, or (iii) in the reasonable judgment of Landlord, the proposed assignee or subtenant does not have the ability or experience to perform the obligations required under this Lease. The foregoing shall not exclude any other reasonable basis for Landlord to withhold its consent. It is a condition of this Lease that at all times the use of the Premises shall be related to aviation. Notwithstanding the preceding, Tenant is given the right to: 1) Pledge, mortgage, encumber, assign and/or hypothecate Tenant's interest in this Lease as collateral for Tenant's construction or permanent financing for any lmprovements installed or constructed at the Premises and any renewals and extensions thereof, and Landlord agrees, if requested by Tenant, to enter into a subordination, non - disturbance and attornment agreement (a "SNDA ") with Tenant's lender ( "Tenant's Lender ") in a form reasonably agreeable to the Parties and Tenant's Lender; 2) Assign its interest in this Lease to any entity which is controlled by Tenant (e.g., an entity of which Tenant owns more than fifty percent of the outstanding shares or equivalent of Tenant), which controls Tenant (e.g., a parent or subsidiary which owns more than fifty percent of the outstanding shares or equivalent of Tenant) or a financially solvent entity which is under common control with Tenant (i.e., a financially solvent entity which has a brother - sister or other affiliate relationship with Tenant) (any of the foregoing, herein an "Affiliate "); and 3) Sublease the Premises to the Government - Tenant, in which event Landlord agrees to enter into a non - disturbance and attoinment agreement (a "ADA ") with the Stonmater USCG Facility Lease 1 -25 -13 Page 11 of 32 Government - Tenant in a form reasonably acceptable to Landlord and the Government- Tenant providing that (i) the Government- Tenant's possession of the Premises shall not be affected or disturbed by any termination of this Lease or by Landlord in the exercise of any of its rights and remedies under this Lease and (ii) if Landlord should terminate this Lease or Tenant's right of possession thereunder, the Government - Tenant shall attorn to Landlord and Landlord shall be bound to the Government- Tenant under the terms of the Government Lease. No assignment or subletting by Tenant hereunder shall relieve Tenant of its obligations hereunder, unless expressly agreed to by Landlord. Each Approved Sublease shall be subject to and subordinate to the terms and provisions of this Lease; provided, however, Landlord agrees that, to the extent of any conflict between the terms of this Lease and the terms and provisions of the Government Lease, the terms and provisions of the Government Lease shall control and govern. In the event Tenant, with Landlord's consent, assigns or transfers this Lease in connection with the sale of its leasehold interest to a third party that is not an Affiliate, Tenant shall pay to Landlord a transfer fee equal to one and one -half percent (1.5 %) of the gross sale price received by Tenant in connection with such sale and assignment. 14. INSPECTION BY LANDLORD. Subject to compliance with any Security Requirements, Landlord and its authorized representatives shall have the right to inspect the Premises at any time during regular business hours -upon at Ieast twenty -four (24) hours written notice to Tenant; provided, however, in the event of an emergency, Landlord, at the expense of Tenant, may take such action on the Premises as may be reasonably required for the immediate protection of persons or property. 15. INSURANCE. a. Except as otherwise provided in subsection 15.h below, Tenant shall, and shall require any Subtenant to, obtain and maintain continuously in effect at all times during the tern of this Lease, at Tenant's and such Subtenant's sole expense, at least the minimum insurance stated on Exhibit A -3 attached hereto, as well as the following minimum insurance: Property and Casualty Insurance against loss or damage to the Improvements (including any Occupant's fixtures, equipment and personal property therein) due to fire, lightning and all other perils, including wind, included in standard extended coverage policies, including vandalism and malicious mischief, all in amounts of not less than ninety percent (90 %) of replacement value. Upon request by Landlord, such replacement value shall be determined by a qualified appraiser selected by Landlord and Tenant, a copy of whose findings shall be submitted to Landlord and Tenant, and thereafter, proper adjustment in the limits of insurance coverage shall be effected. Tenant's Lender shall be named as an additional insured and mortgagee loss payee. b. All insurance herein required shall apply as primary and not in excess of or contributing with other insurance which Tenant may carry. All policies shall name Landlord as an additional insured Slonewater USCG F'aciGry Lease 1 -25 -13 Page 12 of 32 or loss payee, as the case may be. Tenant's insurance policies as required by this Lease shall apply separately to Landlord as if separate policies had been issued to Tenant and Landlord. C. Tenant's Comprehensive General Liability policy shall protect Landlord against any and all liability created by reason of Tenant's conduct incident to use of the Airport, or resulting from any accident occurring on or about the roads, driveways or other public areas of the Airport, including the runways, taxiways and ramp by Tenant at the Airport. d. Tenant's insurance as required by this Lease shall not be subject to cancellation or material alteration until at least thirty (30) days written notice has been provided to Landlord. Tenant shall furnish to Landlord, annually, Certificates of Insurance evidencing that all of the herein stated requirements have been met. e. The amounts of all required policies shall not be deemed a limitation of Tenant's agreement to indemnify and hold barmless Landlord, and in the event Tenant or Landlord shall become liable in an amount in excess of the amount or amounts of such policies, then Tenant shall save Landlord harmless from the whole thereof, except in the event of gross negligence or willful misconduct of Landlord or a Landlord - Related Party (as hereinafter defined). The insurance specified by this Lease is only a minimum requirement; Tenant is encouraged to maintain reasonably obtainable Iiability insurance in amounts reasonably necessary to protect Tenant and Landlord from normal insurable liabilities that may be incurred by Tenant in its operation at the Airport. f. In the event such insurance as required by this Lease shall lapse, Landlord reserves the right to obtain such insurance, upon prior written notice to Tenant, at Tenant's expense. g. Tenant and Landlord understand and agree that the minimum limits of the insurance herein required may become inadequate, and Tenant agrees that it shall increase such minimum limits upon receipt of notice, in writing, from the Director. Notwithstanding the preceding, such increases, if any, shall be reasonable and commensurate with industry standards therefor. Such notices to change shall, in general, be issued with no more frequency than every five (5) years during the Lease term. h. Notwithstanding the foregoing to the contrary: i. If Tenant desires to demonstrate proof of any portion of the insurance required by this section through a Subtenant's insurance, Tenant may do so if the insurance is adequate to also provide protection for both Landlord and Tenant (and, if applicable, Tenant's Lender). ii. Tenant shall not be required to purchase and maintain aviation operations insurance (i.e., hangar keeper and/or aircraft and aviation liability insurance) unless Tenant (exclusive of its Subtenants) undertakes aviation operation activities for which aviation operations insurance is specifically required. iii. With respect to aviation operation activities undertaken by Tenant's Subtenants, insurance coverage therefor and indemnification relating thereto shall be provided on behalf of Landlord and Tenant (and, if applicable, Tenant's Lender) by Tenant's Subtenants and all such Stonewater USCG Facility Lease 1 -25 -13 Page 13 of 32 policies shall name both Landlord and Tenant (and, if applicable, Tenant's Lender) as additional insureds and cover all such operations on the Premises and Airport as required herein. 16. INDEMNITY. a. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN THIS LEASE, TENANT AGREES, AND AGREES TO REQUIRE ITS SUBTENANTS, CONTRACTORS AND SUBCONTRACTORS, TO INDEMNIFY AND HOLD HARMLESS LANDLORD, AND ITS ELECTED OFFICIALS, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS (EACH A "LANDLORD RELATED PARTY" AND, COLLECTIVELY, THE 11LA1VDLORD RELATED PARTIES ") FROM AND AGAINST ANY AND ALL LOSSES (AS HEREINAFTER DEFINED) ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CONSTRUCTION TO BE PERFORMED ON THE PREMISES, OR THE OCCUPANCY, OPERATION, MAINTENANCE, ENJOYMENT OR USE OF ANY OF THE PREMISES BY TENANT UNDER THIS LEASE AND ARISING FROM ANY CAUSE WHATSOEVER, EXCEPT AS MAY BE CAUSED BY (I) CONDITIONS WHICH EXISTED ON THE PREMISES OR AT THE AIRPORT, AS APPLICABLE, PRIOR TO THE EFFECTIVE DATE, AND (II) ANY MATTER FOR WHICH LANDLORD OR A SUBTENANT IS RESPONSIBLE PURSUANT TO THIS LEASE OR AN APPROVED SUBLEASE, AS APPLICABLE. IT IS FURTHER COVENANTED AND AGREED THAT SUCH INDEMNITY SHALL APPLY EVEN WHERE SUCH LOSSES AND /OR SUITS ARISE IN ANY PART FROM THE NEGLIGENCE OF ANY LANDLORD- RELATED PARTY UNDER THIS LEASE; PROVIDED, HOWEVER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH (A) SHALL APPLY ONLY WHEN THE NEGLIGENT ACT OF LANDLORD OR A LANDLORD - RELATED PARTY IS A CONTRIBUTORY CAUSE OF THE RESULTANT INJURY, DEATH OR DAMAGE, AND SHALL HAVE NO APPLICATION WHEN THE NEGLIGENT ACT OF ANY LANDLORD - RELATED PARTY IS THE SOLE CAUSE OF THE RESULTANT INJURY, DEATH OR DAMAGE, AND (B) SHALL IN NO EVENT BE APPLICABLE TO ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ANY LANDLORD - RELATED PARTY. b. The provisions of this Section lb shall survive expiration or earlier termination of this Lease. For the purposes of this Lease, (i) "Losses" means any and all damage, liability, claims, demands, costs, charges, expenses and causes of action, including all reasonable costs of defense thereof, including attorneys' fees, of whatsoever character which may be incurred or sustained by a party or which a party may be legally obligated to pay on account of loss or damage to property and loss thereof, and for bodily injury to, or death of, any persons (including the Landlord- Related Parties or Tenant - Related Parties as hereinafter defined, as applicable) arising out of or in any way connected with any construction to be performed on the Premises, or the occupancy, operation, maintenance, enjoyment or use of the Premises or Airport, as applicable, by Tenant or Landlord, as applicable, under this Lease and arising from any cause whatsoever, except as expressly limited or negated herein, and (ii) "Tenant- Related Parties" means the officers, directors, managers, members, employees, agents, representatives and contractors of Tenant. C. With respect to all indemnification obligations of either Party pursuant to this Lease, each Party agrees that, upon commencement of any action against it or demand for payment in respect of which indemnity may be sought pursuant to this Lease, it will promptly give written notice of the commencement or demand thereof, specifying in detail the nature and the basis for the action or demand StonewaterUSCG Facility Lease 1 -25 -13 Page 14 of 32 for payment to the party against whom indemnity shall be sought. Failure to give timely and proper notice shall reduce the obligations of the indemnifying party only to the extent such failure adversely impacts the indemnifying party. Such indemnifying party shall be entitled to participate at its own expense in the defense of such action or, if it so clects, to assume the defense of such action. In such event, such defense shall be conducted by counsel chosen by such indemnifying party and reasonably acceptable to the indemnified party, and the indemnified party shall bear the fees and expenses of any additional counsel retained by it, if the indemnifying party shall not elect to assume the defense of such action or claim, the indemnifying parry will reimburse the indemnified party for the reasonable fees and expenses of counsel retained by it and reasonably approved by the indemnifying party. In the event that the parties to any such action or claim, including impleaded parties, include both parties and either (i) the indemnifying party and indemnified party mutually agree, or (ii) representation of both the indemnifying party and the indemnified party by the same counsel is inappropriate under applicable standards of professional conduct due to actual or potentially differing interests between them, then the indemnifying party shall not have the right to assume the defense of such action or the prosecution of such claim on behalf of such indemnified party and shall reimburse the indemnified party for the reasonable and actual fees and expenses of counsel retained by the indemnified party. The indemnifying party shall not be liable with respect to any settlement made by the indemnified party without prior written consent by the indemnifying party to such settlement. The indemnifying party shall not enter into any settlement, other than a settlement which involves the payment of money only and for which the indemnified party is totally indemnified by the indemnifying party, without the prior written consent of the indemnified party. Each party agrees to cooperate with the other in any defense and make available all pertinent records, materials and information in its possession or control relating thereto as is reasonably requested by the other party. 17. RESTORATION OF DAMAGE OR DESTRUCTION. In case of any damage to or destruction of the Improvements and/or Premises, or any part thereof, Tenant will promptly give written notice thereof to Landlord, unless less than One Hundred Thousand Dollars ($100,000) is involved, in which case no notice is required, and at Tenant's expense, whether or not the insurance proceeds, if any, shall be sufficient for the purpose, Tenant will promptly commence and complete with due diligence the restoration, repair, replacement or rebuilding (hereinafter collectively referred to as "Restoration ") of the damaged Improvements and/or Premises as shall be required under the Government Lease, or, in any event, to as nearly as possible its value, conditions and character immediately prior to such damage or destruction; provided, Tenant's obligations hereunder are subject to the rights of Tenant's Lender pursuant to the SNDA, if any. In case of extreme damage to or destruction of the Improvements and/or Premises used and occupied by the Occupant, the Parties shall consult and mutually agree as to whether or not Restoration is economically feasible. If the Parties agree that Restoration is not economically feasible, the Parties can agree to terminate this Lease, provided that the Authorized Sublease can likewise be terminated or the then current Subtenant consents to such termination. Subject to the provisions of the SNDA, if any, all net proceeds of insurance (after deducting the costs of adjusting the loss) received by Landlord or by Tenant on account of such damage or destruction shall be paid to Tenant and Tenant shall use the same to pay for the cost of Restoration. Subject to the superior rights of Tenant's Lender as set forth in the SNDA, if any, any insurance proceeds held by Stonewater USCG Facility Lease t -25 -13 Page 15 of 32 Tenant upon the completion of such Restoration shall be applied to any sum then owed by Tenant to Landlord under this Lease and any balance remaining shall be apportioned evenly between Landlord and Tenant. Tenant shall continue to be liable for payment of the rent for the remainder of the term of the Lease unless Tenant obtains a new tenant acceptable to Landlord, or alternately, Tenant is no longer in possession and Landlord obtains a new tenant. 18. TERMINATION BY LANDLORD. Without limiting any other rights and remedies to which Landlord may be entitled by common law, statutory law or as elsewhere provided in this Lease, if Tenant shall fail to (a) pay rent or other charges under this Lease and such failure has continued for a period of ten (10) business days after Tenant's receipt of written notice thereof from Landlord; or (b) perform, keep and observe any of the other terms, covenants or conditions herein contained on the part of Tenant to be performed, kept or observed, and such failure has continued for a period of thirty (30) days after Tenant's receipt of written notice thereof from Landlord (or, if the cure of such failure cannot be reasonably completed within such 30 -day period, then Tenant shall have the period of time as shall be reasonable to cure such failure, provided that Tenant commences such sure within such 30 -day period and thereafter diligent prosecutes such cure to completion), then Landlord may, subject to the provisions of the next paragraph, terminate this Lease upon ten (10) business days' prior written notice at any time prior to cure or correction of any such condition or default, and the term hereby demised shall thereupon cease and expire at the end of such ten (10) business days in the same manner and to the same effect as if it were the expiration of the original term. Notwithstanding the rights of Landlord as specified in the preceding sentence, Landlord agrees to send Tenant's Lender copies of any such notices which it gives Tenant at the same time said notices are sent to Tenant, and, subject to the terms and provisions of any applicable SNDA, Tenant's Lender shall be entitled to cure any such defaults and shall be afforded all rights of Tenant which are provided for in the following paragraph. Notwithstanding any provision of this Lease to the contrary, no default in the performance of the terms, covenants or conditions of this Lease on the part of Tenant or Landlord shall be deemed to continue if and so long as Tenant or Landlord, as the case may be, shall be delayed in or prevented from remedying the same by (1) strikes or other labor disputes, (2) acts of God or the public enemy, (3) any order, directive or other interference by municipal, state, federal or other governmental official or agency, or (4) any other cause reasonably beyond the control of Landlord or Tenant (with the exception of monetary obligations of either party), as the case may be; but if and when the occurrence or condition which delayed or prevented the remedying of such default shall cease or be removed, it shall be the obligation of Landlord or Tenant, as the case may be, without further delay, to commence or continue the correction of such default. Upon termination of this Lease, Tenant shall have ten (10) business days within which to remove its property, or (subject to the terms of any applicable NDA) to allow the Occupant to remove its property, from the Premises, and, if Tenant fails to remove its property, or (subject to the terms of any Stonewater USCG Facility Lease 1 -25 -13 Page 16 of 32 applicable NDA) the Occupant fails to remove its property. Tenant or its Subtenant, as applicable, shall continue to pay rent on a per diem basis for the period which said property remains on the Premises. Notwithstanding anything herein to the contrary, if Tenant is in default of any term, provision, covenant or condition of this Lease, Landlord agrees that, before it exercises any right of termination hereunder, it shall give written notice to the Subtenant and Tenant's Lender in accordance with any NDA executed by Landlord and the Subtenant, and the Subtenant and/or Tenant's Lender shall have the right to cure Tenant's default as set forth in the NDA. 19. TERMINATION BY TENANT. Without limiting any other rights and remedies to which Tenant may be entitled by common law, statutory law, or as elsewhere provided in this Lease, Tenant shall have the right, subject to the foregoing provisions, upon written notice to Landlord (and upon written approval by Tenant's Lender, if applicable) to terminate this Lease upon the happening of one or more of the following events, if said event or events are then continuing: 1) The issuance by any court of competent jurisdiction or governmental authority of an injunction, order or decree (a) preventing or restraining the use of all or any substantial part of the Premises for the purposes intended hereby, (b) preventing or restraining the use of all or a part of the Airport for normal airport purposes, which may be used by Tenant and/or the Occupant and which is necessary for its or the Occupant's operations on the Airport, or (c) preventing Tenant and/or the Occupant from operating an aviation - related business or service and which injunction, order or decree remains in force for a period of at least sixty (60) consecutive days. 2) If Landlord defaults in any of the terms, covenants or conditions under this Lease and fails to cure the default or make substantial progress with regard thereto within sixty (60) days following receipt of written demand from Tenant to do so; provided, however, rather than terminate this Lease, Tenant may, at Tenant's election, elect to cure LandIord's default hereunder and, in such event, Landlord shall reimburse Tenant for all direct expenses incurred in connection with such curative action. 3) If all or a part of the Airport's infrastructure which is necessary to or required for the operation of Tenant's and/or the Occupant's business or service is damaged or destroyed such that Tenant or the Occupant cannot operate its business at the Premises and such damage or destruction is not rendered functional and operational within one hundred eighty (18 0) days after the occurrence thereof. 4) If, by reason of any action of Landlord, Tenant or the Occupant is unable to conduct business for a period of in excess of ninety (90) days in substantially the same manner or substantially to the same extent as prior to such action. 5) The lawful assumption by the United States Government, or any authorized agency thereof, of the operation, control, or use of the Airport, or any substantial part or parts thereof that substantially restricts the Occupant from operating for at least ninety (90) days. Stonewater USCG Facility Lease 1 -25 -13 Pagel 7 of 32 6) Landlord's permanent abandonment of the Premises at the Airport. 7) The Government- Tenant terminates the Government Lease, in accordance with the terms and conditions thereof, because of any casualty to or condemnation of the Premises or any portion thereof. 20. TAKINGS. In the event of a taking of either the fee or of an easement necessary to the operation of the entire Premises, this Lease shall terminate as of the effective date of such taking. No termination pursuant to this section, however caused, shall impair or limit Tenant's obligation to pay to Landlord the rent and other charges payable by Tenant under this Lease up to the date of termination. The term "taking" means a taking of all or part of the Improvements or any interest therein or right accruing thereto as the result of, or in lieu of, condemnation or eminent domain (provided, Landlord agrees to timely advise Tenant in writing of any contemplated and/or actual condemnation which may adversely affect Tenant's and the Occupant's business at the Premises and/or Airport and, to the extent such contemplated and/or actual condemnation is of the Premises, or of ingress and egress to and from the Premises or Airport, or of any taxiway or runway at the Airport, to keep Tenant informed of, and reasonably include Tenant in, any related negotiations and/or proceeding). In the event of a taking of the Premises other than a total taking, this Lease shall remain in full force and effect as to the portion of the Premises remaining immediately after such taking, without any abatement or reduction of rent payable hereunder except as hereinafter provided in this section, and Landlord shall promptly restore the facilities in such manner and to such extent as shall be reasonably sufficient and suitable for Tenant's use and occupancy as contemplated by this Lease, provided, however, that Landlord's obligations hereunder are subject to the provision of any SNDA and Landlord shall not be obliged to spend any sum or sums for restoration in excess of the amount of the award received by Landlord pursuant to provisions hereinafter set out in this section. In the event of a taking of the Premises other than a total taking, and if such substantial part of the Improvements shall be taken with the result, determined in the good faith judgment of Tenant, that (i) the portion of the Improvements remaining after such taking (even if restoration were made) is unsuitable for use and occupancy by Tenant and the Occupant or (ii) that the Subtenant shall be permitted to terminate the Approved Sublease, and in fact give notice of such termination, then, for the purposes of this Lease, such taking shall be deemed to be a total taking of the type hereinabove described in this section. If a taking occurs as described in the preceding sentence, and if Landlord disagrees with Tenant's judgment that the remaining portion of the facilities would be unsuitable for use and occupancy, this Lease shall not terminate as of the date of such taking (as hereinabove required by this section) and Tenant and Landlord may request to have the matter settled by mediation in Corpus Christi, Texas, by a mutually agreed to mediator. The mediator shall be selected by the Parties within ten (10) days following the initiation of mediation hereunder. It is the intent of the Parties that any mediation shall be concluded as quickly as reasonably practicable. Each Party shall bear its own costs incurred in connection with the mediation and shall share equally the fees and expenses of the mediator. Stonewater USCG Facility Lease 1 -25 -13 Page 18 of 32 In the event of a taking resulting in termination hereof under this section, subject to the provisions of the SNDA, if any, Tenant shall participate in the aggregate of all amounts awarded with respect to the taking, including any amounts awarded with respect to the termination of this Lease, in whole or in part, as follows: (1) There shall be first paid to Tenant an amount equal to the greater of the appraised value or book value of Tenant's leasehold interest, such appraised value to be determined by an appraisal conducted by a qualified, reputable, third party appraiser reasonably selected by Landlord who shall hold a MAI designation and have not less than ten (14) years of experience in appraising fair market rental values of aviation - related improvements. (2) All sums awarded to Tenant for moving expenses and the taking of Tenant's Removables shall be the property of Tenant. (3) Any excess shall be paid to Landlord. Subject to the provisions of the SNDA, if any, in the event of any partial taking, Tenant shall participate in aggregate of all amounts awarded with respect to the taking, including any amounts awarded with respect to partial termination of this Lease as follows: (x) There shall first be paid to Tenant an amount equal to the lesser of the appraised value or book value of that portion of Tenant's leasehold interest, which is taken (determined in accordance with clause (1) above). (y) All sums awarded to Tenant for moving expenses and taking of Tenant's Removables shall be the property of Tenant. (z) Any excess shall be paid to Landlord or to Tenant, as their interests may appear, for restoration of the facilities pursuant to Section 17 hereof. In the event of a taking other than a total taking, each monthly installment of rent hereunder shall be reduced, cominencing with the first rent payment date following the date of such taking, by an amount determined by multiplying the number of square feet of land taken by the prevailing rental rate. 21. NON- DISCRTMMATION AND AFFIRMATIVE ACTION. a. Tenant, for itself and as a requirement for any Subtenant subject thereto, their personal representatives, successors in interest, and assigns, as a part of the consideration hereof, covenants that: (1) no person on the grounds of race, creed, color, religion, sex, age, national origin, handicap, or political belief or affiliation will be excluded from participation in, denied the benefits of or otherwise be subjected to discrimination in the use of the Premises; (2) in the construction of any Improvements on, over, or under the Premises and the furnishing of services thereon, no person on the grounds of race, color, religion, sex, age, national origin, handicap, or political belief or affiliation will be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination; and (3) Tenant will cause, to the best of its ability, the Premises to be in compliance with all other requirements imposed by or pursuant to 14 CFR Part 152, Subpart E, Non - Discrimination in Aid Program and Title VI of the Civil Rights Act of 1964 and 49 C1 R, Subtitle A, Part 21, Nondiscrimination in Federally Assisted Programs of Stoncwater USCG Facility Lease 1-95-13 Page 19 of 32 the Department of Transportation, and as said Title and Regulations may be amended, and with other applicable state or federal laws or regulations, as amended. b. This Lease is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR Part 23. Tenant, for itself and as a requirement for any Subtenant, agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award of performance or any concession agreement, management contract or subcontract, purchase or Iease agreement, or other agreement covered by 49 CFR Part 23. C. If Tenant is found by a final verdict of a court of competent jurisdiction to have deliberately breached a non - discrimination covenant, or to have permitted any Subtenant to deliberately breach a non - discrimination covenant, Landlord may immediately enforce the remedies directed by the Court's decision, which may include Landlord's right to reenter the Premises, retake possession thereof and terminate the Lease. This provision is not effective until the procedures of Title 49, Code of Federal Regulations, Part 21 are completed, including exercise of any rights to appeal. d. Tenant shall cause to be implemented an affirmative action program as required by 14 CFR Part 152, Subpart E, to provide (i) that no person on the grounds of race, creed, color, religion, sex, age, national origin, handicap, or political belief or affiliation is excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E; (ii) that no person will be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by that Subpart; (iii) that third parties otherwise retained by Tenant or its designee shall provide similar assurances to Tenant or its designee to undertake affirmative action programs and to require assurances from their sub - organizations, as required by 14 CFR Part 152, Subpart E. Tenant or its designee, at no expense to Landlord, shall comply with any applicable requirements of the Americans with Disabilities (ADA) as it may be amended, with respect to the Premises. 22. ENVIRONMENTAL REQUIREMENTS. a. Tenant will observe, obey and adhere to, and will cause the Tenant - Related Parties to observe, obey, and adhere to, all environmental laws, rules, regulations, orders and permits applicable to the use of the Premises, including but not limited to, required National Pollutant Discharge EIimination System Permits and all applicable laws relating to the use, storage, generation, treatment, transportation, or disposal of hazardous or regulated substances. Except for the hazardous substances governed by and transported in full compliance with the transportation laws of the state or federal government, neither Tenant nor its designee shall knowingly use, store, generate, treat, transport, or dispose of any hazardous or regulated substances or waste on or near the Premises without the Director's prior written approval and without first obtaining all required permits and approvals from all authorities having jurisdiction over the operations conducted on the Premises. b. The foregoing provisions shall not prohibit the transportation to and from, and use, storage, maintenance and handling within, the Premises of substances customarily used in the operation of United States Coast Guard facilities, provided: (a) such substances shall be used only in quantities as are reasonably necessary for such permitted use of the Premises, strictly in accordance with applicable law and the manufacturers' instructions, (b) such substances shall not be disposed of, released or discharged on the Premises, and shall be transported to and from the Premises in compliance with all applicable laws, Stonewater USCG Facility Lease 1 -25 -13 Page 20 of 32 and (c) any such substances shall be completely, properly and lawfully removed from the Premises upon expiration or earlier termination of this Lease. C. During the Lease term, Landlord will observe, obey, and adhere to, and will cause the Landlord - Related Parties to observe, obey and adhere to, all environmental laws, rules, regulations, orders and permits applicable to Landlord's operations, processes, use and occupation of the Airport, and Landlord will refrain from any and all acts, uses or processes on or at the Airport which are not in full conformity with such environmental laws. d. Tenant shall assume no liability with respect to any pre- existing environmental conditions, and nothing in this Lease shall be deemed to be an assumption by Tenant of any liability relating to any pre - existing environmental conditions on the Premises or elsewhere. Tenant and Government - Tenant shall have the right, at its sole cost and expense, to perform a Phase I and a Phase lI environmental site assessment (an "ESA ") on the Premises prior to the date Tenant commences construction thereon, which assessment the Parties agree shall establish a baseline with respect to the existing environmental condition of the Premises. If the ESA reflects any environmental contamination that requires remediation or other treatment under applicable environmental laws, Landlord and Tenant may agree to perform, or cause to be performed, such remediation or other treatment as so required, in which case the cost of such remediation or other treatment shall be paid by Tenant as a cost of the initial development of the Premises. If, however, the Parties cannot reach agreement with respect to the performance of any necessary remediation or other treatment, then either Party may request to have the matter settled by mediation in Corpus Christi, Texas, by a mutually agreed to mediator. The mediator shall be selected by the Parties within ten (10) days following the initiation of mediation hereunder. It is the intent of the Parties that any mediation shall be concluded as quickly as reasonably practicable. Each Party shall bear its own costs incurred in connection with the mediation and shall share equally the fees and expenses of the mediator. If the Parties fail to resolve this issue at mediation, or if the Parties otherwise mutually agree not to proceed with such remediation, then Tenant may elect, in writing delivered to Landlord, to terminate this Lease without any further liability or obligation hereunder. e. If Tenant or its designee determines that a threat to the environment, including but not limited to a release, discharge, spill or deposit of a hazardous or regulated substance, has occurred or is occurring which affects or threatens to affect the Premises, or the persons, structures, equipment or other property thereon, Tenant or its designee must notify the Director immediately by oral report, in person or by telephone, which notification shall be promptly confirmed in writing to the Director as required by law or regulation. Tenant shall require any Subtenant to cooperate fully with the Director in promptly responding to, reporting, and remedying a threat to 'the environment, including, without limitation, a release or threat of release of hazardous or regulated substance into the drainage systems, soils, ground water, waters, or atmosphere, in accordance with applicable law or as authorized or approved by any federal, state, or local agency having authority over environmental matters. f. Tenant or the Occupant (or their respective designees) shall keep a readily accessible file of Materials Safety Data Sheets ("MSDS ") for each Hazardous Substance on site or transported, in accordance with federal and state transportation laws, which file must be posted and immediately available to any Airport employee who responds to report of a discharge of a hazardous substance on the Premises. Tenant will require any operator of any building improvements or facilities on the Premises to StonewaterUSCG Facility Lease 1 -25 -13 Page 21 of 32 use good faith efforts to determine which hazardous substance was accidentally discharged and have that MSDS sheet available for the first responders to the Premises. g. Tenant shall cause prompt remediation and the payment of all costs (including fines) associated with any action or inaction of Tenant or its designee or Subtenant(s) that results in environmental contamination and/or directly or indirectly prevents the Airport from materially conforming to all then applicable environmental laws, rules, regulations, orders, or permits. The rights and obligations set forth in this subsection shall survive the earlier expiration or termination of this Lease. h. IN ADDITION TO THE ABOVE, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, (1) TENANT AGREES AND AGREES TO REQUIRE ITS SUBTENANTS, CONTRACTORS AND SUBCONTRACTORS TO INDEMNIFY LANDLORD AND THE LANDLORD - RELATED PARTIES FOR ALL EXPENSES INCURRED AND /OR LOSSES SUSTAINED, OR PENALTIES IMPOSED BY AGENCIES BY LAW AUTHORIZED TO DO SO, ARISING OUT OF THE FAILURE OF TENANT AND THE TENANT - RELATED PARTIES TO OBSERVE, OBEY, ADHERE TO, AND CONFORM TO APPLICABLE ENVIRONMENTAL LAWS AT OR ON THE PREMISES; AND, TO THE EXTENT ALLOWABLE BY LAW, LANDORD WILL INDEMNIFY AND HOLD TENANT AND THE TENANT - RELATED PARTIES ILkIZM ,ESS FROM ANY AND ALL LOSSES INCURRED BY TENANT OR A TENANT- RELATED PARTY ARISING DURING THE LEASE TERM FROM OR IN CONNECTION WITH (A) ANY PRE - EXISTING ENVIRONMENTAL CONDITIONS, (B) ENVIRONMENTAL CONTAMINATION CAUSED BY LANDLORD OR ANY LANDLORD - RELATED PARTY, (C) LANDLORD'S OR A LANDLORD - RELATED PARTY'S FAILURE TO COMPLY WITH ITS ENVIRONMENTAL OBLIGATIONS SET FORTH ABOVE, OR (D) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD, ITS PREDECESSOR IN TITLE AND LANDLORD - RELATED PARTIES. THIS PROVISION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE. 23. ACCESS TO AND USE OF AIRPORT. a. Right to Use Airport. Tenant and the Occupant shall have the right to use the Airport and its facilities in common with others authorized to do so, such use being subject to any and all applicable laws and the Rules and Regulations (defined below), including any limitations, restrictions or prohibitions affecting the aviation activities or operations of Tenant or the Occupant. The Occupant shall not be required to pay any landing fees to Landlord.. Tenant agrees to reasonably cooperate with Landlord and Occupant to facilitate any agreements, if any, needed for Occupant to operate at the Airport. b. Access to Aircraft Operations Area. Tenant and the Occupant shall have reasonable access to the Airport's Aircraft Operations Area ( "AOA "), provided such access is obtained in accordance with all applicable FAA and Airport security procedures. Movement of all aircraft and persons from the Premises into the AOA and from the AOA into the Premises shall be cleared in accordance with Airport and FAA rules and regulations. Tenant, or its Subtenants, shall be primarily responsible for the opening and closing of any security gates and/or doors permitting access to the Premises from the AOA. Stonewater USCG Facility Lease 1 -25 -13 Page 22 of 32 C. Vehicle Operations Within the AO_A. No vehicles owned or operated by Tenant or the Occupant will be allowed to operate within the Movement or Non - Movement Areas of the AOA except in accordance with the regulations of the FAA and the Airport. d. Airport Certification Rules and Regulations: Tenant and the Occupant shall comply with such rules that pertain to its operation on the Airport under the Airport Certification Rules of the Federal Aviation Regulations, Part 139, as amended 14 CFR Part 139, as amended. e. Airport Security Rules and Regulations: Tenant and the Tenant - Related Parties shall comply with all federal and local Airport security regulations adopted by the Landlord pursuant to 14 C.F.R. Part 107, or subsequent federal security regulations, as such rules and regulations exist or may hereafter be amended. TENANT AGREES TO INDEMNIFY AND HOLD HARMLESS LANDLORD, ITS OFFICERS AND EMPLOYEES, FROM ANY CHARGES, FINES OR PENALTIES THAT MAY BE ASSESSED OR LEVIED BY THE FAA OR THE TRANSPORTATION SECURITY ADMINISTRATION, BY REASON OF THE NEGLIGENT OR INTENTIONAL FAILURE OF TENANT OR ITS SUBTENANTS OR A TENANT - RELATED PARTY TO COMPLY WITH SUCH AIRPORT SECURITY REGULATIONS, REGARDLESS OF WHETHER THE FINE, CHARGE OR PENALTY IS LEVIED AGAINST LANDLORD, TENANT OR ITS DESIGNEE. f. 14 C.F.R. Part 77 Requirements: Tenant agrees to comply with the notification and review requirements set forth in Part 77 of the Federal Aviation Regulations, 14 CFR Part 77, in the event any future structure, antenna or building is planned for the Premises, or in the event of any planned modification of any present or future building, antenna or structure located on the Premises. g. Control of Structures: Tenant shall not erect or permit the erection of any structure or object, or permit the growth of any tree on the Premises which highest point is above a mean sea level elevation established by the FAA and Landlord as a height limitation on such structures or objects. Following Landlord's written notice to Tenant provided in accordance with this Lease, Landlord reserves the right to enter upon the Premises and to remove the offending structure or object and cut the offending tree at Tenant's expense, plus an administrative charge of fifteen percent (15 %). h. Aerial Approaches: Landlord reserves the right, for itself and the Director, to take any action it considers necessary to protect the aerial approaches of the Airport against obstruction, including the right to prevent Tenant from erecting or permitting to be erected any building or other structures on or adjacent to the Airport which, in the reasonable judgment of the Director, would limit the usefulness of the Airport or constitute a hazard to aircraft. i. Right to Overflight: Subject to any applicable Security Requirements, there is hereby reserved to Landlord, for the use and benefit of the public, a right of flight for the passage of aircraft above the surface of the Premises, together with the right to cause in said airspace such noise as may be inherent in the operation of aircraft, now known or hereafter used for navigation of or flight in the air, using said airspace for landing at, taking off from or operating on the Airport. j. Conflicts with Specific Use Laws. The Parties acknowledge that there may be some Specific Use Laws that are contrary to or conflict with the laws, rules and regulations described in this Section 23. In such event, unless Federal law specifically addresses the manner in which such conflict Stonewater USCG Facility Lease 1 -25 -13 Page 23 of 32 shall be resolved, Landlord agrees that, while the Government- Tenant is a Subtenant of the Premises, such Specific Use Laws shall take precedent to such other laws, rules and regulations and the Government - Tenant shall be required to first comply with the Specific Use Laws applicable to its use and operation of the Premises, and then to all other Federal, state and municipal laws, rules and regulations to the extent not in conflict with the Specific Use Laws. 24. QUIET ENJOYMENT. Landlord covenants that it has the authority to execute this Lease, that at commencement of the Lease, Landlord has good title to the Premises and that throughout the term hereof, subject to the payment of rent and other charges herein provided and the performance of the covenants and agreements to be performed by Tenant, its successors and assigns, or its Subtenants, Tenant shall have and peaceably enjoy the Premises and the rights and facilities herein granted and to the extent herein granted. Landlord agrees to remedy any violation of quiet enjoyment caused by Landlord or one of the other tenants of the Airport and to honor Tenant's tenancy for the term of the Lease. 25. OTHER FEES AND CHARGES. Landlord agrees that no charges, fees or tolls except those expressly provided for, or except those provided for in the Rules and Regulations for conduct of the Airport, should be assessed by Landlord against Tenant, its successors and assigns, or its Subtenants, for the purpose of entering or leaving the Airport, or for other privileges granted to Tenant in accordance with the provisions of this Lease. 26. REPAIR OR DAMAGE. Tenant shall, at its sole expense without reimbursement from Landlord, repair any damage caused to real or personal property of Landlord, wherever situated on the Airport, by the careless or negligent acts or omissions of a Tenant- Related Party while acting in the regular course of Tenant's business, or shall, at the option of Landlord, reimburse Landlord for the cost of repairs and replacements, accomplished by Landlord. 27. SURRENDER OF PREMISES. Subject to the terms hereof regarding Tenant's and the Occupant's Removables, upon the expiration or termination of this Lease, Tenant shall deliver the Premises to Landlord peaceably, quietly and in as good condition as the same now are or may be hereafter improved by Tenant or the Subtenant or Landlord, normal use and wear thereof excepted. 28. RULES AND REGULATIONS. Tenant agrees to observe and obey all rules and regulations promulgated from time to time by the Director governing the safe conduct and efficient operation of the Airport and its facilities (the "Rules and Regulations "), except that Landlord agrees that any such Rules and Regulations promulgated shall not be inconsistent with this Lease or any legally authorized rule or regulation of the FAA, or subsequent authoritative agency, and Landlord shall provide Tenant thirty (30) calendar days prior written notice of Stonewater USCG Facility Lease 1 -25 -13 Page 24 of 32 any amendments of the Rules and Regulations. A current copy of the Rules and Regulations will be kept at all tunes on File in the Director's office. 29. THIlM PARTY BENEFICIARY. Landlord and Tenant acknowledge and agree that Tenant's Lender will provide funds to construct the initial Improvements on the Premises and, due to this fact and in exchange for other good and valuable considerations, Landlord and Tenant agree that Tenant's Lender, its successors and assigns, is a third party beneficiary for purposes of all provisions of this Lease which benefit Tenant's Lender and, as such, Tenant's Lender has the right to enforce such provisions. Furthermore, Landlord and Tenant acknowledge, consent and agree that Tenant will be executing loan documents which assign in trust Tenant's interest in this Lease and that upon the foreclosure of said rights, if such a foreclosure should occur (or in the event of a deed in lieu of foreclosure or other similar proceeding), the purchaser at said foreclosure sale (or grantee in a deed in lieu of foreclosure or otherwise) shall, subject to the terms of the SNDA, acquire Tenant's rights and obligations under this Lease. 30. NOTICE TO THE PARTIES. Notices are sufficient if in writing and sent by certified mail, return receipt requested, postage prepaid, or by overnight delivery service with proof of delivery, or by facsimile (followed by written notice confirmed by mail or other delivery service, as addressed below: If to Landlord: City of Corpus Christi Attn.: City Manager P.O. Box 9277 Corpus Christi, Texas 78469 -9277 Ph: (361) 826 -3220 Facsimile: (361) 826 -3839 with a copy to: City Attorney P.O. Box 9277 Corpus Christi, Texas 78469 -9277 Ph: (361) 826 -3360 Facsimile: (361) 826 -3239 with a copy to: Director of Aviation Corpus Christi International Airport 1000 International Corpus Christi, Texas 78406 Ph: (361) 289 -0171 Facsimile: (361) 826 -4434 Stonewater USCG Facility Lease 1 -25 -13 Page 25 of 32 If to Tenant: FDL — CC, LLC c/o FD Stonewater 1001 19'h Street, Suite 930 Arlington, Virginia 22209 Attn.: Claiborne Williams Ph: (703) 537 -7653 with a copy to: Raymond J. Br nimble Lynxs Group LLC 106 E. 60' Street, Suite 550 Austin, Texas 78701 Ph: (512) 539 -2205 Facsimile: (512) 539 -2211 with a copy to: Leasehold Mortgagee Ph: (_ ) Facsimile: (_ ) or at such other address as Landlord or Tenant may designate in writing. 31. LEASEHOLD MORTGAGE. As used herein, "Leasehold Mortgage" means the mortgage, deed of trust or other indenture creating a lien on Tenant's leasehold interest in this Lease given by Tenant to Leasehold Mortgagee to secure repayment of funds advanced or to be advanced by a Leasehold Mortgagee to Tenant to construct the Improvements. As used herein, "Leasehold Mortgagee" means Tenant's Lender and any other mortgagee or beneficiary under the Leasehold Mortgage. Subject to the conditions set forth herein, Tenant shall be permitted to encumber its leasehold interest created hereunder with a Leasehold Mortgage, solely for the purpose of (1) obtaining the Construction Financing, together with any additional financing required for any additional construction or alterations made subsequent to the initial construction, or (2) refinancing the Construction Financing; provided, however, that with respect to the financing described in clause (2) above, the principal amount of any loan secured by a Leasehold Mortgage must not be greater than the original principal amount of the Construction Financing, including any financing for additional construction or alterations made subsequent to the initial construction of the Improvements. Notwithstanding anything to the contrary herein, the Parties agree that any Leasehold Mortgage shall in no way affect or diminish Landlord's interest in the Premise or its rights under the Lease, nor relieve Tenant of any of its obligations hereunder, and in no event shall Landlord's interest in this Lease be subordinate to such Leasehold Mortgage. The making of any Leasehold Mortgage hereunder shall not be deemed to constitute an assignment or transfer of this Lease, nor will any Leasehold Mortgagee be deemed as assignee or transferee of this Lease. Stonewater USCG Facility Lease 1 -25 -13 Page 26 of 32 With respect to Leasehold Mortgages, the Parties agree as follows: 1) No Leasehold Mortgage shall be binding upon Landlord in the enforcement of its rights and remedies under this Lease unless and until a copy thereof has been delivered to the Director; 2) Landlord agrees to execute an estoppel certificate and any other similar documentation as may reasonably be required by a Leasehold Mortgagee so as to certify to the status of this Lease and to the performance of Tenant hereunder as of the date of said certification; 3) Tenant shall furnish the Director a written notice setting forth the name and address of any Leasehold Mortgagee; 4) If a Leasehold Mortgagee or a purchaser at foreclosure of the Leasehold Mortgage acquires Tenant's leasehold interest in the Premises by virtue of the default of Tenant under the Leasehold Mortgage or otherwise, this Lease will continue in full force and effect so long as Leasehold Mortgagee or the purchaser at foreclosure is not in default hereunder, including the obligation to timely pay rent. For the period of time during which Leasehold Mortgagee or any purchaser at foreclosure of a mortgage holds Tenant's leasehold interest in the Premises, the Leasehold Mortgagee or said purchaser shall be liable and fully bound by the provisions of this Lease. 5) Any notice from Landlord affecting the Premises shall be simultaneously delivered to Tenant and said Leasehold Mortgagee at its address provided by Tenant to Landlord, and no notice of default or termination of this Lease affecting the Premises given by Landlord shall be deemed legally effective until and unless like notice has been given by the Director to said Leasehold Mortgagee; 6) Any Leasehold Mortgagee entitled to notice hereunder shall have any and all rights of Tenant with respect to the curing of any default hereunder by Tenant; and 7) Tenant must provide any Leasehold Mortgagee with notice of any proposed modification. If Landlord elects to terminate this Lease for any material default by Tenant with respect to the Premises, the Leasehold Mortgagee that has become entitled to notice hereunder has, not only any and all rights of Tenant with respect to the curing of any default, but also the right to postpone and extend the specified termination date of the Lease {"Leasehold Mortgagee's Right to Postpone "), contained in any notice of termination by Landlord to Tenant ( "Termination Notice "), for a maximum of ninety (90) days, subject to the following conditions: 1) Leasehold Mortgagee must give the Director written notice of the exercise of Leasehold Mortgagee's Right to Postpone at least ten (10) days prior to the date of termination specified by the Director in the Termination Notice and simultaneously pay to Landlord all Stonewater USCG Facility Lease 1 -25 -13 Page 27 of 32 amounts required to cure all defaults then existing (as of the date of the exercise of Leasehold Mortgagee's Right to Postpone) which may be cured by the payment of a sum of money. 2) If Leasehold Mortgagee's Right to Postpone is exercised, Leasehold Mortgagee must pay any sums and charges which may be due and owing by Tenant and promptly undertake to cure, diligently prosecute, and as soon as reasonably possible, complete the cure of all defaults of Tenant with respect to the Premises which are susceptible to being cured by Leasehold Mortgagee. Leasehold Mortgagee's exercise of its Right to Postpone may extend the date for the termination of this Lease specified in the Termination Notice for a maximum of six (6) months. 3) If, before the date specified for the termination of this Lease as extended by a Leasehold Mortgagee's exercise of its Right to Postpone, Leasehold Mortgagee has performed and observed all of Tenant's covenants and conditions under the Lease with respect to the Premises and no further defaults with respect to the Premises have occurred which have not been timely cured, then all defaults under this Lease, with respect to the Premises, will be deemed to have been cured and the Ternlination Notice will be deemed to have been withdrawn. 4) Nothing herein may be deemed to impose any obligation on Landlord's part to deliver physical possession of the Premises to a Leasehold Mortgagee. 5) If more than one Leasehold Mortgagee seeks to exercise any of the rights provided for in this Section 31, the most senior lien holder is entitled, as against the others to exercise said rights. Should a dispute arise among Leasehold Mortgagees regarding the priority of lien, Leasehold Mortgagees must provide evidence substantiating the correct priority of the competing liens to the satisfaction of the City Attorney prior to taking any action with respect to exercising said lienholder rights. 32. SUBORDINATION TO U.S. GOVERN UNT/FAA REGULATIONS. Notwithstanding anything to the contrary herein, this Lease is subordinate to the provisions of any existing or future agreement between Airport and the United States of America relating to the operation or maintenance of the Airport, where the execution of said agreement(s) is required as a condition to the expenditure of federal funds for the development of the Airport. 33. RADIO ANTENNA. Subject to the Director's prior written approval as to height and location, which will not be unreasonably withheld, conditioned or delayed, Tenant or the Subtenant, as the case may be, may furnish and install at its own expense, a radio antenna either adjacent to the Improvements but within the Premiscs, or on the roof of the Improvements to be constructed on the Premises, subject to (a) any and all federal, state and local laws, ordinances, statutes, rules, regulations and orders applicable thereto; (b) Tenant's or the Subtenant's, as the case may be, obtaining any and all building and other permits, licenses and other approvals with respect thereto (unless otherwise exempt therefrom); (c) the antenna and building both must be structurally sound and not adversely affect the soundness of, or the condition of, the roof and/or other parts of such building improvements; and (d) any and all costs of maintaining and operating the same must be paid entirely by Tenant or its designee. Upon the expiration or earlier 5tonewater USCG Facility Lease 1 -25 -13 Page 28 of 32 termination of this Lease, Tenant shall cause the removal of the antenna(s) and the restoration of any damage to the building improvements and Premises caused by the installation and/or removal thereof. Tenant shall be responsible for all costs for the repair and maintenance of said installation of the antenna. 34. DELEGATION. Any obligations of Tenant required by this Lease may be delegated to the Subtenant by the terms of the Approved Sublease, or to any other designee of Tenant, provided that such delegation shall not relieve Tenant of its liability and responsibilities under this Lease. 35. TAX REPORTING. The Parties acknowledge and agree that, strictly for purposes of federal income tax reporting and in compliance with all applicable Federal tax laws, Tenant intends to report all income and expenses relative to this Lease and the operation of the Premises as though this Lease were a partnership. Tenant shall pay Tenant's share of income taxes out of Tenant's own funds. Landlord agrees that it shall not take any action or file any report or return that is inconsistent with such treatment and characterization, unless required by applicable law or if such treatment or characterization causes Landlord to be liable for any taxes or other liabilities for which it would otherwise not be liable. 36. ESTOPPE LS. Both Parties agree that at any time and from time to time at reasonable intervals, within ten (1 a) business days after written request by the other Party, said Party will execute, acknowledge and deliver to the designee designated by the other Party, a certificate in a form as may from time to time be provided, certifying to the extent true and correct the following, as well as any other provision reasonably requested by the other party: (a) that the Occupant has entered into occupancy of the Premises and the date of said entry if requested; (b) that this Lease is in full force and effect, and has not been assigned, modified, supplemented or amended in any way (or if there has been any assignment, modification, supplement or amendment, identifying the same); (c) that this Lease represents the entire agreement between Landlord and Tenant as to the subject matter hereof (or if there has been any assignment, modification, supplement or amendment, identifying the same); (d) the date of commencement and expiration of the term; (e) that all conditions under this Lease to be performed by Landlord, if any, have been satisfied (and if not, what conditions remain unperformed); (f) that to the knowledge of the signor of said writing, no default exists in the performance or observance of any covenant or condition in this Lease and there are no then existing defense or offsets against the enforcement of this Lease by Landlord, or, instead, specifying each default, defense or offset of which the signor may have knowledge; and (g) the amount of rent or other charges, if any, that has been paid in advance and the amount of security, if any, that has been deposited with Landlord. 37. LANDLORD'S LIEN. Landlord hereby waives any right to a statutory or contractual landlord's lien or similar lien on any Removables of Tenant or the Occupant. Landlord agrees, at the request of Tenant, to execute a waiver of any Landlord's or similar lien for the benefit of any present or future holder of a security interest in or lessor of any of trade fixtures or any other personal property of Tenant or the Occupant. Stonewater USCG Facility Lease 1 -25 -13 Page 29 of 32 Landlord acknowledges and agrees in the future to acknowledge (in a written form reasonably satisfactory to Tenant) to such persons and entities at such times and for such purposes as Tenant may reasonably request that Removables owned by Tenant are Tenant's property and not part of Improvements (regardless of whether or to what extent such Removables are affixed to the Improvements) or otherwise subject to the terms of this Lease. 38. FORCE MAJEURE. Neither Landlord nor Tenant will be deemed to be in breach of this Lease if either is prevented from performing any of its obligations hereunder by reason of Force Majeure. "Force Majeure" means any act that (a) materially and adversely affects the affected Party's ability to perform the relevant obligations under this Lease or delays such affected Party's ability to do so, (b) is beyond the reasonable control of the affected Party, (c) is not due to the affected Party's negligence or willful misconduct and (d) could not be avoided by the Party who suffers it by the exercise of commercially reasonable efforts (provided that such commercially reasonable efforts shall not require such Party to expend a material amount of money to avoid the act giving rise to a Force Majeure). Subject to the satisfaction of the conditions set forth in (a) through (d) above, Force Majeure shall include, but not be limited to,: (i) natural phenomena, such as storms, wind, floods, lightning and earthquakes; (ii) wars, civil disturbances, revolts, insurrections, terrorism, sabotage and threats of sabotage or terrorism; (iii) transportation disruption, whether by ocean, rail, land or air; (iv) strikes or other labor disputes that are not due to the breach of any labor agreement by the affected Party; (v) fires; and (vi) the unavailability of necessary and essential equipment and supplies; provided, however, that under no circumstances shall Force Majeure include any of the following events: (A) economic hardship; (B) changes in market condition; or (C) weather conditions which could be anticipated by experienced contractors operating at the relevant location and exercising commercially reasonable business judgment. 39. MISCELLANEOUS. a. Landlord expressly reserves all water, gas, oil and mineral rights in and under the soil beneath the Premises, but testing for and/or removal of any such gas, oil, or minerals shall be done in a manner so as not to materially disturb the Premises or disrupt the operation of the business being conducted thereon. b. If any provision of this Lease shall be to any extent held invalid or unenforceable, the remainder of this Lease shall not be deemed affected thereby. C. This Lease shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without resort to conflicts of laws principles. d. Any failure or neglect of Landlord or Tenant at any time to declare a forfeiture of this Lease for any breach or default whatsoever hereunder does not waive Landlord's or Tenants right thereafter to declare a forfeiture for like or other or succeeding breach or default C. Whenever a consent or approved is required, or a party is required to undertake any action hereunder, such consent, approval or action shall not be unreasonably withheld, conditioned or delayed. Stonewater USCG Facility Lease 1 -25 -13 Page 30 of 32 f. Whenever the parties are required to agree on the selection of a professional to be engaged by or on behalf of the parties, a party's selection shall be acceptable so long as such fin-n is a recognized firm with (or such individual has) all required licenses to conduct the subject business and meets other applicable industry standards. g. If either party fails to require the other to perform a tenn of this Lease, that failure does not prevent the party from later enforcing that term and all other terms. If either party waives the other's breach of a term, that waiver does not waive a later breach of this Lease. h. This Lease may be amended only by written instrument executed on behalf of Landlord and Tenant, and, if applicable, Tenant's Lender. i. This Lease shall be binding on and inure to the benefit of Landlord and Tenant and their respective permitted successors and assigns. i. Venue of any action brought under this Lease lies in Nueces County, Texas, exclusively, where the Lease was executed and will be performed, k. This Lease may be executed in any number of duplicate counterparts, each of which shall be deemed to be an original of this Lease for all purposes. 1. This Lease and the exhibits attached hereto set forth the entire agreement of the Parties with respect to lease of the Premises. No other agreements, assurances, conditions, covenants (express or implied), or other terms of any kind, exist between the parties regarding this Lease. [signature page follows] Stonewater USCG Facility Lease 1 -25 -13 Page 31 of 32 IN TESTIMONY WHERE-01:, the Parties have hereunto set their hands in duplicate effective as of the Effective Date. Attest: Armando Chapa City Secretary Date: EXHIBITS: LANDLORD: CITY OF CORPUS CHRISTI By: Ronald L. Olson City Manager Date: TENANT: FDL -CC, LLC, a Texas limited liability company By: Name: Urr,4`60r,%,e_ Lj "I i NON S Title: Manager Date: 1131 1 Exhibit A - Initial Development Provisions Exhibit A -I - GSA Request for Lease Proposal Exhibit A -2 - Utility Infrastructure Exhibit A -3 - Insurance Requirements Exhibit B - Premises Description Exhibit C - Government Lease Stonmaw USCG Facility Lease 1 -35. D Page 32 of 32 Exhibit A INITIAL DEVELOPMENT PROVISIONS These Initial Development Provisions are attached to and form a part of that certain Ground Lease dated April 14, 2013 (the "Lease "), by and between the City of Corpus Christi, a Texas home -rule municipal corporation (herein, "Landlord"), and FDL — CC, LLC, a Texas limited liability company (herein, "Developer "). All capitalized terms used in this exhibit, unless specifically defined herein, shall have the meanings ascribed to them in the Lease. 1. Development of Improvements a. Improvements. As of the date of this Lease, the DHS. Facilities are intended to be comprised of three structures: (i) a three -story command and control building of approximately 58,000 square feet; (ii) a two -story hangar building of approximately 114,000 square feet; and (iii) a one -story ground support building of approximately 8,000 square feet; all being more particularly described in the GSA Request for Lease Proposal attached hereto as Exhibit A -1. The DHS Facilities and all required ramps and improvements related thereto or otherwise required to be constructed under the terms of the Government Lease (collectively, "Initial Improvements "), shall be developed and constructed by Developer in accordance with and subject to the Government Lease and the terms and provisions of this Exhibit A. b. Plans and Specifications. Prior to constructing the Initial Improvements, Developer shall cause to be prepared, by competent and licensed architects and engineers of recognized standing, complete plans and specifications therefor, and such plans and specifications shall be submitted to the Director for approval, which approval shall not be unreasonably withheld. Developer may not make any substantial changes or alterations to said plans or specifications after initial approval by the Director without further written approval by the Director; provided, however, such approval shall not be required with respect to any changes or alterations made to the DHS Facilities at the request of the Government - Tenant, so long as such changes or alterations comply with all municipal fire, building and other applicable city, state and federal regulations and code requirements, including any landscaping or design requirements of the Airport and the terms and provisions of any required building permits (collectively, "Building Regulations "). All plans and specifications for any Initial Improvements, and all renovations, remodeling, refurbishing and construction upon the Premises, must comply with all applicable Building Regulations, unless otherwise exempt therefrom. Such plans and specifications are subject to final submission and permit review by Landlord, in the ordinary course of Landlord's business. Developer will coordinate design and construction with Landlord, and Landlord will promptly approve in writing all plans and design - related change orders through completion of the Initial Improvements; provided, however, if Landlord shall fail to approve or disapprove any such plans and specifications submitted by Developer hereunder within ten (10) business days after Landlord's receipt thereof, Landlord shall be deemed to have approved same. All construction, including workmanship and materials, must be of first -class quality. As used herein, the term "first -class quality" means of the same quality as materials used to construct other buildings used for the same or similar purposes already constructed on the Airport. Exhibit A, Page 1 of 6 C. Construction. After Landlord's approval (or deemed approval) of the plans and specifications for the Initial Improvements, Developer will enter into a construction contract with a reputable, licensed contractor, and will cause all such work reflected by such plans and specifications to be performed by such contractor. The Parties agree that Developer will use best efforts to award a minimum of eighty percent (80 %) of the value of the construction costs for the Initial Improvements to qualified parties, including but not limited to, architects, engineers, contractors, and consultants, available at competitive rates, located within a fifty (50) mile radius of Nueces County. In the event that Developer does not believe that sufficient qualified parties, including but not limited to, architects, engineers, contractors, and consultants, are available at competitive rates, then it may request an exemption in writing from Landlord identifying the reasons that Developer is unable to satisfy such goal. Landlord shall consider such request in good faith and shall provide its written response thereto with ten (10) business days after its receipt of such request. Developer must include in all construction contracts entered into for the construction of the Initial Improvements a provision requiring the contractor to indemnify, hold harmless, defend and insure the Parties, including their respective officers, agents and employees, against the risk of legal liability for death, injury or damage to persons or property, direct or consequential, arising or alleged to arise out of, or in connection with, the performance of any or all of the construction work, whether the claims and demands made are just or unjust, unless same are caused by the gross negligence or willful act of either of the Parties or their respective officers, agents or employees. Developer must also furnish, or require the contractor to furnish, insurance as required in Section 15 of the Lease. During such construction, Developer shall be responsible for causing the Premises to be kept in good order and condition in accordance with commercially reasonable standards. Developer will coordinate all construction traffic within the Airport boundaries with the Director so as to not inhibit regular airport traffic and to keep roadways safe and clean. All construction parking and staging will occur on the Premises unless agreed to by the Director in writing. Developer will also coordinate with Landlord and the FAA any construction activities that are reasonably anticipated to affect the operations of the Airport. During the progress of all work, the Director or another duly authorized representative of Landlord may enter upon the Premises and make such inspections as may be reasonably necessary for the purpose of satisfying Landlord that the work or construction is being performed in accordance with the terms and provisions of this Lease, provided that Landlord shall not unreasonably interfere with the progress of such work. Upon completion of the construction of any Initial Improvements and prior to the occupancy thereof by the Occupant, Developer shall provide a copy of the certificatc of occupancy (or its local equivalent) therefor to the Director. d. Bonding. Prior to the commencement of the construction of any Initial Improvements, Developer shall provide Landlord with a completion and performance bond in an amount sufficient to fully fund the construction of the Initial Improvements in accordance with the Government Lease. Exhibit A, Page 2 of 6 C. Utilities. Developer shall be responsible for arranging and paying for, at its sole cost, all utility connections necessary for utilizing the Premises and all utilities required under the plans and specifications for the Initial Improvements; provided, however, Landlord shall assist and reasonably cooperate with Tenant, at no cost to Landlord, in making available to the Premises property line the Existing Utility Infrastructure as described or depicted on Exhibit A -2 attached hereto, it being understood and agreed that Tenant shall accept the Existing Utility Infrastructure in their current, existing locations, on an "AS IS," "WTMRE IS" basis, with no obligation on the part of Landlord to provide or construct any utilities not described or depicted in Exhibit A -2. Utility usage will be billed directly to Developer and paid for by Developer unless and until Developer has delegated the responsibility for utility payments to the Government- Tenant. f. Aviation - Related Infrastructure. The Parties agree that Developer shall construct and install any required improvements as shall be necessary or desirable for the intended operation of the DHS Facilities (the "Aviation- Related Infrastructure ") as part of its construction of the Initial Improvements, such construction to be in accordance with plans and specifications therefor approved by the Parties. The Parties acknowledge that Federal funds may be available for all or part of the construction of the Aviation - Related Infrastructure, and the Parties agrees to work together in good faith to obtain such funding. g. Access. Landlord agrees to cooperate with Developer with respect to any roadway or access improvements required to enhance passenger vehicle traffic to the Premises, provided that the costs of any necessary modifications shall be the sole responsibility of Developer. h. Financing. The complete cost of developing all necessary plans and specifications as provided herein, obtaining all licenses and permits required prior for construction, and the construction of Initial Improvements upon and as a part of the Premises by Developer shall be borne solely by Developer and be at no expense to Landlord whatsoever; provided, however, Landlord agrees that, in connection with Developer's construction of the Initial Improvements, Landlord shall provide Developer the maximum waiver allowance permitted under applicable ordinances, rules and regulations of the City of Corpus Christi. Developer acknowledges that it shall be responsible for the payment of any and all cost overruns incurred in connection with the initial construction of the Initial Improvements. Landlord also agrees to cooperate with Developer in the pursuit of any and all available grant funding which might be available in connection with the construction of the Initial Improvements on the Premises or any portion thereof, and all such grant funds received will be credited in full to Developer. The pursuit of such funds will be conditioned upon the requested funds not being required to complete other projects contained in the Airport Capital Improvement Program, as may be amended from time to time. If the FAA or its successor requires modifications or changes to the Lease or this Exhibit A as a condition precedent to granting funds for improvements, the Parties agree to consent to the amendments, modifications or changes of the Lease or this Exhibit A as may be reasonably required to obtain the funds provided; provided, however, Tenant will not be required to pay increased rent, change the use of the Premises, modify or amend the Government Lease or accept a relocation or reduction in size of the Premises unless the Parties have fully executed an amendment to the Lease that is mutually satisfactory to all parties, including the Government- Tenant, for any terms or conditions of the Lease affected by said actions. Exhibit A, Page 3 of 6 Other than the grant funding described above, Developer shall be responsible for securing any Construction Financing. The terms and conditions of the Construction Financing shall be subject to the sole discretion of Developer, and Developer agrees that it shall not allow any lien to attach to the Premises or Tenant's leasehold interest, except as expressly permitted in the Lease. The Parties further agree that, to the extent that Developer realizes any cost savings in the construction of the Initial Improvements such that funds from the Construction Financing remain available for Developer's use, then, after payment of all expenses and Tenant's initial funding of the Reserve Account, if such excess funds are less than Five Hundred Thousand Dollars ($500,000), then (i) fifteen percent (15 1/o) of such excess funds shall be paid to Landlord and (ii) eighty -five percent (85 %) of such excess funds shall be paid to Developer. If such excess fiends exceed $500,000, then the amount of such excess exceeding $500,000 shall be paid into the Reserve Account. Not later than forty -five (45) days prior to the closing on the Construction Financing, Developer shall provide to Landlord the construction budget for the development and construction of the Initial Improvements and Landlord shall have twenty -one (21) days in which to provide any comments it may have with respect to any matters contained in such budget. The budget shall reflect all costs and expenses anticipated to be incurred in connection with the development and construction of the initial Improvements, including the Development Fee and Consulting Fee to be paid to Developer (as defined below). If Landlord provides comments to the budget, Landlord and Developer shall work together in good faith to address any comments that Landlord may have with respect to the construction budget, such that the budget shall be finalized and approved by Developer's construction lender ( "Developer's Lender ") within twenty (20) days after having been first provided to Landlord (once approved by Landlord, Developer and Developer's Lender, the "Construction Budget"). i. As -Built Plans. Upon final completion and acceptance by the Government- Tenant of the Initial Improvements, Developer and/or Developer's architect shall (i) certify to the Director that the Initial Improvements were completed according to the approved plans and specifications therefor and in compliance with all applicable Building Regulations and (ii) provide two (2) sets of Mylar "as- built" plans and one electronic copy of the record construction documents to the Director, who will keep one set of plans on file at the Director's office in the Airport terminal and will provide the other set to the City Secretary. Developer must keep said documents current, by providing to the Director two (2) sets of Mylar "as- built" plans and one electronic copy of all record construction documents showing any alteration in excess of $50,000 to the Initial Improvements during the term of this Lease. j. Alterations. During the term of this Lease, Tenant shall (subject to the other terms and conditions of this Lease) have the continuing right to remodel, renovate and refurbish the Initial Improvements situated from time to time on Premises, or any part thereof, and to build and construct new additions and improvements thereto and thereon; provided, however any changes each costing more than One Hundred Thousand Dollars ($100,000) shall require the prior written consent of the Director, whose consent shall not be unreasonably withheld, conditioned or delayed; provided further, that such consent shall not be required with regard to any alterations made to the DHS Facilities if requested by the Government- Tenant and such alterations comply with applicable Building Regulations, Exhibit A, Page 4 of 6 k. Ownersh i p of Im rovements. Upon the termination of this Lease, ownership of improvements at the Premises, exclusive of Tenant's and its Subtenants' Removables, shall fully vest in Landlord, free and clear of all liens, leases and other encumbrances and adverse interest on property and improvements. 1. Liens. Except as expressly permitted under Sections 13 and 31 of the Lease, Developer shall not allow a lien to attach to the Premises or Tenant's leasehold interest therein without the prior written approval of Landlord. Notwithstanding any such approval, Landlord's fee simple interest in the surface estate burdened by Tenant's leasehold estate and rent received from Subtenants must in all events be exempt from any such lien. Any lien of Developer's Lender (defined below) shall contain the following language, or such other similar language as may be approved by Landlord: "Lender agrees that the Iien created by this instrument is effective only as to Tenant's leasehold estate created by the Ground Lease dated , executed by the City of Corpus Christi, as Landlord, and FDL -CC, LLC, as Tenant, and does not affect Landlord's interest, being the fee simple estate burdened by Tenant's leasehold estate." In the event of any foreclosure by any lender, financing agency or guarantor of its lien or liens on the Initial Improvements constructed by Developer, said lender, financing agency or guarantor shall succeed hereunder to all rights, privileges and duties of Tenant, including, without limitation, paying all rentals called for under the Lease, as if said lender was originally named as the "Tenant" thereunder. 2. Permissible Development Fees In connection with the Government Lease and the development of the Initial Improvements and Premises, Developer shall be entitled to be paid (i) a development fee equal to four percent (4 %) of the soft and hard costs (exclusive of any financing fees, administrative fees and marketing fees) expended in the initial development of the Premises (the "Development Fee "), and (ii) a government consulting fee of two dollars ($2.00) per square foot of rentable building area subleased to the Government - Tenant under the Government Lease (the "Consulting Fee "). The Development Fee shall be included in the total Construction Financing and paid to Developer in monthly installments during the progression of the construction of the Initial Improvements and in accordance with the Construction Budget. The Consulting Fee shall be paid to Developer upon the closing of the Construction Financing. 3. Right to Amend If the Government - Tenant or its successor requires modifications or changes to the Lease or this Exhibit A as a condition precedent to granting or providing funds for the Initial Improvements, the Parties agree to consent to the amendments, modifications or changes of the Lease or this Exhibit A as may be reasonably required to obtain the funds provided, provided, however, Tenant will not be required to pay increased rent, change the use of the Premises, modify or amend the Government Lease or accept a relocation or reduction in size of the Premises unless the Parties have fully executed an amendment to the Lease that is mutually satisfactory to all parties, including the Government- Tenant, for any terms or conditions of the Lease affected by said actions. Exhibit A, Page 5 of 6 4. Signage Developer and the Government - Tenant may install on the Initial Improvements and/or Premises signs or other corporate identification of its or their business, provided the same comply with applicable City ordinances and Airport policies. The size, type, design and location of such signs or other corporate identification shall be subject to the prior approval of the Director, which approval shall not be unreasonably withheld. 5. Taxes and Licenses During the development of the Premises and the construction of the Initial Improvements, Developer must cause to be paid, prior to delinquency, any and all taxes of whatever character, including ad valorem and intangible taxes, that may be levied or charged upon the Premises, the Initial Improvements or any operations thereon. Developer shall cause to be paid any and all sales taxes arising in connection with the occupancy or use of the Premises whether the taxes are assessed against the Developer or any Subtenant. Developer must obtain and pay for all licenses or permits necessary or required by law for the construction of the Initial Improvements and must require any Subtenant to obtain and pay for all licenses and permits necessary or required by law for the installation of equipment and f mishings, and any other licenses necessary for the conduct of its operations. If Developer or any Subtenant wishes to contest any tax or charge, such contest will not be a default under the Lease, so long as Developer or such Subtenant diligently prosecutes the contest to conclusion and promptly pays whatever tax is ultimately owed. Further, Developer shall cause any taxes not being contested to be paid prior to delinquency. 6. Insurance Developer shall not commence construction of the Initial improvements until all insurance required under Section 15 of the Lease and Exhibit A -3 attached hereto has been obtained by Developer and any contractor or subcontractors engaged by Developer and approved by Landlord's Risk Manager or designee. Developer shall otherwise comply with the terms and provisions set forth in Section 15 of the Lease and Exhibit A -3 at all times during the construction of the Initial Improvements. Exhibit A, Page 6 of 6 Exhibit A -1 GSA REQUEST FOR LEASE PROPOSAL (to be attached when issued) [see attacheaff Exhibit A -1 Exhibit A -2 UTILITY INFRASTRUCTURE [see attached] Exhibit A -2 Exhibit A -3 INSURANCE REQUIREMENTS I. DEVELOPER'S LIABILITY INSURANCE A. Developer shall not commence work under the Lease until all insurance required herein has been obtained and approved by Landlord's Risk Manager or designee. Developer must not allow any contractor or subcontractor to commence work until all similar insurance required of the Developer /Contractor has been so obtained. B. Developer shall furnish to the Risk Manager or designee two (2) copies of Certificates of Insurance, with applicable policy endorsements showing the following minimum coverage by an insurance company(s) acceptable to the Risk Manager or designee. Landlord must be named as an additional insured for the General Liability policy, and a waiver of subrogation is required on all applicable property policies. C. In the event of accidents of any kind related to this project, Developer /Contractor shall furnish the Risk Manager with copies of all reports of such accidents within ten (10) days of the accident. Exhibit A -3, Page 1 of 3 TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 -Day Notice of Cancellation required on all Bodily injury and Property Damage certificates or by policy endorsement(s) Per Occurrence / aggregate Commercial General Liability including: 1. Broad Form $1,000,000 Per Occurrence 2. Premises — Operations $2,000,000 Aggregate 3. Products /Completed Operations Hazard 4. Contractual Liability 5, Broad Form Property Damage 6. Independent Tenants 7. Underground Hazard (if applicable) BUILDER'S RISK Completed Value Policy with an All -Risk (During any Period of Construction) Endorsement BUSINESS AUTOMOBILE LIABILITY $5,000,000 Combined Single Limit 1. Owned 2. Hired & Non -owned WORKERS' COMPENSATION WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION ACT AND PARAGRAPH 11 OF THIS EXHIBIT. EMPLOYER'S LIABILITY $500,0001$500,0001$500,000 C. In the event of accidents of any kind related to this project, Developer /Contractor shall furnish the Risk Manager with copies of all reports of such accidents within ten (10) days of the accident. Exhibit A -3, Page 1 of 3 H. ADDITIONAL REQUIREMENTS A. Developer /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. B. Developer's financial integrity is of interest to Landlord; therefore, subject to Developer's right to maintain reasonable deductibles in such amounts as are reasonably approved by Landlord, Developer shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at DeveIoper'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. Landlord 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 Landlord, and may reasonably 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 or the underwriter of any such policies) where commercially feasible. Developer shall be required to comply with any such requests and shall submit a copy of the replacement certificate of insurance to Landlord at the address provided below within 10 days of the requested change. Developer shall pay any costs incurred resulting from said changes. All notices under this provision shall be given Landlord at the following address: City of Corpus Christi Attn: Risk Management P.O. Box 9277 Corpus Christi, TX 78469 -9277 (36 t) 826 -4555- Fax # D. Developer /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 Landlord and its officers, officials, employees, 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 Landlord, 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 Landlord is an additional insured shown on the policy; • Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of Landlord; and • Provide thirty (30) calendar days advance written notice directly to Landlord of any cancellation 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, Exhibit A -3, Page 2 of 3 Developer shall provide a replacement Certificate of Insurance and applicable endorsements to Landlord. Landlord shall have the option to suspend Developer'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 hereof if not promptly cured. F. In addition to any other remedies Landlord may have upon Developer's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, Landlord shall have the right to order Developer to stop work hereunder, and/or withhold any payment(s) which become due to Developer hereunder until Developer demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which Developer may be held responsible for payments of damages to persons or property resulting from Developer's performance of the work covered hereunder. H. It is agreed that Developer'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 the Lease, except for the negligence of Landlord. I. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in the Lease. Exhibit A -3, Page 3 of 3 Exhibit B PREMISES DESCRIPTION [see attached] Exhibit B Exhibit C GOVERNMENT LEASE (to be attached when executed) [see attached Exhibit C AGENDA MEMORANDUM First Reading Ordinance for the City Council Meeting of Feb. 12, 2013 Second Reading Ordinance for the City Council Meeting of Feb.26, 2013 DATE: November 29, 2012 TO: Ronald L. Olson, City Manager FROM: Robert Rocha, Fire Chief rrocha @cctexas.com (361) 826 -3932 Adoption of the 2009 International Fire Code with local amendments. CAPTION: Ordinance adopting the International Fire Code, 2009 Edition, with local amendments, as the Fire Code of the City of Corpus Christi; providing for penalties; providing for severance; and providing for publication. PURPOSE: The purpose of this code is to establish the minimum requirements consistent with nationally recognized good practice for providing a reasonable level of life safety and property protection . from the hazards of fire, explosion or dangerous conditions in new and existing buildings, structures and premises. BACKGROUND AND FINDINGS: On October 2003 the Fire Department adopted the 2003 International Fire Code, We are now proposing to adopt the 2009 International Fire Code with some local amendments. The 2012 International Fire Code has now been published and we will immediately proceed to adopt that version with some local amendments as soon as the 2009 International Fire Code is adopted. The codes have to be approved sequentially; therefore we will approve the 2009 code first. The main changes to the fire code are as follows: • Some sections in the current Fire Code have been moved to coincide with the 2009 International Fire Code. • The permit fee for "Open Burning" increased from $300.00 per day to $500.00 per day. • More stringent rules have been adopted for the placement and operation of "open -flame cooking devices" close to multi- family dwellings. • The preparation or serving of "flaming beverages" in places of assembly and drinking or dining establishments is prohibited. • Clarification on the requirements of property owners regarding the posting of "Fire Lane - No Parking" signs has been added to the fire code. • Fire hydrant proximity requirements have been clarified for multi - family dwellings. • Above - ground tanks storing hazardous liquids shall be inspected annually by the owner and inspected every three years by a professional engineer licensed in Texas. Copies of the adopted 2009 Fire Code with reference material and local amendments will be made available at the City Secretary's Office. ALTERNATIVES: None OTHER CONSIDERATIONS: None CONFORMITY TO CITY POLICY: This ordinance conforms to Chapter 18 of the Code of Ordinances. EMERGENCY /NON- EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: None FINANCIAL IMPACT: ❑ Operating o Revenue n Capital X Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered 1 Expended Amount This item BALANCE runa(sy Comments: None RECOMMENDATION: Staff recommends approval to adopt the 2009 International Fire Code with local amendments. LIST OF SUPPORTING DOCUMENTS: Ordinance Ordinance adopting the International Fire Code, 2009 Edition, with local amendments, as the Fire Code of the City of Corpus Christi; providing for penalties; providing for severance; and providing for publication. Be it ordained by the City Council of the City of Corpus Christi, Texas, that: Section I. Section 18 -1, Code of Ordinances is revised to read as follows: "Sec. 18 -1. Fire prevention code. "(a) The International Fire Code, 2003 2009 Edition, a copy of which, authenticated by the signatures of the mayor and the city secretary, made public record by this section, and on file in the city secretary's office, is hereby adopted verbatim by reference, as if fully copied at length in this article as the fire prevention code in chapter 18, article I, section 18 -1 of the City of Corpus Christi Code of Ordinances. "(b) Additions, deletions, and changes are made to the International Fire Code, 2-0� 2009 Edition, and correlated to the appropriate paragraph numbers in the International Fire Code as follows; "(1) Section 101. I.of the International Fire Code is revised to read as follows: "101.1 Title. These regulations shall be known as the Fire Code of City of Corpus Christi, and may be referred to as "this code." "(2) Section 909.2.1 of the International Fire Code is revised to read as follows: "909.2.1 Appendices. Provisions in the appendices may not apply unless specifically adopted. The appendices included in this code and the appendices included in referenced standards are not intended for enforcement unless specifically referenced in the code text or specifically included in this ordinance or necessary to clarify technical issues." "(3) Sections 103.2 and 103.3 of the International Fire Code is revised to read as follows: "103.2 Fire Prevention Bureau. There is hereby established a division of the Fire Department to be called the Fire Prevention Bureau and the person in charge shall be known as the fire code official and/or fire marshal. ■ . w r w w + w + W A w E + w, ji • A . .wow •. w w ♦• IRM w w + "(4) Section 104.5 of the International Fire Code is revised to read as follows: "104.5 Written notices and citations. At such time as an inspection is conducted by a representative of the fire prevention bureau and minor fire code violations are found to exist written notice specifying the defects is to be given to the business owner or any person in charge of the premises. A reasonable amount of time must be given to abate the violation. If a violation of the fire prevention code is unabated after written notice and a reasonable amount of time, then the fire official or fire inspector may issue a citation to the business owner or to any person in charge of the premises. However, the following violations are considered to be of a serious nature and citations may be issued immediately without prior written notice. "104.5.1 Locked or blocked exits in assembly or educational occupancies. "104.5.2 Nonfunctional or disabled fire alarm system, where required. "104.5.3 Closed valves to sprinkler system. "104.5.4 Overcrowded conditions. "104.5.5 Illegal burning. "104.5.6 No smoke detectors where required. "104.5.7 No fire extinguisher where required. "104.5.8 Any other condition that in the opinion of the fire inspector, poses imminent danger." "(5) Section 104.10.2 is added to this code to read as follows: "104.10.2 Rewards. The mayor is authorized and directed to make public proclamation in the name of the city offering a reward of five hundred dollars ($500.00) for the arrest and conviction in a court of competent and final jurisdiction, of any person found guilty of the crime of arson, as defined in the statutes of the state, within the limits of the city and to have the proclamation printed upon placards eight (8) by twelve (12) inches in size and placed in wooden frames, under glass, and posted in at least 20 public buildings in the city." t - A 1 w 484 �Q . 105.6.19.1 -- 105.6.19.3 are added to this code to read as follows: "105.6.20.4.105.6.19.1 Fumigators and thermal insecticidal foggers may pay an annual permit fee in the amount of three hundred fifteen fib dollars ($215 00- 350.00). "405.6.20.2.105.6.19.2 Annual permit holders must call at least twenty -four (24) hours before the fumigation is to begin. "105.6-20-3.105.6.19.3 The fire official is to be notified at least twenty -four (24) hours before any building or structure or ship is to be closed in connection with the use of any toxic or flammable fumigant and at the time the building or structure or ship is released for occupancy. 9) LD Sections 105.6.34 of the International Fire Code is revised to read as follows: "405.6.35 105.6.34 Places of assembly. An operational permit is required to operate a place of assembly. The permit may not be issued unless all seats, stands and structures conform to the requirements of the Corpus Christi Building Code." "{- 9)-S8) Sections 105.6.47 -- 105.6.53 are added to this code to read as follows: "4.95.6.48 105.6.47 Day care facilities. A permit shall be required to operate a day care facility. "405.6. 49-105.6.48 Foster home /group homes. A permit shall be required to operate a foster home or a group home. "105.6.50 105.6.49 High rise life safety systems. No person shall install, enlarge, or extend a high rise life safety system without a permit from the fire code official. "405. 6.54 105.6.50 Hospitals and nursing homes. A permit shall be required to operate a hospital or nursing home. "4-0. X105.6.51 Restaurants. A permit shall be required to operate a restaurant. "105.6.53- 105.6.52 Unvented and portable fuel burning heaters. No person shall sell, purchase, or use an unvented portable fuel burning heater within the city limits without a permit. "105 4105.6.53 Commercial vent -a -hood cleaning. An operational permit is required to clean commercial vent -a- hoods, documentation must be provided indicating training from a nationally recognized agengy agency complying with NFPA 96." "k4-4aSection 105. 7, 105.7.7 of the International Fire Code is revised by adding a new subdivision 4 to this code to read as follows: "W5T-5- 105.7.7 Flammable and combustible liquids. A construction permit is required: "4. The application for a permit to install an above ground flammable or combustible liquid tank shall be accompanied by the following: "1. Manufacturer's installation requirements. "2. Listing for tank. "I Site plan showing address and proposed installation location." "022}LIO�Sections 105.8- - 105.10 are added to this code to read as follows: "105.8 Fee Schedule. Applications for permits shall be accompanied by the payment of fees in accordance with the Corpus Christi Fire Prevention Permit Fee Schedule, as follows: "Corpus Christi Fire Department "Fire Prevention Permit Fee Schedule Permit Fee Fee Fire /Arson reports $ 0.10 per page After hours overtime 50.00 per hour f3- inspections surGhage hour minimum) anRUa _EgSaid prior to scheduling inspection Airports, heliports and 100.00 annually helisto s Assembly 100.00 annual) Automatic sprinklers, 100.00 per visit standpipes, and fire lines (testing) Churches (one -time fee -- 100.00 no day care facility on premises Combustible fibers 100.00 annually (storage and handling) Commercial Vent -A -Hood 50.00 annually cleaning Compressed gas 100.00 annual) Cryogenic fluids 100.00 annuals Day care facilities (or 75.00 annually similar short-term occupancies) Demolition wl explosives 250.00 per event Dry cleaning plants 100.00 annual) Explosives, blasting 150.00 annually agents and ammunition storage.__. Extinguishing systems 100.00 per inspection Fire alarm systems 75.00 per floor_ er test visit Fire alarm systems 75.00 per zone_ (required 15,000 square per test visit foot zones Fireworks display aerial 250.00 per display Fireworks display (non- aerial 150.00 per display Flammable and combustible liquids 100.00 annually Flammable finishes 100.00 annual) Foster homes and group homes 75.00 annually Fumigation and thermal insecticide fogging 350.00 annually Hazardous chemicals 100.00 annual) High piled combustible stock 100.00 annually High rise life safety system (testing before issuance of C. of O.) 200.00 per test Hospitals and nursing homes 250.00 per facility plus 1.20 per bed LiquAed -Lique #led natural as 100.00 annually I ins iLiguefied petroleum gas 100.00 annually Lumber storage 100,00 annual) Mechanical refrigeration 100.00 annually Open burning 300.00 500.00 per day Organic coatings 100.00 annual) Plans review 150.00 per review Pressure test (fuel storage tanks and/or product lines 100.00 per visit Repair garages 100.00 annually Restaurants (facilities that accommodate 100 or less occupants) 100.00 annually Restaurants (facilities that accommodate more than 100 occupants 100.00 annually Special events permits Exhibits /shows 100.00 Flame effects 150.00 Visual 'inspection 50.00 Special handling fee (less than 24- hours' notice ) 100.00 per inspection Tank vehicles for 100.00 annually flammable and combustible liquids Tents and air supported 75.00 annually structures Tire rebuilding plant 100.00 annually Underground/aboveground 100.00 per fuel tanks (installation and inspection removal) Wrecking yard, junkyard or 100.00 annually waste handling "105.9 Applications and fees required for failure to pass inspections. If a site does not meet the standards for issuance of a permit after the first inspection, the applicant must submit a new application and pay a permit fee before any subsequent inspections will be conducted. "105.70 Burning permits. Burning permits will not be issued unless both fire prevention and environmental control division approve the material to be burned. "0,1+L11 �Section 108 of the International Fire Code is revised to read as follows: "SECTION 108 "MODIFICATION OF FIRE PREVENTION CODE "108.1 Appointment. The city manager, the fire chief, and the fire marshal, acting together, shall have the power to modify any provision of the fire prevention code, upon application in writing by the owner or lessee or their duly authorized agents, when there are practical difficulties in the way of carrying out the strict letter of the code; provided that the spirit of the code shall be observed, public safety secured and substantial justice done. Such modification shall only be applicable upon the unanimous approval of the city manager, fire chief, and the fire marshal in writing. The particulars of such modification when granted or allowed by such unanimous approval shall be entered into the records of the fire marshal and a signed copy be furnished to the applicant. "108.2 Appeals. "108.2.1 General. Whenever it is claimed that the provisions of this code do not apply, or when it is claimed that the true intent and meaning of this code or any of the regulations of this code have been misconstrued or incorrectly interpreted, the owner of such building or structure, or the owner's duly authorized agent, may appeal the decision of the fire official to the city manager by filing notice of appeal with the fire chief. Notice of appeal shall be in writing and filed within 15 days after the decision is rendered by the fire official. "908.2.2 Unsafe or Dangerous Building. In case of a building, structure or operation which, in the opinion of the fire official, is unsafe or dangerous, the fire official may, in his or her order, limit the time for such appeal to a shorter period. "108.3 Decisions. "908.3.1 Variances. The city manager, fire chief, and fire marshal, collectively, when so appealed to and after a hearing, may vary the application of any provision of this code to any particular case, when, in its opinion, the enforcement thereof would do manifest injustice and would be contrary to the spirit and purpose of this code or public interest, or when, in its opinion, the interpretation of the fire official should be modified or reversed. "908.3.2 Action. In every case, reach a decision without unreasonable or unnecessary delay. Each decision shall also include the reasons for the decision. If a decision reverses or modified a refusal, order, or disallowance of the fire official, or varies the application of any provision of this code, the fire official shall immediately take action in accordance with such decision. "108.3.3 Decisions Are Final. Every decision of the city manager, fire chief, and fire marshal shall be final, subject however to such remedy as any aggrieved party might have at law or in equity. "108.4 Limitations on authority. An application for appeal shall be based on a claim that the intent of this code or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of this code do not fully apply, or an equivalent method of protection or safety is proposed. The board shall have no authority to waive requirements of this code. "108.5 Administration. "The code official shall take action in accordance with the decision of the board." "44)-LI 2). Section 109.3 of the International Fire Code is revised to read as follows: "109.3 Violation penalties. Persons who shall violate a provision of this code or shall fail to comply with any of the requirements thereof or who shall erect, install, alter, repair or do work in violation of the approved construction documents or directive of the code official, or of a permit or certificate used under provisions of this code, shall be guilty of a misdemeanor punishable by a fine of not less than fifty ($50) dollars and not more than two thousand ($2,000) dollars , Each day that a violation continues after due notice has been served shall be deemed a separate offense." "0- 6)- L1__3LSection 110.1 of the International Fire Code is revised to read as follows: "110.1 General. All buildings or structures which do not provide adequate egress, which constitute a fire hazard, or are otherwise dangerous to human life, or which, in relation to existing use, constitute a hazard to safety or health are considered unsafe buildings. All such unsafe buildings are hereby declared illegal, and the fire official shall refer the building to the Zoning and Code Enforcement Administrator for abatement by repair and rehabilitation or by demolition." "46-� 14 Section 111.4 of the International Fire Code is revised to read as follows: "111.4 Failure to comply. Any person who shall continue any work after having been served with a stop work order, except such work as that person is directed to perform to remove a violation or unsafe condition, shall be liable to a fine of not less than fifty ($50.00) dollars or more than two thousand ($2,000) dollars." "{- }-Section 202 of the International Fire Code is revised by adding definitions for the terms "condominium" and "dwelling, multiple unit" and con by adding the word "condominium" to the R -2 occupancy classification in this code to read as follows: "Condominium. A single - dwelling unit in a multiunit dwelling or structure, that is separately owned and may be combined with an undivided interest in the common areas and facilities of the property. "Dwelling, multiple unit. A building or portion thereof designed for occupancy by three or more families living independently in which they may or may not share common entrances and/or other spaces. Individual dwelling units may be owned as condominiums, or offered for rent. "Occupancy classification. For the purposes of this code, certain occupancies are defined as follows: "R -2 Residential occupancies containing sleeping units or more than two dwelling units where the occupants are primarily permanent in nature, including: "Condominiums" "(16) Section 308.1.4 of the International Fire Code is revised to read as follows: "308.1.4 Open -flame cooking devices. "No person shall install or operate a stove, oven, or barbecue pit, whether portable, temporary or permanent, on the premises of multi - family dwellings, apartments, condominiums, attached single family or hotels, when such stove, oven or barbecue pit is located less than ten (10) feet from any portion of a combustible building, including but not limited to decks arches balconies walls or verandas. This section does not apply to one - family -and two - family dwellings or to a stove, oven or barbecue pit installed inside multi- family dwellings, apartments, condominiums, attached single family or hotels in accordance with the city building codes." "(17) Sections 308.1.8 and 308.1.8_ ._1_ of the International Fire Code are revised to read as follows: "308.1.8 Flaming food and beverage preparation. The preparation or serving of flaming beverages is prohibited. The preparation of flaming foods in places of assembly and drinking or dining establishments shall be in accordance with Sections 308.1.8.1 through 308.1.8.5. "308.1.8.1 Dispensing. Flammable or combustible liquids used in the preparation of flaming foods shall be dispensed from one of the following: 1. A 1- ounce 9.6mi) container; or 2. A container not exceeding 1 :quart (946.5m1) capacity with a controlled pourinq device that will limit the flow to a 1 -ounce (29.6ml) serving." "(18) Sections 318 and 319 are added to this code to read as follows- "SECTION-346 318 "CONVALESCENT HOMES, HOMES FOR THE AGED, AND NURSERIES "316.1318. 1 Heating. Buildings occupied for the purposes of convalescent homes, homes for the aged, and nurseries shall have central heating plants with installation so as to safeguard the inherent fire hazard. "32318.2 Portable heaters. The use of portable heaters of any kind is prohibited. "316.3 318.3 Lighting. Lighting shall be restricted to electricity. " SECTION-W 319 "COMMERCIAL LAUNDRIES "317.1319.1 Vents and lint collectors. Vents and lint collectors shall be installed and maintained so that lint does not accumulate in the chase or area behind the dryers or the roof of the building." "(19) Section 503.1.1 of the Intemational Fire Code is revised to read as follows: "503.1.1 Buildings and facilities. Approved fire apparatus access roads shall be provided for every facility, building or portion of a building hereafter constructed or moved into or within the jurisdiction. The fire apparatus access road shall allow access to three (3) sides of buildings in excess of fifteen thousand (15,000) square feet and all sides for buildings in excess of thirty thousand (30,000) square feet. During construction, when combustibles are brought on to the site in such quantities as deemed hazardous by the fire official, access roads and a suitable temporary supply of water acceptable to the fire department shall be provided and maintained. "Exception: When conditions prevent the installation of an approved fire apparatus access road, the code official may permit the installation of a fire - protection system or systems in lieu of a road, provided the system or systems are not otherwise required by this or any other code. "(20) Section 503.3 of the International Fire Code is revised to read as follows: "503.3 Marking. Where required by the fire code official, approved signs or other approved notices that include the words NO PARKING — FIRE LANE shall be provided for fire apparatus access roads to identify such roads or identify such roads or prohibit the obstruction thereof. The means by which fire lanes are designated Signs nr noti%s shall be maintained in a clean and legible condition at all times and be replaced or repaired when necessary to provide adequate visibility. Fire department access roadways designated by the code official in accordance with the Fire Prevention Code shall be marked by the property owner along the perimeter with conspicuous signs which have the words, "Fire Lane - No Parking" in red four -inch high letters on a white background at fifty -foot intervals. Signs shall be a minimum of five (5) feet above the ground to the bottom of the sign and a maximum of eight (8) feet above the ground to the top of sign. In Lieu of signs, fi=ire lanes s4a11 may also be marked along curbing with the wording, "Fire Lane - No Parking" in white four -inch high letters on a red background stripe at fifteen -foot intervals. Exception: Universal "No Parking" signs may be used in lieu of the above. "(21) Section 503.4.1 is added to this code to read as follows: "503.4.1 Authority for removal. The owner of premises at or upon which a fire lane is required, or the agent of the owner, may have any vehicle that is parked in the fire lane, except an authorized emergency vehicle, removed and stored at the expense of the owner or operator of the vehicle, and subject to removal by the fire official, his or her designated assistants, or a police officer. "(22) Sections 507.5.1 of the International Fire Code is revised to read as follows: "508-5.4 WateF supply. 507.5.1 Where p required. All remises, other ..,_— than one - family and two - family detached dwellings, where buildings or portions of buildings are located more than one hundred fifty (150) feet from a fire hydrant shall be provided with approved on- site fire hydrants and water mains capable of supplying the fire flow required by the fire code official. The location and number of on- site hydrants shall be as designated by the fire code official, with the minimum arrangement being so as to have a hydrant available for distribution of hose to any portion of any building on the premises at distances not exceeding three hundred (300) feet but in no case shall hose lengths be greater than three hundred (300) feet. Public hydrants are recognized as meeting all or part of the above requirements. "(23) SeGtian 508.5.7 Section 507.57 is added to this code to read as follows: "597507.5.7 No parking near hydrant. No automobile, truck, or other vehicle shall be parked closer than fifteen (15) feet to any fire hydrant." "(24) Seotion 60 Section 603.10 is added to this code to read as follows: "603.4 Portable Unvented Heaters 603.10 Portable Lk quid Fuel Burning Heaters. The sale or use of any type of portable liquid fuel burning heater is prohibited. Construction sites and commercial sites, where flammable or combustible vapors are not present are exempt from this requirement with approval of the fire code official. A permit shall be required for the use of portable liquid fuel burning heaters. The sale or use of unvented fuel heaters at construction sites and commercial sites is prohibited, except that unvented portable liquid fuel burning heaters having the following safeguards may be approved for use: "1. Automatic means of shutting off fuel when heater is upset. "2. Adequate guards to protect persons against contact with flame or combustion chamber. "3. Listed by nationally recognized testing agency. "(25) Section 907.1.1 of the International Fire Code is revised to read as follows: "907.1.1 Construction documents. 1. Construction documents for fire alarm systems shall be of sufficient clarity to indicate the location, nature and extent of the work proposed and show in detail that it will conform to the provisions of this code, the international Building Code, and relevant laws, ordinances, rules and regulations as determined by the fire code official. 2. Construction documents for fire alarms stems shall be submitted for review and approval prior to system installation. 3. Two (2) complete sets of plans shall be provided to the fire prevention bureau. 4. These plans shall bear the signature and license number of the licensed fire alarm planning superintendent, the date of proposed installation and the name, address, and certificate -of- registration number of the registered firm. S. Any plans not drawn or submitted by a licensed planning superintendent will not be accepted. Other spe drift Rot be limited to, all ef the fGllo "(26) Section 907.2.3 of the International Fire Code is revised to read as follows: "907.2.3 Group E. A manual fire alarm system shall be installed in Group E occupancies. When automatic sprinkler systems or smoke detectors are installed, such systems or detectors shall be connected to the building fire alarm system. Smoke alarms shall be installed in of all educational occupancies including but not limited to day care centers, elementary and secondary schools, and all portable buildings. These devices shall be installed in accordance with the rules for "partial smoke detection systems ", except day care centers which will require additional protection in every room in which children sleep. Smoke alarms shall be listed and meet the installation requirements of NFPA 72. "(27) Section 907.2.24 is added to this code to read as follows: "907.2.24 Cooking operations. In the event the building has a fire protective signaling system, the fire suppression system for cooking operations shall be connected to the fire protective signaling system. NO" - - - w A "(2$) Section 912.2.3 is added to this code to read as follows "912.2.3 Proximity to hydrant. Fire department connections from each sprinkler or standpipe shall be located not more than 100 feet (30 mm) from the nearest fire hydrant connected to an approved water supply." "(29) Section 2206.2.3 of the International Fire Code is revised and amended by addinq a new subdivision 5 to this code to read as follows: "2206.2.3 Above - ground tanks located outside, above - grade. "2. Above - ground tanks used for above -grade storaae of Class 11 or IIIA liquids are allowed to be protected above- ground tanks or, when approved by the fire code official, other above - ground tanks that comply_, with Chapter 34 Tank locations shall be in accordance with Table 220611 but may only be located within a light and heavy industrial zoning districts. "3. Tanks containing fuels may not exceed 6, 00 ) 10,000 gallons in individual capacity or 1 8,G98 30.000 gallons in aggregate capacity. Installations with the maximum allowable aggregate capacity shall be separated from other such installations by not less than 100 feet (30 480 mm). "5. Above - ground tanks sto,rinq Class 1, 11, or 111A liquids shall be inspected annually by a company holding a Type A license issued by the Texas Commission on Environmental Quality. Any tank found to be damaged or not installed in accordance with its listing or this code shall be immediate) reported to the fire code official." "(30) Section 3301.2.4 of the International Fire Code is revised to read as follows: "3301.2.4 Financial responsibility. Before a permit is issued, as required by Section 3301.2, the applicant shall file with the jurisdiction a corporate surety bond in an amount deemed adequate by the fire code official or a public liability insurance policy for the same amount, for the purpose of the payment of all damages to persons or property which arise from, or are caused by, the conduct of any act authorized by the permit upon which any judicial judgment results. The fire code official is authorized to specify a greater or lesser amount when, in his or her opinion, conditions at the location of use indicate a greater or lesser amount is required. Government entities shall be exempt from this bond requirement. "(31) Section 3308.5 of the International Fire Code is revised to read as follows: "3308.5 Storage of fireworks at display site. The storage of fireworks at the display site shall comply with the requirements of this section and NFPA 1123 or NFPA 1126 and shall be approved by the fire code official. At no time shall the amount of explosive compound exceed the amount necessary for one (1) show date consumption. a • S w ■■ • - -� IN - • - - .r. — — — — IWAIM — �— — — — — — •w — — — — mot IT.TF.Id - ~aa _ — W — w . + — — ■ • _ — — ■ — - - -. - •• - a • S w ■■ • — — • • — .r. — — — — IWAIM — �— — — — — — •w — — — — mot IT.TF.Id - ~aa _ ■■ • — — • • — .r. — — — — • — W — w . + - - -. - •• - "3308.14 -a The this - area wothon the Gity PFOViSiORS and to all of seGtiGn that area - -- and witWR five thousand (5,009) of f- the limits; Got hewever, that RO GhaRge OR the --t Gity of -Ity limits provided, August 1976, shall affect - GGGUFFiRg after - the 9ffeGtmve date "3309, 15 Duties of City Attorney. Notwithstanding Of 6U'-nC7hR of this - the Gity Atteffley is any pena4 autherized _ _ of his er heF _ , r _ ' • iRterfering _ _ fiFeWOFks, but it may Rot be t - Defense in lR v'olat'GR Gf thiS Ghapter, pro89GUtiOn. it may Rot be aRy PFGGeGUtj9R fGF the to Regate • _ ReGeSSaFy • _ be prGseGutwon dmfAmnrinnf PFGVISG kxi itinii af ^• - same may - - raised b - • . _ _ _ _ _ 21MOSIM11 _ _ • _ _ _ - _ .0. MAM 0. LWARILTMIJ _ _ _ _ _ _ _ _ _ "04 32 Section -3309 3310 is added to this code to read as follows: "SECTION 3309 3310 "INDOOR FIRE WORKS SPECIAL EFFECTS "3309.13310.1 Indoor Permit "3301- 3310.1.1 No person shall discharge any fireworks inside any building without a permit. Such permit shall describe the explosive compounds to be used and the amount per show. "3309.1.2 3310.1.2 Prior to the issuance of a permit for indoor fireworks, the operator shall file an application with the fire official, stating the operator's qualifications and other information as deemed necessary by the fire official to certify that the operator for which application has been made is capable of safely discharging such fireworks as described to the satisfaction of the fire official. "3303-3310.1.3 No permit once issued may be transferred to another location nor another operator. Any change in the information listed on the permit will require a new permit. Any time the circumstances for which the permit was issued change, the permit is void. "334- 3310.1.4 No permit shall be issued until the show setup is approved by the fire official or his or her designee prior to the first show. "3309.1.5 3310.1.5 No permit shall be issued unless the building listed as the location of the display has had a current fire inspection and is in compliance with this code. "3300 - 23310.2 Location and Amount "33003310.2.1 The location of the fireworks display shall be specified as to street address, building designation and exact area within the building to allow the fire official to determine that the proposed display can safely be discharged as approved. "3309.2.2 3310.2.2 At no time shall the amount of explosive compound inside the building listed on the permit exceed the amount necessary for one (1) show date consumption. "330°T3-3310.2.3 The pyrotechnic operator shall be licensed by the State of Texas as required by the Fireworks Rules of the State of Texas. "3309.2.43310.2.4 A public display permit shall also be obtained as required by the Fireworks Rules of the State of Texas." "(33 ) Section 3311 is added to this code to read as follows: "SECTION 3311 CONSUMER FIREWORKS "3311.1 Restricted Use. A person commits an offense if the person manufactures assembles stores transports, receives keeps, sells offers or has in his possession with intent to sell delive to any person or place, use discharge, cause to be discharged, ignite, detonate fire or otherwise set in action or have in his possession or on his person or under his control any consumer fireworks or any description except as herein provided. The fire official shall have the power to adopt reasonable rules and regulations for the ,granting of permits for supervised public displays of fireworks by a jurisdiction fair associations amusement parks, other organizations or for the Use of fireworks by artisans in pursuit of their trade.. Every such use or display shall be handled by a competent operator approved by the fire official, and shall be of such character and so located, discharged or fired so as not to be hazardous to property or endanger any person. "3311.2 Removal and Disposal. The presence of any consumer fireworks within the city or within five thousand (5,000) feet of the city limits except fireworks fora public display authorized bv the Fire Official, is declared to be a common and public nuisance and detrimental to the public health, safety and general welfare, and constitutes a violation of this Code. The fire official is directed and required to seize and cause to be safely destroyed any consumer fireworks found within the city or in violation of the other provisions of this fire prevention code. Any member of the fire department of the city or any police officer is empowered to seize any consumer fireworks found within the city or within five thousand (5,000) feet of the city _limits in violation of this article and cause the consumer fireworks to be safely destroyed. "3311,3 Definition. Consumer fireworks means and includes any combustible or explosive composition, or any substance or combination of substances, or device prepared for the purpose of producing a visible or an audible effect by combustion, explosion, deflagration, or detonation, and shall include blank cartridges, toy Pistols, toy cannons, toy canes, or toy guns in which explosives are used, firecrackers, torpedoes, pop pops (such as: pop tops, pow- wow, fun snaps, or similar explosive devices which can be projected, tossed, thrown, or dropped), skyrockets, roman candies, daygo bombs sparklers, or other devices of like construction and arly devices containing any explosive or flammable compound, or any tablet or other device containing an explosive substance that are not fireworks approved for use at an-approvad fireworks dis la under Section 3308, except that the term "consumer_ fireworks" shall not include any auto flares paper caps which contain twenty- five hundredths 0.25 of a grain of explosive content or less pe r ca-P and are used with toy pistols, toy canes toy guns, model rocket propulsion motors or other similar devices the sale and use of which shall be permitted at all times. "3311.4 Aplilicability. The provisions of this section apply to all of the area within the city and to all of that area adjacent to the city and within five thousand (5,000) feet of the city limits provided, however, that no change in the city limits occurring after August 4 1976, shall affect an expansion of the area in which this chapter applies until the 120th day following the effective date of such change in the city limits. "3311.5 Duties of City Attome . Notwithstanding any penal provisions of this article the City Attorney is authorized to file suit on behalf of the city or the fire ,marshal or both, for injunctive _relief as may be necessary to prevent unlawful storage transportation, keeping or use of consumer fireworks within the city and to aid the fire marshal in the discharge of his duties and to prevent any person from interfering with the seizure and destruction of such consumer fireworks, but it shall not be necessary to obtain any such in'unctive relief as a rere uisite to such seizure or destruction. "3311.6_ Defense in prosecution. In any prosecution for any violation of this chapter, it shall not be necessary for the prosecution to negate any proviso exception, but the same may be raised by the defendant by way of defense. The possession of a permit from the fire official shall constitute a defense to the persons named in such permit or in place of the persons named in such permit. "3311.7 Penalty. A person commits an offense if the person manufactures, assembles, stores, transports receives, keeps, sells, offers or has in his possession with intent to sell deliver to an arson or place, use discharge, cause to be discharged, ignite, detonate, fire or otherwise set in action or has in his possession or on his person or under his control any consumer fireworks of any description except as herein provided. Any person, upon conviction of an offense for violation of any provision of this chapter, shall be fined not more than two thousand dollars ($2,000.00). If an saw consumer fireworks are qUarateIV wrapped or packaged, anV act required by this chapter involving each separately wrapped or packaged consumer fireworks constitutes a separate offense. Each day that a violation of this chapter shall continue with res ect to any package of consumer fireworks shall constitute a separate offense." HIM "�}L14JSection 3405.3.3 of the Intemational Fire Code is revised to read as follows: "3405.3.3 Heating, lighting and cooking appliances. Heating, lighting and cooking appliances which utilize Class I liquids may not be operated within a building or structure. "{a7} 35 Section 3801.1 of the Intemational Fire Code is revised to read as follows: "3801.1 Scope. Storage, handling and transportation of LP -gas and the installation of LP -gas equipment pertinent to systems for such uses shall comply with this chapter and NFPA 58. Properties of LP -gases shall be determined in accordance with Appendix B of NFPA 58. The transportation, storage, handling and use of liquefied petroleum gas and the installation and maintenance of all pertinent equipment is subject to the approval of the fire official. "{38}tL61Section 3803.1 of the Intemational Fire Code is revised to read as follows: "3803.1 General. Liquefied petroleum gas equipment shall be installed in accordance with the International Fuel Gas Code and NFPA 58, except as otherwise provided in this chapter or in other laws or regulations legally in effect. "3803.1.1 Within the limits of the City of Corpus Christi no storage container shall be installed, erected or used for a capacity to hold more than one hundred fifty (150) water gallons, except as follows: "3803.1.1.1 Installations accessory to service stations as permitted by the zoning ordinance, when the aggregate capacity of any one (1) installation does not exceed two thousand (2,000) gallons of water capacity. "3803.1.1.2 Installations accessory to industrial uses permitted in areas zoned industrial, when the aggregate capacity of any one such installation does not exceed two thousand (2,000) gallons of water capacity, except that in particular installations this capacity limit may be altered at the discretion of the Fire Official to increase the maximum allowable capacity to not more than eight thousand (8,000) gallons of water capacity after consideration of special features such as topographical conditions, nature of occupancy and proximity of buildings, capacity of proposed tanks, degree of private fire protection to be provided, and facilities of the local fire department. "3803.1.1.3 Installations in " use a heavy industry zoning district. "3803.1.1.4 The restrictions in Section 3803. 1.1 to do not apply to containers used for transportation purposes. "3803.1.1.5 Containers larger than e44 one hundred fifty (150) water gallons capacity may be authorized and installed only after applicant has first obtained and presented to the Fire Official a written approval of such installation of the Director, Liquefied Petroleum Gas Division, Railroad Commission of Texas. "{ %- LILSection 3804.4 of the International Fire Code is revised to read as follows: "3804.4 Multiple container installation. Multiple container installations in an cFea zoned ; 3 "heavy -iRd stFia- a heav Indust zoning district with a total storage water capacity of more than 180,000 gallons (681 300 L) [150,000 -gallon (567 750 L) LP -gas capacity] shall be subdivided into groups containing not more than 180,000 gallons (681 300 L) in each group. No individual container may exceed thirty thousand (30,000) gallons water capacity. Such groups shall be separated by a distance of not less than 50 feet (15 240 mm), unless the containers are protected in accordance with all of the following one (1) through four (4) or five (5): "(c) Appendices: Appendix A, Board of Appeals; Appendix B, Fire -Flow Requirements for Buildings; Appendix C, Fire Hydrant Locations and Distribution; Appendix D, Fire Apparatus Access Roads; Appendix E, Hazard Categories; Appendix F, Hazard Ranking; Appendix G, Cryogenic Fluids - Weight and Volume Equivalents of the International Fire Code are solely for the purpose of providing information, recommended practices, and to clarify technical issues and may not have the force and effect of law. "(d) Violation of this code: Any person, firm, or corporation who violates a provision of this code is guilty of a misdemeanor and is liable to a fine of not less than two hundred dollars ($200.00) and not more than two thousand dollars ($2,000.00). Each person, firm, or corporation is guilty of a separate offense for each and every day during which any violation of any of the provisions of this code is committed or continued. The owner or owners of any building or structure failing to comply with any of the provisions of this code, and the owner or owners of any premises where a violation of the provisions of this code occurs, and any architect, engineer, designer, builder, contractor, agent, person, firm, or corporation employed therewith and who has assisted in the commission of any such violation, is guilty of a separate offense. Section 2. A violation of this ordinance or requirements implemented under this ordinance constitutes an offense punishable under Section 18 -1(d), Code of Ordinances. Section 3. If for any reason any section, paragraph, subdivision, clause, phrase, word or provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision, clause, phrase, word, or provision of this ordinance, for it is the definite intent of this City Council that every section, paragraph, subdivision, clause, phrase, word or provision of this ordinance be given full force and effect for its purpose. Section 4. 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. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb That the foregoing ordinance was read for the second time and passed finally on this the day of , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb PASSED AND APPROVED, this the th day of , ATTEST: Armando Chapa Nelda Martinez City Secretary Mayor CITY OF CORPUS CHRISTI CERTIFICATION OF FUNDS (City Charter Article IV, Sections 7 & 8) I, the Director of Financial Services of the City of Corpus Christi, Texas (or his/her duly authorized representative), hereby certify to the City Council and other appropriate officers that the money required for the current fiscal year's portion of the contract, agreement, obligation or expenditure described below is in the Treasury to the credit of the Fund specified below, from which it is to be drawn, and has not been appropriated for any other purpose. Future payments are subject to annual appropriation by the City Council. City Council Action Date: February 26, 2013 Agenda Item: Ordinance adopting the International Fire Code, 2009 Edition, with local amendments, as the Fire Code of the City of Corpus Christi; providing for penalties; providing for severance; and providing for publication. Amount Required: $ 0.0 Fund Name Account No. Fund No. Org. No. Project No. Amount Total $ ❑ Certification Not Required Director of Financial Services Date: z 0 (7 U O 0 5 m w x f C' d N K D ra zx w� zi ❑ F x �- a �z a i a a U Q O C J - °aa J � N O U c p az -m a wo �° Fn z m ¢ w j m a N 6 z c 0 a U y w i z a m ° w - O w � a Q 0. a p a U 0 H n a 2 w f rc m F p oa J Q 2 w U p f N w m p z a � W j J J ❑go o p a w a z w� x of U U N 3 z w 4'm w w F i Imt w w - p I I I m - 0 2 m a p x w U arx? z ~ w f O Z F a a •' u• e Z J N jN N N N N j J N J N N p � m - 333 ZZZ 3 Z 3 Z 3 3 Z Z 3 2 3 2 3 z w Z z w Z ¢ 5� ti am USE w 3 x d c 6 N m ¢ 2 W c K V w o 0 ¢W w m m O U5 E9 E o m 2 aW yyU v y m w� ON x mmmd - y -Z.5m� p c m o F O U3M.S u .pjyKK 0 0 0 8 'Q v R n V W N V g y o a j r N u❑ �.� $ U 161 g O +o =tea aav °..o e QQQQ,mj �a =Z�mU N a ? RRU�$iioT orb000 -W❑ J o uoc�i 9° `O c�i - c3 as c�.o8c o ocxiao f e v o v o p - i oo¢aaaa��oa¢o¢aaa o 3 e o o" a o o a S o 0 0 ❑ c of ti a 0 z U Z O Q m 0 U U U c�D a ] §k f.: \ \1 \ i 2 DEPARTMENT OF ENGINEERING SERVICES CHANGE ORDER SUMMARY SHEET January 22, 2013 PROJECT: CCIA Communications Center, Perimeter Security, Standby Generator and Commercial Aviation Apron Lighting Upgrades (Project No. E10075) APPROVED: City Council Motion No. 2011 -216 on September 27, 2011 CONTRACTOR: Beecroft Construction P.O. Box 2643 Corpus Christi, TX 78403 TOTAL CONTRACT AMOUNT (September 27, 2011) $2,493,665.79 Motion No. 2009 -015 25% Limit Amount $623,416.45 Change Order No. 1 $49,900.00 Administrative Approval Change Order No. 2 $168,499.36 Motion No. M2012 -182 Change Order No. 3 $46,598.33 Administrative Approval Change Order No. 4 $13,985.40 Administrative Approval Change Order No. 5 $170,404.21 TOTAL All Change Orders $449,387.30 18.02% < 25% NEW CONTRACT PRICE $2,943,053.09 K kEngtneering DataExchangolCIerissaJlA irport1Ei0075 . CCIA Communications Center Perimeter Security%genda - Construction CO No. 55Change Order Summary - CCIA Communications Center Beecroft Change Order No. 5.doex CHANGE ORDER NO: CHANGE ORDER Department of Engineering Services City of Corpus Christi, Texas 5 PROJECT NO: 10030 CONTRACT TIME: 180 CD Operating Department: CCIA (Aviation) DATE: December 4, 2012 Name of Project: CORPUS CHRISTI INTERNATIONAL AIRPORT COMMUNICATIONS CENTER, PERIMETER SECURITY, STANDBY GENERATOR AND COMMERCIAL AVIATION LIGHTING UPGRADES (E10075) Contractor: Beecroft Construction, Ltd., PO Box 2643 (2222 Laredo) Corpus Christi, TX 78403 CHANGE ADD DEDUCT Refer to Attached Spreadsheet $ 170,404.21 For Breakdown of Items TOTAL NET: $ 170,404.21 Why was this change necessary? (If left off the plans and specifications, explain why) Refer to Change Order Tabulation Spreadsheet for breakdown. (Enclosed) How can similar changes be avoided in the future? Refer to Change Order Tabulation spreadsheet for breakdown. (Enclosed) A. CONTRACT PRICE .........................$ 2,493,665.79 B. TOTAL CHANGE ORDER (inc. current) ...... $ 449,387.30 C. NEW CONTRACT PRICE .....................$ 2,943,053.09 D. THIS CHANGE ORDER ......................$ 170,404.21 E. PERCENT TOTAL CHANGE (B /A) ............. 18.02% Project Engineer F. PREVIOUS ADDN'L TIME AUTHORIZED........ --150- Jeff Talbott, P.E. G. ADDN'L CONTRACT TIME THIS CHANGE ORDER. -96- H. TOTAL ADDITIONAL, TIME .................. -246- CITY OF CORPUS CHRISTI, TEXAS CONTRACTOR By: By: City Engineer f t� Title: / APPRp Operating Department Capital Budget Officer Legal Department DEPARTMENT OF ENGINEERING SERVICES CHANGE ORDER SUMMARY SHEET January 22, 2013 PROJECT: CCIA Communications Center, Perimeter Security, Standby Generator and Commercial Aviation Apron Lighting Upgrades (Project No. E10075) APPROVED: City Council Motion No. 2011 -216 on September 27, 2011 CONTRACTOR: Beecroft Construction P.O. Box 2643 Corpus Christi, TX 78403 TOTAL CONTRACT AMOUNT (September 27, 2011) $2,493,665.79 Motion No. 2009 -015 25% Limit Amount $623,416.45 Change Order No. 1 $49,900.00 Administrative Approval Change Order No. 2 $168,499.36 Motion No. M2012 -182 Change Order No. 3 $46,598.33 Administrative Approval Change Order No. 4 $13,985.40 Administrative Approval Change Order No. 5 $170,404.21 TOTAL All Change Orders $449,387.30 18.02% < 25% NEW CONTRACT PRICE $2,943,053.09 KAEngineering Data Exchange \Lynda \LEGISTARTY 13 \1 -Jan 22 \CCIA CO #5 \CO Summary. docx -ile : \ Mproject \councilexhibits \exhL7UU 15 \NUF(' C I PROJECT # E10075 NOT TO SCALE I CORPUS CHRISTI INTERNATIONAL AIRPORT CITY COUNCIL EXHIBIT COMMUNICATIONS CENTER, PERIMETER SECURITY, CITY OF CORPUS CHRISTI, TEXAS STANDBY GENERATOR AND COMMERCIAL DEPARTMENT OF ENGINEERING SERVICES AVIATION APRON LIGHTING UPGRADES PAGE: 1 of 1 = ^ 0 AGENDA MEMORANDUM First Reading for the City Council Meeting of February 12, 2013 852 Second Reading for the City Council Meeting of February 26, 2013 DATE: January 24, 2013 TO: Ronald L. Olson, City Manager FROM: Fred Segundo, Director of Aviation FredS @cctexas.com (361) 289 -0171 ext. 1213 Ordinance for authorization to ratify an amendment to the On- Airport Rental Car Concession and Lease Agreement with The Hertz Corporation. CAPTION: Ordinance authorizing the City Manager, or designee, to ratify an amendment to the On- Airport Rental Car Concession and Lease Agreement with The Hertz Corporation for the operation of a car rental concession at the Corpus Christi International Airport ( "Airport ") to exclude former Hertz subsidiary Simply Wheelz, L.L.C. as a party. PURPOSE: Due to The Hertz Corporation's divestment of a former subsidiary who should no longer be a party to The Hertz Corporation's On- Airport Rental Car Concession and Lease Agreement, the City and The Hertz Corporation desire to enter into an amendment to that On- Airport Rental Car Concession and Lease Agreement to formally agree that Simply Wheelz no longer is a party to that agreement. BACKGROUND AND FINDINGS: The City and The Hertz Corporation, a Delaware corporation, and its wholly owned subsidiary, Simply Wheelz, L.L.C., a Delaware limited liability company, doing business as Advantage Rent -A -Car ( "Simply Wheelz "), previously executed an On- Airport Rental Car Concession and Lease Agreement dated November 1, 2009. The Hertz Corporation sold Simply Wheelz effective December 12, 2012. Therefore, the City and The Hertz Corporation desire to enter into an amendment to that On- Airport Rental Car Concession and Lease Agreement to formally agree that Simply Wheelz no longer is a party to that agreement. ALTERNATIVES: No viable alternative exists. OTHER CONSIDERATIONS: The Hertz Corporation never operated the Advantage Rent -A -Car brand at the Airport, so the only necessary action is to amend the On- Airport Rental Car Concession and Lease Agreement to clarify that Simply Wheelz (doing business as Advantage Rent -A -Car) no longer is a party to that agreement. CONFORMITY TO CITY POLICY: This amendment supports compliance and accuracy of the City's legal documents. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Legal FINANCIAL IMPACT: ❑Operating ❑Revenue ❑Capital ®Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: RECOMMENDATION: Staff requests approval of Ordinance. LIST OF SUPPORTING DOCUMENTS: Ordinance Amendment to the On- Airport Rental Car Concession and Lease Agreement Hertz Letter — Sale of Simply Wheelz, LLC DBA Advantage Rent A Car Certification of Funds Page 1 of 2 Ordinance Authorizing the City Manager, or designee, to ratify an amendment to the On- Airport Rental Car Concession and Lease Agreement with The Hertz Corporation for the operation of a car rental concession at the Corpus Christi International Airport ( "Airport ") to exclude former Hertz subsidiary Simply Wheelz, L.L.C. as a party. Whereas, the City and The Hertz Corporation, a Delaware corporation, and its wholly owned subsidiary, Simply Wheelz, L.L.C., a Delaware limited liability company, doing business as Advantage Rent -A -Car ( "Simply Wheelz "), a company operating under the laws of the State of Texas, previously executed an On- Airport Rental Car Concession and Lease Agreement dated November 1, 2009 ( "Original Agreement "); Whereas, The Hertz Corporation sold Simply Wheelz effective December 12, 2012; Whereas, the City and The Hertz Corporation desire to enter into an amendment to the Original Agreement to formally agree that Simply Wheelz no longer is a party to that Original Agreement; Be it ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. That the City Manager, or designee, is hereby authorized to ratify an amended agreement with Hertz for the operation of a car rental concession at the Airport to exclude former Hertz subsidiary Simply Wheelz as a party, which amendment is attached hereto as Exhibit A. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of , 20137 by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Ordinance — Hertz Amendment to Orig Agmt 1- 215 -13 Chad Magill Colleen McIntyre Lillian Riojas Mark Scott Page 2 of 2 That the foregoing ordinance was read for the second time and passed finally on this the day of , 20137 by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb PASSED AND APPROVED, this the ATTEST: Armando Chapa City Secretary Ordinance — Hertz Amendment to Orig Agmt 1- 215 -13 Chad Magill Colleen McIntyre Lillian Riojas Mark Scott the day of Nelda Martinez Mayor , 2013. THE HERTZ CORPORATION 225 Broe Boulevard Park Ridge, NJ 07656 -0713 Telephone: (201) 307 -2474 January 18, 2013 Send via Federal Express Charlotte P. Yochem Senior Assistant City Attorney City of Corpus Christi Legal Department 1201 Leopard Street Corpus Christi, TX 78401 -2825 Dear Ms. Yochem: Linda Dravin Senior Paralegal Please find enclosed two (2) signed copies each of the First Amendment to the Rental Car Concession and Lease Agreement, and Amendment to the Rental Car Concession and Lease Agreement, between the City of Corpus Christi and The Hertz Corporation. Kindly have the Amendments signed on behalf of the City and return one fully executed original of each to my attention for our files. Very truly yours, Linda Dravin Senior Paralegal cc: Jackie Agan AMENDMENT TO THE ON- AIRPORT RENTAL CAR CONCESSION AND LEASE AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND THE HERTZ CORPORATION This amendment to an existing concession and lease agreement is made by and between the City of Corpus Christi (the "City ") and The Hertz Corporation, a Delaware Corporation. WHEREAS, the City and The Hertz Corporation, a Delaware corporation, and its wholly owned subsidiary, Simply Wheelz LLC, a Delaware limited liability company, doing business as Advantage Rent -A -Car ( "Simply Wheelz "), a company operating under the laws of the State of Texas previously executed an On- Airport Rental Car Concession and Lease Agreement dated November 1, 2009 ( "Original Agreement "); WHEREAS, The Hertz Corporation sold Simply Wheelz effective December 12, 2012; WHEREAS, the City and The Hertz Corporation desire to enter into this amendment to the Original Agreement to acknowledge that Simply Wheelz no longer is a party to that Original Agreement; NOW, THEREFORE, by execution of this amendment to the Original Agreement, the parties agree as follows, effective as of December 12, 2012: Section 1. Article XVII of the Original Agreement is deleted in its entirety and is replaced with the following: "ARTICLE XVII NOTICES All notice periods begin on the date the notice is mailed by certified mail, return receipt requested, and sent via facsimile or personally delivered. Any and all notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered as properly given if (1) sent by certified mail, return receipt requested, and (2) sent by facsimile transmission or via any nationally recognized overnight courier service, and addressed as follows: When to CI TY: Attention: Director of Aviation Corpus Christi International Airport '1000 International Drive Corpus Christi, Texas 78406 Phone: (361) 289 -0171 Fax: (361) 826 -4551 When to CCONCESSIONAIRE: Attn: Staff Vice Tres., Real Estate and (concessions The Hertz Corporation 225 Brae Boulevard Park Ridge, New Jersey 076664/13 Phone: (201) 3072771 Fax: (201) 307 -2689 Pagel of 2 Amendment to Original Agnit- Hertz 1 -15 -13 Section 2. "Concessionaire" shall refer only to The Hertz Corporation in the Original Agreement and shall not include Simply Wheelz and that Simply Wheelz no longer is a party to that Original Agreement. Section 3. The parties further agree that all terms and conditions of the Original Agreement not changed by this amendment remain the same and in full force and effect. IN WITNESS WHEREOF, the parties hereto have themselves or through their duly authorized officers executed this Amendment, to be effective upon execution by the City Manager. EXECUTED IN DUPLICATE ORIGINALS this day of , 2313, by the authorized representative of the parties. ATTEST: Armando Chapa City Secretary City of Corpus Christi, Texas Ron Olson City Manager CONCESSIONAIRE: The Hertz Corporation, a Delaware corporation By: Name: Simon Ellis Title: Staff Vice President, Real Estate and Concessions Date: -,-/ '; STATE OF NEW JERSEY COUNTY OF BERGEN This instrument was acknowledged Before me on Januaiy 13, 2013, by Simon Ellis, as Staff Vice 'resident, Deal Estate and Concessions of The Hertz Corporation, a Delaware corporation, on behalf of said corporation. �U/ —411-61411X Notary Public LINDA ORAVIN NOTARY PUBLIC OF NEW JERSEY MY COMMISSION EXPIRES JAN. 24, 2014 Page 2 of 2 Amendment to Original Aging- Hertz 1 -15 -13 THE HERTZ CORPORATION 225 Brae Boulevard Park Ridge, NJ 07656-0713 Telephone: (201) 307-2771 Send via Federal Express Charlotte P. Yochem Senior Assistant City Attorney City of Corpus Christi Legal Department 1201 Leopard Street Corpus Christi, TX 78401-2825 Dear Ms. Yochern: Simon Ellis Staff Vice President, Real Estate and Concessions This letter will confirm that The Hertz Corporation sold its interest in Simply Wheelz LLC dba Advantage Rent A Car on December 12, 2012. cc: Jackie Agan 0 AGENDA MEMORANDUM First Reading for the City Council Meeting of February 12, 2013 852 Second Reading for the City Council Meeting of February 26, 2013 DATE: January 23, 2013 TO: Ronald L. Olson, City Manager FROM: Fred Segundo, Director of Aviation FredS @cctexas.com (361) 289 -0171 ext. 1213 Ordinance authorizing the execution of a First Amendment to the On- Airport Rental Car Concession and Lease Agreement with each of the Rental Car Agencies located at the Corpus Christi International Airport, in consideration of a base rent to be offset as applicable by revenues collected via a Customer Facility Charge, each for a term of five (5) years. CAPTION: Ordinance authorizing the City Manager, or designee, to execute a First Amendment to the On- Airport Rental Car Concession and Lease Agreement with each 1) EAN Holdings, LLC, a wholly owned subsidiary of Enterprise Holdings, Inc. dba Alamo Rent A Car and National Car Rental ( "Alamo /National'), 2) Coastal Bend Rent -A -Car dba Avis Rent -A -Car ( "Avis "), 3) DTG Operations, Inc. dba Dollar Rent -A -Car and Thrifty Car Rental ( "Dollar /Thrifty "), 4) EAN Holdings, LLC, a wholly owned subsidiary of Enterprise Holdings, Inc. dba Enterprise Rent -A- Car ( "Enterprise "), and 5) The Hertz Corporation ( "Hertz ") to lease space in the Quick Turn Around Facility ( "QTA ") located at the Corpus Christi International Airport ( "Airport "), in consideration of a base rent to be offset as applicable by revenues collected via a Customer Facility Charge, each for a term of five (5) years. PURPOSE: Request authorization to amend the On- Airport Rent A Car Concession and Lease Agreement, allowing the incumbents to lease space in the recently constructed Quick Turn Around Facility. The term for each incumbent being five (5) years, and the original On- Airport Rental Car Concession and Lease Agreement will become coterminous with this Amendment. BACKGROUND AND FINDINGS: In April 2010 the City Council approved the implementation of a Customer Facility Charge of $3.50. This fee has been collected and used for planning, designing and construction of the QTA. A construction contract was awarded on March 2011 to BARCOM Commercial Construction. Phase I of the facility is complete and ready to move -in, allowing the RAC tenants to operate out of this new facility upon approval of this amendment. ALTERNATIVES: No viable alternative exists. OTHER CONSIDERATIONS: Not Applicable CONFORMITY TO CITY POLICY: The QTA Facility is part of the overall planned development of the Airport and its initiatives. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ® Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: RECOMMENDATION: Staff requests approval of Ordinance. LIST OF SUPPORTING DOCUMENTS: Ordinance DTG Operations, Inc. — First Amendment EAN Holdings, LLC (Alamo /National) - First Amendment EAN Holdings, LLC (Enterprise) — First Amendment Coastal Bend Rent -A -Car — First Amendment The Hertz Corporation — First Amendment Page 1 of 2 Ordinance Authorizing the City Manager, or designee, to execute a First Amendment to the On- Airport Rental Car Concession and Lease Agreement with each 1) EAN Holdings, LLC, a wholly owned subsidiary of Enterprise Holdings, Inc. dba Alamo Rent A Car and National Car Rental ( "Alamo /National "), 2) Coastal Bend Rent -A -Car dba Avis Rent -A -Car ( "Avis "), 3) DTG Operations, Inc. dba Dollar Rent -A -Car and Thrifty Car Rental ( "Dollar /Thrifty "), 4) EAN Holdings, LLC, a wholly owned subsidiary of Enterprise Holdings, Inc. dba Enterprise Rent -A- Car ( "Enterprise "), and 5) The Hertz Corporation ( "Hertz ") to lease space in the Quick Turn Around Facility ( "QTA ") located at the Corpus Christi International Airport ( "Airport "), in consideration of a base rent to be offset as applicable by revenues collected via a Customer Facility Charge, each for a term of five (5) years. Whereas, the City of Corpus Christi ( "City ") previously executed On- Airport Rental Car Concession and Lease Agreements with each Alamo /National, Avis, Dollar /Thrifty, Enterprise and Hertz dated November 1, 2009 ( "Original Agreement "); Whereas, the City is in the process of constructing a new consolidated service facility and fueling facility at the Airport, referred to as the QTA, to be used for fueling, cleaning, minor maintenance, staging, and storing of the rental car fleet; Whereas, the City and each Alamo /National, Avis, Dollar /Thrifty, Enterprise and Hertz desire to amend the Original Agreement to incorporate the use of the new QTA; Be it ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. That the City Manager, or designee, is hereby authorized to execute a First Amendment to the On- Airport Rental Car Concession and Lease Agreement with each Alamo /National, Avis, Dollar /Thrifty, Enterprise and Hertz to lease space in the QTA located at the Airport, in consideration of a base rent to be offset as applicable by revenues collected via a Customer Facility Charge, each for a term of five (5) years, which agreements are attached hereto as Exhibit A. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of , 20137 by the following vote: Nelda Martinez Kelley Allen Rudy Garza Ordinance — Combined all RACS1 -15 -13 Chad Magill Colleen McIntyre Lillian Riojas Priscilla Leal David Loeb Mark Scott Page 2 of 2 That the foregoing ordinance was read for the second time and passed finally on this the day of , 20137 by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb PASSED AND APPROVED, this the ATTEST: Armando Chapa City Secretary Ordinance — Combined all RACS1 -15 -13 Chad Magill Colleen McIntyre Lillian Riojas Mark Scott th day of , 2013. Nelda Martinez Mayor FIRST AMENDMENT TO THE ON- AIRPORT RENTAL CAR CONCESSION AND LEASE AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND EAN HOLDINGS, LLC WHEREAS, the City of Corpus Christi and EAN Holdings, LLC. a Delaware limited liability company and wholly owned subsidiary of Enterprise Holdings, Inc., doing business as Alamo Rent A Car and National Car Rental, a company operating under the laws of the State of Texas ( "Concessionaire ") previously executed an On- Airport Rental Car Concession and Lease Agreement dated November 1, 2009 ( "Original Agreement "); WHEREAS, the City is in the process of constructing a new consolidated service facility and fueling facility, referred to as the Quick Turn Around Facility ( "QTA') to be used for fueling, cleaning, minor maintenance, staging, and storing of the rental car fleet; WHEREAS, the parties hereto desire to amend the Original Agreement to incorporate the use of the new QTA; NOW, THEREFORE, the parties agree as follows to amend the Original Agreement by adding new Article XXVII I ( "Amendment ") as follows: Article XXVIII Quick Turnaround Facility A. Definitions: The following terms, when used in this Article XXVIII with the initial letter(s) capitalized, whether in the singular or the plural, shall have the following meaning. Capitalized terms not defined below shall have the meaning as set forth in the Original Agreement: "Airport": Corpus Christi International Airport. "Airport QTA Fund ": Fund designated by the Airport for CFCs collected by Concessionaire and paid to the Airport. "Amendment ": This First Amendment to the On- Airport Rental Car Concession and Lease Agreement that adds a new Article XXVIII. "Base Rent" or" Rent ": An amount net of CFCs required to offset the QTA costs as identified in Sections C and D below. "CFC" or "CFCs ": The Customer Facility Charge, as determined from time to time by the City as related to the QTA and required to be collected by the Concessionaire and the Other Concessionaires for all transactions conducted at the Airport. " City":The City of Corpus Christi, Texas. Page 1 of 16 QTA Amendment- National 11 -1 -12 "Common Use Area(s )".All facilities and land contained in the QTA that are available for use by Concessionaire and the Other Concessionaires for their common use as identified in Exhibit A and Exhibit C attached hereto. "Concessionaire ": Any individual or business entity that has an existing lease or concession agreement with the Airport for the purpose of renting vehicles to Customers who o riginate from Air port p roperty, as s tated in Co rpus Ch risti Cit y O rdinance N o. 028575. "Date of Beneficial Occupancy': Following issuance of a Certificate of Occupancy, the date upon which the tenant substantially occupies the premises and conducts the primary activities associated with the operation of the concession. "Director" or "Airport Director': The Director of Aviation employed by the City or his or her designee. "Exclusive Use Areas) ":AII facilities available and leased only to Concessionaire and no other for Concessionaire's exclusive use as identified in Exhibit B attached hereto. 'Fuel System': Shall include all the fuel storage tank(s), product piping, vent piping, fuel dispensers, nozzles, hoses, Stage I and II vapor recovery equipment, if applicable, under dispenser containment sump, turbine sump, fill port, spill buckets, and all leak detection devices. "Improvements ": Buildings, landscaping and all other permanent improvements constructed or modified from time to time at the premises. "Heavy Vehicle Maintenance ". Any type of body work or work performed on the vehicle drivetrain, and anything beyond permissible minor maintenance. "Land Rent ": Land Rent shall be that amount set by the City as rent for the land occupied under this Amendment which will be based on an appraisal by a Registered Third Party Appraiser based on comparable facilities to be updated every five (5) years beginning in April, 2016. "Market Share or Market Share Percentage ": The amount, expressed as a percentage, equal to the quotient of (i) Concessionaire's on- Airport Gross Revenues as defined in Article IV, Section (i) of the Original Agreement during the immediately preceding twelve (12) months' period, divided by (ii) the sum of the on Airport Gross Revenues of Concessionaire and the Other Concessionaires during such twelve (12) months' period. "Operations Manual The manual that will be developed by the City and Concessionaires upon occupancy of the QTA that defines the daily operating procedures for conducting operations at the QTA, the use of Common Use facilities, security and safety procedures that will be enacted, and conflict resolution processes. The Operations Manual is subject to amendment and change. The most current master version will be kept in the office of the Director. "Ordinance": Corpus Christi Ordinance No. 028575, Amending the Code of Ordinances, Chapter 9, "Aviation," by Creating New Section 9 -68, Entitled "Car Rental Customer Facility Charge," passed by the Corpus Christi City Council on April 20, 2010. Page 2 of 16 QTA Amendment - National 11 -1 -12 "Original Agreement ": The previously executed On- Airport Rental Car Concession and Lease Agreement by and between the City and Concessionaire dated November 1, 2009. "Other Concessionaires ": All on- Airport rental car Concessionaires that are parties to an Original Agreement with the City, other than Concessionaire, and any Replacement Rental Car Company (as defined below). .QTA" or "Property ": Means the City -owned Quick TurnAround Facility Area as depicted on the attached Exhibit A, Exhibit B, and Exhibit C attached hereto. "Replacement Rental Car Company' A rental car company who has executed an Original Agreement sublease or assignment agreement, approved in writing by the Director, to replace Concessionaire or an Other Concessionaire that defaulted under a lease with the City under terms similar to the Original Agreement. "Tenant Improvements ": Any improvements, furniture, trade fixtures or equipment construct o r p laced u pon t he P roperty by Concessionaire, 0 ther Co ncessionaire, o r Replacement Rental Car Company or the City. "Vehicle Stacking Spaces ": Those Common Use Areas as depicted on Exhibit A, also referred to herein as queuing lanes, for use in common by Concessionaire for parking its vehicles for use as rentals at the Airport in the QTA. The Spaces will be subject to adjustment as called for in this Amendment. "Vehicle Storage Spaces ": Those Common Use Areas as depicted on Exhibit A, for use in common by Concessionaire for storing its vehicles for use at the QTA. The spaces will be subject to adjustment as called for in this Amendment. B. Additional Premises The City does lease to Concessionaire, and Concessionaire does lease from the City, the additional property at the QTA as depicted on Exhibit A, Exhibit B, and Exhibit C, for Concessionaire's Exclusive Use and Common Use Areas. An Operations Manual will be on file in the Director's office and may be amended from time to time that will define the operating procedures that will be in place for use of the Additional Premises. 1} The Common Use Areas shown on Exhibit A and Exhibit C as allocated according to Section E below; shall include the following: a. Lanes for queuing Concessionaire's rental car fleet at the QTA for: i. Fueling ii. Cleaning of vehicles iii. 12 fuel dispensing bays iv. 3 car wash bays b. Employee parking spaces G. In- fleeting and out - fleeting parking lanes d. Short term vehicle storage Page 3 of 15 QTA Amendment - National 11 -1 -12 e. Fuel farm serving QTA 2) The Exclusive Use areas shown on Exhibit B include the following: a. Eight hundred fifty (850) square feet of office space for each Concessionaire's exclusive administrative office purposes; b. Seven hundred seventy five (775) square feet for maintenance bay for each Concessionaire's exclusive use. C. Base Rent; 1) Concessionaire shall have Exclusive Use and Common Use of the portions of the Property as depicted in attached Exhibits A, B, and Cfor Concessionaire's purposes and subject to reallocation as provided in Section E below. 2) Base Rent of the Exclusive Use and Common Use Areas as depicted in Exhibits A, B, and C attached shall be calculated on an annual basis. The Base Rent requirement shall be the sum of the following expenses, all of which are eligible: a. All costs of construction whether funded with cash or any borrowing instrument b. Debt service coverage requirement G. Land rent d. Major maintenance costs e. Repair and replacement account funding f. City provided insurance related to the QTA g. Utility costs associated with the QTA h. Direct labor costs for maintenance and operation of the QTA L Operating and maintenance costs associated with operating the QTA j. Administrative costs associated with the management of the QTA k. All permits and licenses directly related to the QTA I. Landscaping on land leased as part of the QTA m. Bad debt from vendor or concessionaire related to the QTA n. Other reasonable costs incurred by the City relating to operation of the QTA o. A deficit of prior year(s)' CFC collections applied toward Base Rent CFCs collected shall first be applied to offset the expenses in the priority identified above. T he ex penses I isted abo ve au thorized by t he O rdinance, inc orporated herein by reference, apply only to Concessionaire's operations at the QTA and not to Concessionaire's operations at any other location at or outside of the Airport. In the event the total CFCs collected are available to fully offset the expenses in any budget year, then no Base Rent will be due. If the total CFCs collected are not sufficient to offset the expenses as identified above, Base Rent will be established for any deficit in the total amount required. Base Rent will be charged based on the following formula: Fifty percent (50 %) will be divided equally among the Concessionaires based on their share of Exclusive Use Area. Payment for the portion of Base Rent Page 4 of 16 QTA Amendment National 11-1-12 charged based on equal allocation among Concessionaires is due and payable on the first day of the month for which rent is due. Following the completion of the contract year and the final audit by the City, the City will recalculate the requirement for each Concessionaire against the actual Base Rent and CFCs received and if any shortfall payment is due the City, the City will invoice Concessionaire for any amounts due and payment shall be due and payable on the fifteenth (15th) of the month following invoicing. If the Base Rent payment, less CFCs, paid to the City during the year exceeds the amount due, the City will issue a credit to the Concessionaire for the amount due by the fifteenth (15th) of the month, subject to the process defined in Section 3 of Exhibit "D" to the Original Agreement. 2. Fifty percent (50 %) will be based on Market Share of Concessionaires. Payment for the portion of The Base Rent based on Market Share that will be effective for that contract year will be projected at the beginning of the contract year based on Market Share and payment will be due and payable for this portion of the Base Rent on the first day of the month for which rent is due. Following the completion of the contract year and the final audit by the City, the City will recalculate the Market Share Base Rent requirement based on actual payments and CFCs collected and remitted. If any payment is due the City, the City will invoice Concessionaire for any amounts due and payment shall be due and payable on the fifteenth (15th) of the month following invoice. If the estimated Base Rent, less CFCs, payment paid exceeds the amount due, the City will issue a credit to the Concessionaire for the amount due on the fifteenth (15th) of the month, subject to the process defined in Section 3 of Exhibit °D" to the Original Agreement. Notwithstanding the foregoing, to whatever extent possible, if the total CFCs collected are not sufficient to offset the Base Rent expenses set out above, such shortfall will be calculated at the end of the fiscal year and will be rolled over to the next fiscal year so that, to the extent possible and at the discretion of the Airport Director, Concessionaire will not be required to submit payment to the City for such shortfall but, instead, may overcome such shortfall with a future surplus of CFCs collected. Repairs required as a result of direct damage by Concessionaire employees, agents, designees, or contractors, normal wear and tear excepted, will be charged back to the responsible Concessionaire. A minimum of sixty (60) days prior to the commencement of occupancy and for all subsequent fiscal years, the City shall prepare an expense budget identifying the expenses in the same manner as identified above and a projection of the CFC revenues anticipated to be collected and shall submit such expense budget to the Concessionaire for review and comment. Following consultation with Concessionaire, the City will establish the Base Rent that will be effective for that fiscal year and may adjust the amount of any CFC during the term of the Agreement to cover expenses and to avoid any contingent Base Rent. The Ordinance states in pertinent part: "Section 9- 68.03: Customer Facility Charge Page 5 of 16 QTA Amendment - National 11 -1 -12 (B) The CFCs must be used to pay, or reimburse the Airport, for the costs associated with the design, acquisition, planning, development, construction, operation, maintenance, repair, equipment, and replacement of facilities and related improvements made use of in or connected to the business of renting cars at the Airport. Any or all of the CFCs collected may be pledged to the punctual payment of debt service on obligations (and any other pecuniary obligation) issued by or on behalf of the City for the benefit of the Airport for the cost of the car rental portion of facilities, parking lots, buildings, and other improvements, and to create and maintain reasonable operating and maintenance reserves as well as capital asset repair and replacement reserves. Eligible costs for the car rental facilities and related improvements include all costs, fees, and expenses associated with the design, acquisition, planning, development, construction, equipping, operation and maintenance, capital repair and replacement, and site improvement. Nothing herein shall be construed to make fees, costs, or expenses incurred in tenant improvements for space exclusively used by a Car Rental Company ineligible. "Equipping" for the purposes of this section is limited to providing necessary equipment within the common use areas and car maintenance bays of the car rental facilities. "Operation and maintenance" for the purposes of this section does not include fees, costs, or expenses incurred for or associated with consumables, such as paper supplies, oils and lubricants, or other products used in the business of the car rental facilities." "Section 9- 68.05: Collections. (A) All CFCs collected by all Car Rental Companies are and shall be funds held by the Car Rental Companies in trust for the City for the benefit of the Airport and recognizing the third party beneficiary status of any holders of any debt obligations issued by the City for the benefit of the Airport. Car Rental Companies and their agents hold only a possessory interest in theCFCs and no equitable interest. All Car Rental Companies shall segregate, separately account for, and disclose all CFCs as trust funds in their financial statements and shall maintain adequate records that account for all CFCs charged and collected. Failure by a Car Rental Company to segregate the CFCs shall not alter or eliminate their trust fund nature. The Airport shall have the right to audit the CFC records of a Car Rental Company upon reasonable notice. (B) All Car Rental Companies shall remit all CFC funds that were collected or should have been collected from its Airport car rental customers on a monthly basis to the Airport. The CFCs shall be remitted on the 20'hday of the month following the month the CFCs were collected. Failure of a Car Rental Company t o s trictly c omply with t his s ubparagraph s hall be c onsidered a material breach of the Car Rental Company's authorization to do business at the Airport." "Section 9- 68.06.Annual Rate Adjustments. (A) Each April, the Airport Director shall recalculate the Customer Facility Charge to be effective June 5 of the same year to recover the amount equivalent to the remaining portion of the amount pledged by the City to the Page 6 of 16 QTA Amendment-National 11 -1 -12 payment of debt service on obligations (or any pecuniary obligation related thereto) issued by or on behalf of the City for the benefit of the Airport. The Airport Director shall consider any written comments of the Car Rental Companies regarding the adjustment, but the Airport Director, with the concurrence of the Director of Financial Services, has the sole and final determination of the amount. (B) Notwithstanding anything herein to the contrary, the Customer Facility Charge shall not be less than $3.50 per Customer per Transaction Day." Following the completion of the year -end audit, in the event that CFC collections exceed the projected Base Rent requirement plus any projected major maintenance or projected capital investment requirements, the City will reimburse Concessionaire from the Airport QTA Fund for any Base Rent, as detailed in Section C(2) herein, actually paid by Concessionaire in prior year(s), in the form of a check to be paid by the twentieth (20'h) day of the following month, during the term of this Amendment, so that Concessionaire is made whole as to their costs that the Ordinance authorizes to be paid by CFCs. D. Allocation and Reallocation of numbered queuing lanes as shown on ExhibitA: 1 } Concessionaire numbered queuing lanes will be allocated on an annual basis effective Au gust 1 o f e ach y ear o f t he Agreement a ccording to t he respective Market Share Percentages for the previous twelve (12) month period. Allocation of rows will be made in full row allocation only. A single row will not be allocated to more than one Concessionaire. In order to achieve an additional row upon annual re- allocation, a Concessionaire must have a market share percentage that commands 60% or more of a full row. 2) The Airport Director, in consultation with Concessionaire, shall annually determine the allocation of each Concessionaire's numbered queuing lanes , based on the previous twelve (12) month period market share and in keeping with full row allocation as detailed in E(1) above. The Airport Director's determination shall be final and binding, provided, however, that if the Airport Director determines that a Concessionaire's allocation is to increase, that Concessionaire may decline the reallocation and maintain their existing allocation. If a Concessionaire declines an increased allocation, it will be at the discretion of the Director to reallocate to the other Concessionaires based on the other Concessionaires' requests, but under no circumstance will there be less than a 100% allocation of all available numbered queuing lanes. Concessionaire will be provided an updated Exhibit A each year of this Amendment that will show the annual allocation by Concessionaire. E. Exhibits: If the Property is reallocated by the City, the Exhibits to this Agreement that are affected by such reallocation shall be superseded by replacement Exhibits provided by the City. F. Required and Permitted Uses. 1) The Property shall be used by Concessionaire only for the fueling, vehicle stacking, vehicle storing, washing, cleaning, detailing, and minor maintenance of Concessionaire's vehicle inventory used in connection with its Original Agreement Page 7 of 16 QTA Amendment-National 11 -1 -I2 at the Airport, and uses incidental and reasonably related thereto. Notwithstanding the foregoing requirement, Concessionaire may use the Property for the fueling and washing of Concessionaire's vehicle inventory not rented at the Airport facility only to the extent that such fueling and/or washing does not cause undue inconvenience or maintenance costs to the other Concessionaires or the Airport. Upon complaint by the Airport or a Concessionaire of such undue inconvenience or maintenance costs, the Airport Director has sole discretion to allow or disallow fueling and/or washing of Concessionaire's vehicle inventory not rented at the Airport facility. Examples of permissible minor maintenance include services such as oil changes, tire replacement, braise maintenance, windshield repair, and vehicle fluid replacement. Any other maintenance beyond this general description performed at the QTA is not permitted except as expressly authorized in this Agreement or in writing by the Airport Director. The Airport Director will have sole discretion to authorize maintenance other than what is identified in this Agreement and will take into consideration the impact of any such requests on the Concessionaire considering environmental liability, public perception, and overall airport operations. If the Airport Director authorizes maintenance other than what is identified in this Agreement for one Concessionaire, the Airport Director will authorize such maintenance in writing to all Concessionaires. 2) The Property shall not be used for any other purpose, and specifically shall not be used for Heavy Vehicle Maintenance, storage of any vehicles used in conjunction with any off - Airport rental car concession, storage of out -of- service and damaged vehicles for longer than twenty one (21) calendar days, and sales of new or used vehicles, o r au ctions o r I iquidation s ales. The Air port D irector, in h is /her s ole discretion, may allow occasional extended storage period for damaged vehicles, when the Airport Director agrees such extension is necessary due to extenuating circumstances identified by Concessionaire. 3) If any governmental license or permit, other than a certificate of occupancy, shall be required for the proper and lawful conduct of Concessionaire's business on the Airport, Concessionaire shall procure and maintain such license or permit, at its sole cost and expense, and shall submit the same, upon request, for inspection by the City. Concessionaire shall at all times comply with terms and conditions of each such license or permit. However, City shall be responsible to comply with all regulations, laws, and ordinances and shall obtain all necessary licenses and permits required to operate the QTA, including the fueling facility and wash bays, and City shall be responsible for compliance with all applicable regulations regarding reporting requirements for the QTA, including the fueling facility. 4) Compliance with Laws: Concessionaire shall not use or permit the Property, or any part thereof, to be used in whole or in part for any purpose other than as set forth above, nor for any use, operation or activity in violation of any present or future laws, ordinances, general rules or regulations at any time applicable thereto of any public or governmental authority. In the event that compliance reporting is required. Concessionaire agrees to make all reasonable efforts to cooperate with the City in providing any required information. G. Fueling Facilities and Charges: Page S of 16 QTA Amendment- National 11 -1 -12 1) City agrees to purchase and have delivered to the Property the required fuel to be utilized by the Concessionaire for the purpose of conducting the concession operation. Concessionaire agrees to purchase and use only the fuel from the fueling station at the Property for all vehicles used as rental vehicles at the Airport. Failure to purchase fuel from the QTA shall be considered a material default under the terms of this Agreement; unless such fuel in unavailable from the City or if the City provides prior written consent. 2) The cost per gallon (U.S. Gallon) charged to Concessionaire will be based on the City's contract cost per gallon (including all applicable taxes, surcharges, delivery charges, fees and all discounts and volume rebates obtained by City) plus five cents ($0.05) per gallon. 3) City shall make all good faith efforts to obtain an acceptable grade and quality of fuel at the lowest cost available and have an adequate fuel supply available at all times unless the availability of fuel is disrupted due to reasons beyond the reasonable control of the City. 4) City will provide Concessionaire fuel keys in sufficient quantity reasonable to allow Concessionaire to fuel its vehicles without disruption as determined by the Airport Director in consultation with the Concessionaire, which activate both the fuel pumps as well as the entrance and exit gates. City's fuel system will track fuel dispensed with a computerized fuel management system. Any shortages or variations of inventory not directly attributable to the actions of the City will be charged to Concessionaire based on Market Share if the shortage cannot be reconciled. 5) City will invoice Concessionaire monthly for the fuel dispensed at the QTA by Concessionaire into its vehicle inventory, subject to Section G (1) herein.The invoice shall list the total amount of the gallons of fuel pumped by the Concessionaire for the preceding month, applicable taxes and destination charges, the price per gallon, and the $0.05 dispensing fee per gallon due to the City. f) Concessionaire shall pay the invoice on or before the fifteenth (15th) day of the month following, the month for which fuel was provided, pursuant to Article IV(e) of the Original Agreement Failure to pay invoices in a timely manner may result in City denying access to t he f uel system (deactivating Concessionaire's f uel keys), in addition to other remedies provided for in the Original Agreement, until all amounts owed to City are paid in full, though not without notice and opportunity to cure pursuant to Article XIII g. of the Original Agreement. In the event that the Concessionaire desires to pay the invoice by credit card, any costs associated with processing the credit card payment will be added to the invoice and shall be remitted to the City in addition to the payment due. Failure to make payment following notice as called for in the Original Agreement shall constitute a default under the terms of the Original Agreement and the City will have the rights associated with Article XIII of the Original Agreement. 7) A security deposit in the form of a bond, certified check, cashier's check, or other form acceptable to the City equal to two (2) months' average fuel pumped for the previous six (6) months or if six (6) months of data is not available, the two (2) months of the average of the available data will be required prior to the activation of Concessionaire's access to the fuel system. If Concessionaire does not provide a Page 9 of 16 QTA Amendment National 11 -1 -12 reasonable estimate for the purpose of establishing the security deposit requirement, the City will set the security deposit amount required at its sole discretion.City shall draw against such security deposit when Concessionaire does not remedy payment after notice and opportunity to cure set forth above in subsection (6). Concessionaire will be required to restore the security deposit balance to the required amount within five (5) working days of written notice of draw down. 8) City agrees to provide regular grade unleaded fuel to the Property on a timely basis. 9) Concessionaire agrees to use the fueling system and all associated apparatus in accordance with all safety instructions and shall immediately notify Airport personnel in writing, as outlined in the Operations Manual, of any safety or hazardous conditions that may exist. City or its contractor shall provide safety training regarding the fueling facility to Concessionaire prior to date of occupancy of the QTA by Concessionaire. Concessionaire is responsible for and agrees to hold City harmless for Concessionaire's misuse or negligent use or operation of the fueling system and any damages or injuries incurred as a result of such misuse or negligent use. H. Maintenance, Utilities, Security, and Custodial Services for QTA Property 1) Maintenance of Property - Except where maintenance required exceeds that associated with normal wear and tear and is a result of the negligence of Concessionaire, its employees, agents, contractors and invitees, City agrees that during the term of this Agreement it shall keep, maintain and repair the Property, including Concessionaire's Tenant Improvements in its Exclusive Use Area and the cost for performing such services shall be included in the Base Rent as outlined in this Amendment. Concessionaire hereby expressly agrees at all times during the term of this Agreement to make all reasonable efforts to cooperate with City in keeping the Property in a clean, maintained, and in a sanitary condition. City agrees to perform all required maintenance of City's Fuel System. City shall also ensure that monthly leak detection is fully operational and in compliance with all local, state, and federal laws, regulations, and ordinances governing the operation of such Fuel System. Concessionaire shall have no responsibility to remove or permanently close the fuel storage tanks installed by the City. Concessionaire shall have no responsibility for City's maintenance, City's leak detection, or City's operation of the City's Fuel System. Concessionaire shall not be liable to the City or any regulatory agency or agencies having jurisdiction over the operation of City's Fuel System for the violation of any local, state, and federal laws governing the operation of such Fuel System notwithstanding Concessionaire's responsibility as stated in Section H(11) herein. Concessionaire shall not be responsible for the release and clean -up of any Hazardous Substance as defined herein from the Fuel System, except when caused by acts or omissions of Concessionaire. Concessionaire shall not be deemed to be the operator of City's Fuel System, as the term "operator, is defined in any local, state, or federal laws governing the operation of the Fuel System. 2) Utilities- City shall provide standard heat, electricity, and air conditioning in the Exclusive and Co mmon U se Ar eas o n t he Q TA P roperty. P ayment f or t hese services shall be paid by Concessionaire as part of the Base Rent. In cases where Page 10 of 16 QTA Amendment National 11 -1 -12 the City furnishes and delivers natural gas, electricity or water /sewer to the Property, the City does not guarantee the continuity or sufficiency of such supply, but the City will make reasonable efforts within the City's control to ensure such delivery. The City will not be liable for interruptions or shortages or insufficiency of supply or any loss or damage of any kind or character occasioned thereby if the same is caused by accident, act of God, fire, strikes, riots, war, inability to secure a sufficient supply from the utility company furnishing the City, or any other cause. Whenever the City shall find it necessary for the purpose of making repairs or improvements to any utility supply system it shall maintain, following consultation with Concessionaire, it shall have the right to suspend temporarily the delivery of natural gas, electricity or water. However, City agrees to make reasonable efforts to cause minimal disruption when possible. 3) Information Technology and Telephone Services: Concessionaire shall be responsible, at its sole cost, for providing all telephone and data services for its use and for obtaining any necessary permits. Systems installed by one Concessionaire shall not adversely affect other Concessionaires, tenants, or City. 4) Security of Property- City shall coordinate and enforce secured access to the Property for Concessionaire. Concessionaire shall abide by all security directives of the City. J. Customer Facility Charge ( "CFC "): Concessionaire is required to collect and remit to the City within twenty (20) calendar days following the end of the month in which the fee is collected, the total CFCs on all vehicle rental transactions originating at the Airport. City hereby agrees that during the term of this Agreement, CFC revenues collected by Concessionaire and remitted to City shall be used to offset Concessionaire's equal allocation of Base Rent and Market Share Base Rent as called for in this Amendment. If for any reason the CFC's collected, or any portion thereof, are insufficient to cover anticipated expenses identified in this Amendment, then any deficiency in the amounts otherwise owed by Concessionaire to City under this Amendment shall be paid to City by Concessionaire as part of Base Rent as calculated in accordance with this Amendment during the applicable contract year. The City may adjust the amount of the CFC during the Term of this Amendment following consultation with the Concessionaire. K. Delinquency Charge: Concessionaire agrees that in the event payments to the City for any fees and charges are not received by the City on or before the respective due dates, as set forth in this Amendment, Concessionaire shall pay to the City a delinquency charge of one and one half percent (1- 112°/x) of the amount due to City, for each month, calculated daily, that the amount due remains unpaid. However, the City agrees to provide written notice of such delinquency prior to assessing such charge for a first occurrence. Payments due the City shall be received by the City only on normal business days, Monday through Friday, and shall not be considered late if the date due falls on a weekend or legal City holiday provided payment is received on the next business day. A yearly schedule of City holidays shall be provided to Concessionaire upon request. Payment by Concessionaire and acceptance by City of a delinquent charge shall not be construed as a waiver or forfeiture of any other rights or remedies of the City contained elsewhere in this Page 11 of 16 QTA Amendment- National 11 -1 -12 Agreement, or as provided by law. For the purposes of this section, the date payments are received by City shall be the U. S. Postal Service cancellation date on the envelope transmitting the payment, or the date such payment is received by an authorized representative of the City if the payment is hand delivered. In the event of a dispute as to the amount to be paid, the City may accept without prejudice the sum tendered and, if a deficiency is determined, the foregoing delinquency charge shall apply only to such deficiency. The City may waive, for good cause, in its sole discretion, any delinquency charge upon written application of Concessionaire. L. Insurance: With regards to the QTA and any other property described in this Amendment, Concessionaire agrees to obtain and maintain all insurances as described in Exhibit "E" to the Original Agreement and shall name the City as additional insured as its interests appear hereunder for liabilities arising out of the conduct of Concessionaire, its officers, employees or agents for the Commercial General Liability and Business Auto Liability Insurance, with a waiver of subrogation in favor of the City for worker's compensation. Concessionaire shall be responsible to obtain all property insurance to insure Concessionaire's own property. However, the "Environmental Impairment Liability" description in Exhibit E is modified to read as follows: Environmental Impairment Liability to include $1,000,000 per claim Broad Form Pollution Liability Coverage Third Party Clean Up Concessionaire's Environmental Impairment policy coverage applies only to claims, damages, suits, judgments that are due to the negligence or wrongful acts of concessionaire, its officers, employees or agents. Concessionaire's Environmental Impairment policy coverage does not apply to any claims, damages, suits, judgments, clean up that are due to the acts of the City or any third -party contracted by the City to operate the QTA. City shall obtain the following insurance coverage to cover the City's exposures for the QTA: Property insurance for City owned facilities; and Storage Tank Liability to cover only City's liability exposures. M. Condition of the Property: Except as may be expressly provided elsewhere in this Agreement, the taking of possession of the Property by Concessionaire shall in itself constitute acknowledgment that the City shall not be obligated to make any Tenant improvements or modifications thereto. Concessionaire shall not be liable for any pre - existing conditions, latent defects, or damage not caused by Concessionaire. Concessionaire shall have no liability arising out of or in any way relating to the existence of any hazardous materials placed on, in or under the Property by any person or entity other than Concessionaire or any person or entity acting for, by or through Concessionaire or with Concessionaire's permission or acquiescence Page 12 of 16 QTA Amendment National 11 -1 -12 N. Reserved Easements: The City reserves to itself and the right to grant to others in the future nonexclusive utility easements (including easements for construction, maintenance, repair, replacement and reconstruction) over, under, though, across, or on the Property in locations that will not unreasonably interfere with Concessionaire's use thereof. The City retains all mineral rights on the Airport property. O. Obligations of the City: The City agrees that use of the Property shall be limited to rental car companies with an On- Airport Rental Car Concession and Lease Agreement executed with the City. City reserves the right to retain third parties to operate, repair and maintain the Property, including without limitation, to operate and maintain the fueling system. P. Default: Either party may terminate the use of the QTA for other party's noncompliance of any terms of the Original Agreement or for noncompliance with terms of this Amendment, upon failure to cure after issuance of a thirty (30) days written notice. If this Amendment is terminated for Concessionaire's noncompliance with the terms of this Amendment or for Concessionaire's noncompliance with the terms of the Original Agreement and this Amendment, then the Concessionaire shall be liable to City for payment of remaining equal rent payments for the remainder of the Original Agreement term. City shall invoice and Concessionaire shall remit payment within thirty days for such remaining rental payments. In the event City subleases the Exclusive Use Areas to another concessionaire as a result of any Default termination, City will apply any rent received against the rent obligations of Concessionaire, but in no circumstances, will the amount applied exceed the total rent obligation. Q. Effective Date and Term: 1) The Effective Date of this Amendment is , 20, subject to final City Council approval. Notwithstanding that, Concessionaire may occupy the Property on the date the Certificate of Occupancy is issued by the City Building Official for the Property or upon the Date of Beneficial Occupancy, whichever occurs first. As part of the transition plan, (described in Article IV (q) of the Original Agreement), from the existing Service and Maintenance Facilities ( "Facilities ") to the QTA, if Concessionaire occupies the QTA before the Effective Date, Concessionaire shall continue to pay rents for the existing Facilities under the Original Agreement through the close of business the day before the Effective date. Beginning on the Effective Date, rent and fees shall be paid pursuant to the QTA -based annual budget. As of the close of business the day before the Effective Date, rents for the existing Facilities shall cease. However, notwithstanding the foregoing, Concessionaire shall continue to pay full rent for the existing Facilities until said existing Facilities are completely vacated by Concessionaire. Upon the Effective Date of this Amendment, the Term of the Original Agreement shall be extended for a new base period such that the Term of the Original Agreement and this Amendment are identical and such Term shall be extended for a new base period of five (5) years commencing on the Effective Date and ending on the last day of the fifth (5th) full fiscal year thereafter ( "Base Page 13 of 16 QTA Amendment- National 11 -1 -12 Term "). Upon the Effective Date of this Amendment the use of "Term" and "Base Term" shall apply to the Original Agreement and this Amendment. 2) Renewal Option: Upon the expiration of the Base Term, and upon the mutual agreement of the City Manager or his designee and Concessionaires not considered to be in default under the terms of the Amendment or the Original Agreement, Concessionaire will have two (2) separate, successive options (each a "Renewal Option ") to extend the term for additional periods of five (5) years (each a `Renewal Term "). The first Renewal Term will commence upon the expiration of the Base Term. Each successive Renewal Term will commence upon the expiration of the previously exercised Renewal Term. The first Renewal Option, upon the mutual agreement of the City Manager or his designee and the numeric majority of all Concessionaires not considered to be in default under the terms of the Amendment or the Original Agreement, may be exercised by written notice from Concessionaire to the City Manager or his designee not later than six (6) months prior to the expiration of the Base Term. Subsequent Renewal Options may be exercised by written notice from Concessionaire to the City Manager or his designee not later than six (6) months prior to the expiration of the previously exercised Renewal Term. Each Renewal Term will be upon the same terms and conditions as during the Base Term, except as otherwise provided. 3) Termination: Concessionaire may terminate the Original Agreement and this Amendment upon the expiration of the initial Base Term or any Renewal Term with no further obligations other than what is contained in the Original Agreement and this Amendment. 4) Upon the Effective Date, the Minimum Annual Guarantee ( "MAG ") payments will be recalculated to eighty -five percent(85 %) of ten percent(10 %) of the average of the most i mmediate p rior twelve ( 12) m onths o f Gross R evenues as s uch t erm i s defined in the Original Agreement. At the commencement of each exercised Option period, the MAG for any exercised option periods shall also be recalculated at eighty -five percent (85 %) of ten percent (10 %) of the average of the most immediate prior twelve (12) months Gross Revenues at the commencement of each option period. In the event that extraordinary conditions arise that will significantly impact the operations of Concessionaire, at the discretion of the Airport Director, the City agrees to consult with Concessionaire on the potential for adjustment of the MAG. Concessionaire agrees to comply with any request to provide adequate background information detailing the basis for the request and present the same to the Airport Director for review. Any adjustments will be at the sole discretion of the City. 5) The right granted in the Article VI of the Original Agreement with respect to Concessionaire's use or construction of underground or aboveground storage tanks is explicitly repealed. Concessionaire shall not have right to use or construct any existing underground storage tank or aboveground storage tank following the effective date of this amendment. 6) Concessionaire must vacate the Service and Maintenance Facility Premises allocated under the Original Agreement for service and maintenance facilities at the Airport within two (2) weeks of written notification from the Airport Director. City will remove all improvements from the existing facilities and if remediation is required, Page 14 of 16 QTA Amendment - National 11 -1 -12 the cost of any such remediation shall be the responsibility of the Concessionaire or entity that caused the requirement for remediation. City will consult with Concessionaire as to the scope of remediation services required; however, it is agreed that all remediation will be sufficient to meet or exceed and local, State, and/or Federal requirements. Concessionaire will be notified of the improvement removal process and will be given the opportunity to be present at the removal, testing and remediation upon the Premises. Upon completion of the remediation, any payment due shall be remitted to the City on the fifteenth (15th) of the month following invoice. If there is any property remaining after such date that must be disposed of by the demolition contractor at an additional expense, Concessionaire shall pay all costs for disposal if such property is not removed after ten (10) days' written notice by Airport Director to Concessionaire. 7) Article III Sections k, I, m and Exhibit C, of the Original Agreement are repealed upon effective date of this Amendment. Gasoline dispensed in accordance with the Terms of the Amendment at the Property shall be excluded from Article VI n of the Original Agreement. 8) All other terms and conditions of the previously executed Original Agreement between the parties which are not inconsistent herewith, shall apply to the use of the additional Property, and shall continue in full force and effect. R. Parking Space Sales Tax: Pursuant to Article I11(j) of the Original Agreement, Concessionaire shall pay monthly rent to the City for allocated Parking Spaces. As of the Effective date of this Amendment, Concessionaire shall, in addition to paying rent on said allocated Parking Spaces, also pay the applicable sales tax per month for each parking space allotted to Concessionaire. IN WITNESS WHEREOF,the parties hereto have themselves or through their duly authorized officers executed this Amendment, to be effective upon execution by the City Manager. EXECUTED IN DUPLICATE ORIGINALS this authorized representative of the parties. ATTEST: Armando Chapa City Secretary QTA Amendment National 11 -1 -12 day of , 2012, by the City of Corpus Christi, Texas Ron Olson City Manager Page 15 of 16 CONCESSIONAIRE: EAN Holdings, LLC. a Delaware limited liability company and wholly owned subsidiary of E nterprise Holdings, I nc., do ing business as A lamo R ent A C ar and National Car R 1 By: Name: Bill Gold Title: vice President / General Manager Date: 12/14/2012 STATE OF Texas COUNTY OF Bexar This instrument was acknowledged before me on beee,6190-ir )`} , 2012, by Bill Gold � as Vice President / General Manager of EAN Holdings, LLC, a Delaware company, on behalf of said company. A ........... CANDY MATTF EN MY COMMISSION EXPIRES Muoh 28, 2015 Page 16 of 16 QTA Amendment- National 11 -1 -12 FIRST AMENDMENT TO THE ON- AIRPORT RENTAL CAR CONCESSION AND LEASE AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND COASTAL BEND RENT -A -CAR, INC. WHEREAS, the City of Corpus Christi and Coastal Bend Rent-A-Car, Inc., a Texas corporation, doing business as Avis Rent -A -Car, a company operating under the laws of the State of Texas ( "Concessionaire ") previously executed an On- Airport Rental Car Concession and Lease Agreement dated November 1, 2009 ( "Original Agreement "); WHEREAS, the City is in the process of constructing a new consolidated service facility and fueling facility, referred to as the Quick Turn Around Facility ( "QTA ") to be used for fueling, cleaning, minor maintenance, staging, and storing of the rental car fleet; WHEREAS, the parties hereto desire to amend the Original Agreement to incorporate the use of the new QTA; NOW, THEREFORE, the parties agree as follows to amend the Original Agreement by adding new Article XXVIII ( "Amendment ") as follows: Article XXVIII Quick Turnaround f=acility A. Definitions: The following terms, when used in this Article XXVIII with the initial letter(s) capitalized, whether in the singular or the plural, shall have the following meaning. Capitalized terms not defined below shall have the meaning as set forth in the Original Agreement: "Airport ": Corpus Christi International Airport "Airport QTA Fund ": Fund designated by the Airport for CFCs collected by Concessionaire and paid to the Airport. "Amendment ": This First Amendment to the On- Airport Rental Car Concession and Lease Agreement that adds a new Article XXVII I. "Base Rent" or" Rent ": An amount net of CFCs required to offset the QTA costs as identified in Sections C and D below. "CFC" or "CFCs ": The Customer Facility Charge, as determined from time to time by the City as related to the QTA and required to be collected by the Concessionaire and the Other Concessionaires for all transactions conducted at the Airport. "CitL The City of Corpus Christi, Texas. Page 1 of 16 QTA Amendment- Avis 11 -1 -12 "Common Use Areas) ": All facilities and land contained in the QTA that are available for use by Concessionaire and the Other Concessionaires for their common use as identified in Exhibit A and Exhibit C attached hereto. "Concessionaire ": Any individual or business entity that has an existing lease or concession agreement with the Airport for the purpose of renting vehicles to Customers who originate from Airport property, as stated in Corpus Christi City Ordinance No. 028575. "Date of Beneficial Occupancy'- Following issuance of a Certificate of Occupancy, the date upon which the tenant substantially occupies the premises and conducts the primary activities associated with the operation of the concession. "Director" or "Airport Director": The Director of Aviation employed by the City or his or her designee. "Exclusive Use Areas) ": All facilities available and leased only to Concessionaire and no other for Concessionaire's exclusive use as identified in Exhibit B attached hereto. "Fuel System": Shall include all the fuel storage tank(s), product piping, vent piping, fuel dispensers, nozzles, hoses, Stage I and 11 vapor recovery equipment, if applicable, under dispenser containment sump, turbine sump, fill port, spill buckets, and all leak detection devices. "Improvements ": Buildings, landscaping and all other permanent improvements constructed or modified from time to time at the premises. "Heavy Vehicle Maintenance ": Any type of body work or work performed on the vehicle drivetrain, and anything beyond permissible minor maintenance.- "Land Rent ": Land Rent shall be that amount set by the City as rent for the land occupied under this Amendment which will be based on an appraisal by a Registered Third Party Appraiser based on comparable facilities to be updated every five (5) years beginning in April, 2016. "Market Share or Market Share Percentage": The amount, expressed as a percentage, equal to the quotient of (i) Concessionaire's on- Airport Gross Revenues as defined in Article IV, Section (i) of the Original Agreement during the immediately preceding twelve (12) months' period, divided by (ii) the sum of the on Airport Gross Revenues of Concessionaire and the Other Concessionaires during such twelve (12) months' period. "Operations Manual ": The manual that will be developed by the City and Concessionaires upon occupancy of the QTA that defines the daily operating procedures for conducting operations at the QTA, the use of Common Use facilities, security and safety procedures that will be enacted, and conflict resolution processes. The Operations Manual is subject to amendment and change. The most current master version will be kept in the office of the Director. "Ordinance ": Corpus Christi Ordinance No. 028575, Amending the Code of Ordinances, Chapter 9, "Aviation," by Creating New Section 9 -68, Entitled "Car Rental Customer Facility Charge," passed by the Corpus Christi City Council on April 20, 2010. Page 2 of 16 QTA Amendment- Avis 11 -1 -12 "Original Agreement": The previously executed On- Airport Rental Car Concession and Lease Agreement by and between the City and Concessionaire dated November 1, 2009. "Other Concessionaires ": All on- Airport rental car Concessionaires that are parties to an Original Agreement with the City, other than Concessionaire, and any Replacement Rental Car Company (as defined below). "QTA" or "Property ": Means the City -owned Quick Turn Around Facility Area as depicted on the attached Exhibit A, Exhibit B, and Exhibit C attached hereto. "Replacement Rental Car Company"- A rental car company who has executed an Original Agreement sublease or assignment agreement, approved in writing by the Director, to replace Concessionaire or an Other Concessionaire that defaulted under a lease with the City under terms similar to the Original Agreement. "Tenant Improvements ": Any improvements, furniture, trade fixtures or equipment construct or placed upon the Property by Concessionaire, Other Concessionaire, or Replacement Rental Car Company or the City. "Vehicle Stacking Spaces ": Those Common Use Areas as depicted on Exhibit A, also referred to herein as queuing lanes, for use in common by Concessionaire for parking its vehicles for use as rentals at the Airport in the QTA. The Spaces will be subject to adjustment as called for in this Amendment. "Vehicle Storage Spaces":, Those Common Use Areas as depicted on Exhibit A, for use in common by Concessionaire for storing its vehicles for use at the QTA. The spaces will be subject to adjustment as called for in this Amendment. B. Additional Premises The City does lease to Concessionaire, and Concessionaire does lease from the City, the additional property at the QTA as depicted on Exhibit A, Exhibit B, and Exhibit C, for Concessionaire's Exclusive Use and Common Use Areas. An Operations Manual will be on file in the Director's office and may be amended from time to time that will define the operating procedures that will be in place for use of the Additional Premises. 1) The Common Use Areas shown on Exhibit A and Exhibit C as allocated according to Section E below; shall include the following: a. Lanes for queuing Concessionaire's rental car fleet at the QTA for: i. Fueling ii. Cleaning of vehicles iii. 12 fuel dispensing bays iv. 3 car wash bays b. Employee parking spaces C. In- fleeting and out - fleeting parking lanes d. Short term vehicle storage Page 3 of 16 QTA Amendment- Avis 11 -1 -12 e. Fuel farm serving QTA 2) The Exclusive Use areas shown on Exhibit B include the following: a. Eight hundred fifty (850) square feet of office space for each Concessionaire's exclusive administrative office purposes; b. Seven hundred seventy five (775) square feet for maintenance bay for each Concessionaire's exclusive use. C. Base Rent: 1) Concessionaire shall have Exclusive Use and Common Use of the portions of the Property as depicted in attached Exhibits A, B, and C for Concessionaire's purposes and subject to reallocation as provided in Section E below. 2) Base Rent of the Exclusive Use and Common Use Areas as depicted in Exhibits A, B, and C attached shall be calculated on an annual basis. The Base Rent requirement shall be the sum of the following expenses, all of which are eligible: a. All costs of construction whether funded with cash or any borrowing instrument b. Debt service coverage requirement G. Land rent d. Major maintenance costs e. Repair and replacement account funding f. City provided insurance related to the QTA g. Utility costs associated with the QTA h. Direct labor costs for maintenance and operation of the QTA i. Operating and maintenance costs associated with operating the QTA j. Administrative costs associated with the management of the QTA k. All permits and licenses directly related to the QTA 1. Landscaping on land leased as part of the QTA m. Bad debt from vendor or concessionaire related to the QTA n. Other reasonable costs incurred by the City relating to operation of the QTA o. A deficit of prior year(s)' CFC collections applied toward Base Rent CFCs collected shall first be applied to offset the expenses in the priority identified above. The expenses listed above authorized by the Ordinance, incorporated herein by reference, apply only to Concessionaire's operations at the QTA and not to Concessionaire's operations at any other location at or outside of the Airport. In the event the total CFCs collected are available to fully offset the expenses in any budget year, then no Base Rent will be due. If the total CFCs collected are not sufficient to offset the expenses as identified above, Base Rent will be established for any deficit in the total amount required. Base Rent will be charged based on the following formula: Fifty percent (50 %) will be divided equally among the Concessionaires based on their share of Exclusive Use Area. Payment for the portion of Base Rent Page 4 of 16 QTA Amendment- Avis 11 -1 -12 charged based on equal allocation among Concessionaires is due and payable on the first day of the month for which rent is due. Following the completion of the contract year and the final audit by the City, the City will recalculate the requirement for each Concessionaire against the actual Base Rent and CFCs received and if any shortfall payment is due the City, the City will invoice Concessionaire for any amounts due and payment shall be due and payable on the fifteenth (15th) of the month following invoicing. If the Base Rent payment, less CFCs, paid to the City during the year exceeds the amount due, the City will issue a credit to the Concessionaire for the amount due by the fifteenth (15t) of the month, subject to the process defined in Section 3 of Exhibit °D" to the Original Agreement. 2. Fifty percent (50 %) will be based on Market Share of Concessionaires. Payment for the portion of The Base Rent based on Market Share that will be effective for that contract year will be projected at the beginning of the contract year based on Market Share and payment will be due and payable for this portion of the Base Rent on the first day of the month for which rent is due. Following the completion of the contract year and the final audit by the City, the City will recalculate the Market Share Base Rent requirement based on actual payments and CFCs collected and remitted. If any payment is due the City, the City will invoice Concessionaire for any amounts due and payment shall be due and payable on the fifteenth (15th) of the month following invoice. If the estimated Base Rent, less CFCs, payment paid exceeds the amount due, the City will issue a credit to the Concessionaire for the amount due on the fifteenth (15th) of the month, subject to the process defined in Section 3 of Exhibit "D" to the Original Agreement. Notwithstanding the foregoing, to whatever extent possible, if the total CFCs collected are not sufficient to offset the Base Rent expenses set out above, such shortfall will be calculated at the end of the fiscal year and will be rolled over to the next fiscal year so that, to the extent possible and at the discretion of the Airport Director, Concessionaire will not be required to submit payment to the City for such shortfall but, instead, may overcome such shortfall with a future surplus of CFCs collected. Repairs required as a result of direct damage by Concessionaire employees, agents, designees, or contractors, normal wear and tear excepted, will be charged back to the responsible Concessionaire. A minimum of sixty (60) days prior to the commencement of occupancy and for all subsequent fiscal years, the City shall prepare an expense budget identifying the expenses in the same manner as identified above and a projection of the CFC revenues anticipated to be collected and shall submit such expense budget to the Concessionaire for review and comment. Following consultation with Concessionaire, the City will establish the Base Rent that will be effective for that fiscal year and may adjust the amount of any CFC during the term of the Agreement to cover expenses and to avoid any contingent Base Rent. The Ordinance states in pertinent part: "Section 9- 68.03: Customer Facility Charge Page 5 of 16 QTA Amendment- Avis 11 -1 -12 (B) The CFCs must be used to pay, or reimburse the Airport, for the costs associated with the design, acquisition, planning, development, construction, operation, maintenance, repair, equipment, and replacement of facilities and related improvements made use of in or connected to the business of renting cars at the Airport. Any or all of the CFCs collected may be pledged to the punctual payment of debt service on obligations (and any other pecuniary obligation) issued by or on behalf of the City for the benefit of the Airport for the cost of the car rental portion of facilities, parking lots, buildings, and other improvements, and to create and maintain reasonable operating and maintenance reserves as well as capital asset repair and replacement reserves, Eligible costs for the car rental facilities and related improvements include all costs, fees, and expenses associated with the design, acquisition, planning, development, construction, equipping, operation and maintenance, capital repair and replacement, and site improvement. Nothing herein shall be construed to make fees, costs, or expenses incurred in tenant improvements for space exclusively used by a Car Rental Company ineligible. "Equipping" for the purposes of this section is limited to providing necessary equipment within the common use areas and car maintenance bays of the car rental facilities. "Operation and maintenance" for the purposes of this section does not include fees, costs, or expenses incurred for or associated with consumables, such as paper supplies, oils and lubricants, or other products used in the business of the car rental facilities." "Section 9- 68.45: Collections. (A) All CFCs collected by all Car Rental Companies are and shall be funds held by the Car Rental Companies in trust for the City for the benefit of the Airport and recognizing the third party beneficiary status of any holders of any debt obligations issued by the City for the benefit of the Airport. Car Rental Companies and their agents hold only a possessory interest in the CFCs and no equitable interest. All Car Rental Companies shall segregate, separately account for, and disclose all CFCs as trust funds in their financial statements and shall maintain adequate records that account for all CFCs charged and collected. Failure by a Car Rental Company to segregate the CFCs shall not alter or eliminate their trust fund nature. The Airport shall have the right to audit the CFC records of a Car Rental Company upon reasonable notice. (B) All Car Rental Companies shall remit all CFC funds that were collected or should have been collected from its Airport car rental customers on a monthly basis to the Airport. The CFCs shall be remitted on the 201h day of the month following the month the CFCs were collected. Failure of a Car Rental Company to strictly comply with this subparagraph shall be considered a material breach of the Car Rental Company's authorization to do business at the Airport." "Section 9- 68.06. Annual Rate Adjustments. (A) Each April, the Airport Director shall recalculate the Customer Facility Charge to be effective June 5 of the same year to recover the amount equivalent to the remaining portion of the amount pledged by the City to the Page 6 of 16 QTA Amendment- Avis 11 -1 -12 payment of debt service on obligations (or any pecuniary obligation related thereto) issued by or on behalf of the City for the benefit of the Airport. The Airport Director shall consider any written comments of the Car Rental Companies regarding the adjustment, but the Airport Director, with the concurrence of the Director of Financial Services, has the sole and final determination of the amount. (B) Notwithstanding anything herein to the contrary, the Customer Facility Charge shall not be less than $3.50 per Customer per Transaction Day." Following the completion of the year -end audit, in the event that CFC collections exceed the projected Base Rent requirement plus any projected major maintenance or projected capital investment requirements, the City will reimburse Concessionaire from the Airport QTA Fund for any Base Rent, as detailed in Section C(2) herein, actually paid by Concessionaire in prior year(s), in the form of a check to be paid by the twentieth (20") day of the following month, during the term of this Amendment, so that Concessionaire is made whole as to their costs that the Ordinance authorizes to be paid by CFCs. D. Allocation and Reallocation of numbered queuing lanes as shown on Exhibit A: 1) Concessionaire numbered queuing lanes will be allocated on an annual basis effective August 1 of each year of the Agreement according to the respective Market Share Percentages for the previous twelve (12) month period. Allocation of rows will be made in full row allocation only. A single row will not be allocated to more than one Concessionaire. In order to achieve an additional row upon annual re- allocation, a Concessionaire must have a market share percentage that commands 60% or more of a full row. 2) The Airport Director, in consultation with Concessionaire, shall annually determine the allocation of each Concessionaire's numbered queuing lanes , based on the previous twelve (12) month period market share and in keeping with full row allocation as detailed in E(1) above. The Airport Director's determination shall be final and binding, provided, however, that if the Airport Director determines that a Concessionaire's allocation is to increase, that Concessionaire may decline the reallocation and maintain their existing allocation. If a Concessionaire declines an increased allocation, it will be at the discretion of the Director to reallocate to the other Concessionaires based on the other Concessionaires' requests, but under no circumstance will there be less than a 100% allocation of all available numbered queuing lanes. Concessionaire will be provided an updated Exhibit A each year of this Amendment that will show the annual allocation by Concessionaire. E. Exhibits: If the Property is reallocated by the City, the Exhibits to this Agreement that are affected by such reallocation shall be superseded by replacement Exhibits provided by the City. F. Required and Permitted Uses: 1) The Property shall be used by Concessionaire only for the fueling, vehicle stacking, vehicle storing, washing, cleaning, detailing, and minor maintenance of Concessionaire's vehicle inventory used in connection with its Original Agreement Page 7 of 16 QTA Amendment- Avis 11 -1 -12 at the Airport, and uses incidental and reasonably related thereto. Notwithstanding the foregoing requirement, Concessionaire may use the Property for the fueling and washing of Concessionaire's vehicle inventory not rented at the Airport facility only to the extent that such fueling and /or washing does not cause undue inconvenience or maintenance costs to the other Concessionaires or the Airport. Upon complaint by the Airport or a Concessionaire of such undue inconvenience or maintenance costs, the Airport Director has sole discretion to allow or disallow fueling and/or washing of Concessionaire's vehicle inventory not rented at the Airport facility. Examples of permissible minor maintenance include services such as oil changes, tire replacement, brake maintenance, windshield repair, and vehicle fluid replacement. Any other maintenance beyond this general description performed at the QTA is not permitted except as expressly authorized in this Agreement or in writing by the Airport Director. The Airport Director will have sole discretion to authorize maintenance other than what is identified in this Agreement and will take into consideration the impact of any such requests on the Concessionaire considering environmental liability, public perception, and overall airport operations. If the Airport Director authorizes maintenance other than what is identified in this Agreement for one Concessionaire, the Airport Director will authorize such maintenance in writing to all Concessionaires. 2) The Property shall not be used for any other purpose, and specifically shall not be used for Heavy Vehicle Maintenance, storage of any vehicles used in conjunction with any off - Airport rental car concession, storage of out -of- service and damaged vehicles for longer than twenty one (21) calendar days, and sales of new or used vehicles, or auctions or liquidation sales. The Airport Director, in his/her sole discretion, may allow occasional extended storage period for damaged vehicles, when the Airport Director agrees such extension is necessary due to extenuating circumstances identified by Concessionaire. 3) If any governmental license or permit, other than a certificate of occupancy, shall be required for the proper and lawful conduct of Concessionaire's business on the Airport, Concessionaire shall procure and maintain such license or permit, at its sole cost and expense, and shall submit the same, upon request, for inspection by the City. Concessionaire shall at all times comply with terms and conditions of each such license or permit. However, City shall be responsible to comply with all regulations, laws, and ordinances and shall obtain all necessary licenses and permits required to operate the QTA, including the fueling facility and wash bays, and City shall be responsible for compliance with all applicable regulations regarding reporting requirements for the QTA, including the fueling facility. 4) Compliance with Laws: Concessionaire shall not use or permit the Property, or any part thereof, to be used in whole or in part for any purpose other than as set forth above, nor for any use, operation or activity in violation of any present or future laws, ordinances, general rules or regulations at any time applicable thereto of any public or governmental authority. In the event that compliance reporting is required. Concessionaire agrees to make all reasonable efforts to cooperate with the City in providing any required information. G. Fueling Facilities and Charges: Page 8 of 16 QTA Amendment- Avis 11 -1 -12 1) City agrees to purchase and have delivered to the Property the required fuel to be utilized by the Concessionaire for the purpose of conducting the concession operation. Concessionaire agrees to purchase and use only the fuel from the fueling station at the Property for all vehicles used as rental vehicles at the Airport. Failure to purchase fuel from the QTA shall be considered a material default under the terms of this Agreement; unless such fuel in unavailable from the City or if the City provides prior written consent. 2) The cost per gallon (U.S. Gallon) charged to Concessionaire will be based on the City's contract cost per gallon (including all applicable taxes, surcharges, delivery charges, fees and all discounts and volume rebates obtained by City) plus five cents ($0.05) per gallon. 3) City shall make all good faith efforts to obtain an acceptable grade and quality of fuel at the lowest cost available and have an adequate fuel supply available at all times unless the availability of fuel is disrupted due to reasons beyond the reasonable control of the City. 4) City will provide Concessionaire fuel keys in sufficient quantity reasonable to allow Concessionaire to fuel its vehicles without disruption as determined by the Airport Director in consultation with the Concessionaire, which activate both the fuel pumps as well as the entrance and exit gates. City's fuel system will track fuel dispensed with a computerized fuel management system. Any shortages or variations of inventory not directly attributable to the actions of the City will be charged to Concessionaire based on Market Share if the shortage cannot be reconciled. 5) City will invoice Concessionaire monthly for the fuel dispensed at the QTA by Concessionaire into its vehicle inventory, subject to Section G (1) herein. The invoice shall list the total amount of the gallons of fuel pumped by the Concessionaire for the preceding month, applicable taxes and destination charges, the price per gallon, and the $4.05 dispensing fee per gallon due to the City. 6) Concessionaire shall pay the invoice on or before the fifteenth (15th) day of the month following, the month for which fuel was provided, pursuant to Article IV(e) of the Original Agreement Failure to pay invoices in a timely manner may result in City denying access to the fuel system (deactivating Concessionaire's fuel keys), in addition to other remedies provided for in the Original Agreement, until all amounts owed to City are paid in full, though not without notice and opportunity to cure pursuant to Article XIII g. of the Original Agreement. In the event that the Concessionaire desires to pay the invoice by credit card, any costs associated with processing the credit card payment will be added to the invoice and shall be remitted to the City in addition to the payment due. Failure to make payment following notice as called for in the Original Agreement shall constitute a default under the terms of the Original Agreement and the City will have the rights associated with Article XIII of the Original Agreement. 7) A security deposit in the form of a bond, certified check, cashier's check, or other form acceptable to the City equal to two (2) months' average fuel pumped for the previous six (6) months or if six (6) months of data is not available, the two (2) months of the average of the available data will be required prior to the activation of Concessionaire's access to the fuel system. If Concessionaire does not provide a Page 9 of lfi QTA Amendment- Avis 11 -1 -12 reasonable estimate for the purpose of establishing the security deposit requirement, the City will set the security deposit amount required at its sole discretion. City shall draw against such security deposit when Concessionaire does not remedy payment after notice and opportunity to cure set forth above in subsection (6). Concessionaire will be required to restore the security deposit balance to the required amount within five (5) working days of written notice of draw down. 8) City agrees to provide regular grade unleaded fuel to the Property on a timely basis 9) Concessionaire agrees to use the fueling system and all associated apparatus in accordance with all safety instructions and shall immediately notify Airport personnel in writing, as outlined in the Operations Manual, of any safety or hazardous conditions that may exist. City or its contractor shall provide safety training regarding the fueling facility to Concessionaire prior to date of occupancy of the QTA by Concessionaire. Concessionaire is responsible for and agrees to hold City harmless for Concessionaire's misuse or negligent use or operation of the fueling system and any damages or injuries incurred as a result of such misuse or negligent use. H. Maintenance, Utilities, Security, and Custodial! Services for QTA Property 1) Maintenance of Property - Except where maintenance required exceeds that associated with normal wear and tear and is a result of the negligence of Concessionaire, its employees, agents, contractors and invitees, City agrees that during the term of this Agreement it shall keep, maintain and repair the Property, including Concessionaire's Tenant Improvements in its Exclusive Use Area and the cost for performing such services shall be included in the Base Rent as outlined in this Amendment. Concessionaire hereby expressly agrees at all times during the term of this Agreement to make all reasonable efforts to cooperate with City in keeping the Property in a clean, maintained, and in a sanitary condition, City agrees to perform all required maintenance of City's Fuel System. City shall also ensure that monthly leak detection is fully operational and in compliance with all local, state, and federal laws, regulations, and ordinances governing the operation of such Fuel System. Concessionaire shall have no responsibility to remove or permanently close the fuel storage tanks installed by the City. Concessionaire shall have no responsibility for City's maintenance, City's leak detection, or City's operation of the City's Fuel System. Concessionaire shall not be Gable to the City or any regulatory agency or agencies having jurisdiction over the operation of City's Fuel System for the violation of any local, state, and federal laws governing the operation of such Fuel System notwithstanding Concessionaire's responsibility as stated in Section H (11) herein. Concessionaire shall not be responsible for the release and clean -up of any Hazardous Substance as defined herein from the Fuel System, except when caused by acts or omissions of Concessionaire. Concessionaire shall not be deemed to be the operator of City's Fuel System, as the term "operator' is defined in any local, state, or federal laws governing the operation of the Fuel System. 2) Utilities - City shall provide standard heat, electricity, and air conditioning in the Exclusive and Common Use Areas on the QTA Property. Payment for these services shall be paid by Concessionaire as part of the Base Rent. In cases where Page 10 of 16 QTA Amendment- Avis 11 -1 -12 the City furnishes and delivers natural gas, electricity or water /sewer to the Property, the City does not guarantee the continuity or sufficiency of such supply, but the City will make reasonable efforts within the City's control to ensure such delivery. The City will not be liable for interruptions or shortages or insufficiency of supply or any loss or damage of any kind or character occasioned thereby if the same is caused by accident, act of God, fire, strikes, riots, war, inability to secure a sufficient supply from the utility company furnishing the City, or any other cause. Whenever the City shall find it necessary for the purpose of making repairs or improvements to any utility supply system it shall maintain, following consultation with Concessionaire, it shall have the right to suspend temporarily the delivery of natural gas, electricity or water. However, City agrees to make reasonable efforts to cause minimal disruption when possible. 3) Information Technology and Telephone Services: Concessionaire shall be responsible, at its sole cost, for providing all telephone and data services for its use and for obtaining any necessary permits. Systems installed by one Concessionaire shall not adversely affect other Concessionaires, tenants, or City. 4) Security of Property - City shall coordinate and enforce secured access to the Property for Concessionaire. Concessionaire shall abide by all security directives of the City. J. Customer Facility Charge ( "CFC"): Concessionaire is required to collect and remit to the City within twenty (20) calendar days following the end of the month in which the fee is collected, the total CFCs on all vehicle rental transactions originating at the Airport. City hereby agrees that during the term of this Agreement, CFC revenues collected by Concessionaire and remitted to City shall be used to offset Concessionaire's equal allocation of Base Rent and Market Share Base Rent as called for in this Amendment. If for any reason the CFC's collected, or any portion thereof, are insufficient to cover anticipated expenses identified in this Amendment, then any deficiency in the amounts otherwise owed by Concessionaire to City under this Amendment shall be paid to City by Concessionaire as part of Base Rent as calculated in accordance with this Amendment during the applicable contract year. The City may adjust the amount of the CFC during the Term of this Amendment following consultation with the Concessionaire. K. Delinquency Charge: Concessionaire agrees that in the event payments to the City for any fees and charges are not received by the City on or before the respective due dates, as set forth in this Amendment, Concessionaire shall pay to the City a delinquency charge of one and one half percent (1 -112 %) of the amount due to City, for each month, calculated daily, that the amount due remains unpaid, However, the City agrees to provide written notice of such delinquency prior to assessing such charge for a first occurrence. Payments due the City shall be received by the City only on normal business days, Monday through Friday, and shall not be considered late if the date due falls on a weekend or legal City holiday provided payment is received on the next business day. A yearly schedule of City holidays shall be provided to Concessionaire upon request. Payment by Concessionaire and acceptance by City of a delinquent charge shall not be construed as a waiver or forfeiture of any other rights or remedies of the City contained elsewhere in this Page 11 of 16 QTA Amendment- Avis 11 -1 -12 Agreement, or as provided by law. For the purposes of this section, the date payments are received by City shall be the U. S. Postal Service cancellation date on the envelope transmitting the payment, or the date such payment is received by an authorized representative of the City if the payment is hand delivered. In the event of a dispute as to the amount to be paid, the City may accept without prejudice the sum tendered and, if a deficiency is determined, the foregoing delinquency charge shall apply only to such deficiency. The City may waive, for good cause, in its sole discretion, any delinquency charge upon written application of Concessionaire. L. Insurance: With regards to the QTA and any other property described in this Amendment, Concessionaire agrees to obtain and maintain all insurances as described in Exhibit "E" to the Original Agreement and shall name the City as additional insured as its interests appear hereunder for liabilities arising out of the conduct of Concessionaire, its officers, employees or agents for the Commercial General Liability and Business Auto Liability Insurance, with a waiver of subrogation in favor of the City for worker's compensation. Concessionaire shall be responsible to obtain all property insurance to insure Concessionaire's own property. However, the "Environmental Impairment Liability" description in Exhibit E is modified to read as follows: Environmental Impairment Liability to include $1,000,000 per claim Broad Form Pollution Liability Coverage Third Party Clean Up Concessionaire's Environmental Impairment policy coverage applies only to claims, damages, suits, judgments that are due to the negligence or wrongful acts of concessionaire, its officers, employees or agents. Concessionaire's Environmental Impairment policy coverage does not apply to any claims, damages, suits, judgments, clean up that are due to the acts of the City or any third -party contracted by the City to operate the QTA. City shall obtain the following insurance coverage to cover the City's exposures for the QTA: Property insurance for City owned facilities; and Storage Tank Liability to cover only City's liability exposures. M. Condition of the Property: Except as may be expressly provided elsewhere in this Agreement, the taking of possession of the Property by Concessionaire shall in itself constitute acknowledgment that the City shall not be obligated to make any Tenant improvements or modifications thereto. Concessionaire shall not be liable for any pre- existing conditions, latent defects, or damage not caused by Concessionaire. Concessionaire shall have no liability arising out of or in any way relating to the existence of any hazardous materials placed on, in or under the Property by any person or entity other than Concessionaire or any person or entity acting for, by or through Concessionaire or with Concessionaire's permission or acquiescence Page 12 of 16 QTA Amendment- Avis 11 -1 -12 N. Reserved Easements: The City reserves to itself and the right to grant to others in the future nonexclusive utility easements (including easements for construction, maintenance, repair, replacement and reconstruction) over, under, though, across, or on the Property in locations that will not unreasonably interfere with Concessionaire's use thereof. The City retains all mineral rights on the Airport property. O. Obligations of the City: The City agrees that use of the Property shall be limited to rental car companies with an On- Airport Rental Car Concession and Lease Agreement executed with the City. City reserves the right to retain third parties to operate, repair and maintain the Property, including without limitation, to operate and maintain the fueling system. P. Default: Either party may terminate the use of the QTA for other party's noncompliance of any terms of the Original Agreement or for noncompliance with terms of this Amendment, upon failure to cure after issuance of a thirty (30) days written notice. If this Amendment is terminated for Concessionaire's noncompliance with the terms of this Amendment or for Concessionaire's noncompliance with the terms of the Original Agreement and this Amendment, then the Concessionaire shall be liable to City for payment of remaining equal rent payments for the remainder of the Original Agreement term. City shall invoice and Concessionaire shall remit payment within thirty days for such remaining rental payments. In the event City subleases the Exclusive Use Areas to another concessionaire as a result of any Default termination, City will apply any rent received against the rent obligations of Concessionaire, but in no circumstances, will the amount applied exceed the total rent obligation. Q. Effective Date and Term: 1) The Effective Date of this Amendment is , 20—, subject to final City Council approval. Notwithstanding that, Concessionaire may occupy the Property on the date the Certificate of Occupancy is issued by the City Building Official for the Property or upon the Date of Beneficial Occupancy, whichever occurs first. As part of the transition plan, (described in Article IV (q) of the Original Agreement), from the existing Service and Maintenance Facilities ( "Facilities") to the QTA, if Concessionaire occupies the QTA before the Effective Date, Concessionaire shall continue to pay rents for the existing Facilities under the Original Agreement through the close of business the day before the Effective date. Beginning on the Effective Date, rent and fees shall be paid pursuant to the QTA -based annual budget. As of the close of business the day before the Effective Date, rents for the existing Facilities shall cease. However, notwithstanding the foregoing, Concessionaire shall continue to pay full rent for the existing Facilities until said existing Facilities are completely vacated by Concessionaire. Upon the Effective Date of this Amendment, the Term of the Original Agreement shall be extended for a new base period such that the Term of the Original Agreement and this Amendment are identical and such Term shall be extended for a new base period of five (5) years commencing on the Effective Date and ending on the last day of the fifth (5f") full fiscal year thereafter ( "Base Page 13af16 QTA Amendment - Avis 11 -1 -12 Term "). Upon the Effective Date of this Amendment the use of "Term" and "Base Term" shall apply to the Original Agreement and this Amendment. 2) Renewal Option: Upon the expiration of the Base Term, and upon the mutual agreement of the City Manager or his designee and Concessionaires not considered to be in default under the terms of the Amendment or the Original Agreement, Concessionaire will have two (2) separate, successive options (each a "Renewal Option ") to extend the term for additional periods of five (5) years (each a "Renewal Term "). The first Renewal Term will commence upon the expiration of the Base Term. Each successive Renewal Term will commence upon the expiration of the previously exercised Renewal Term. The first Renewal Option, upon the mutual agreement of the City Manager or his designee and the numeric majority of all Concessionaires not considered to be in default under the terms of the Amendment or the Original Agreement, may be exercised by written notice from Concessionaire to the City Manager or his designee not later than six (6) months prior to the expiration of the Base Term. Subsequent Renewal Options may be exercised by written notice from Concessionaire to the City Manager or his designee not later than six (6) months prior to the expiration of the previously exercised Renewal Term. Each Renewal Term will be upon the same terms and conditions as during the Base Term, except as otherwise provided. 3) Termination: Concessionaire may terminate the Original Agreement and this Amendment upon the expiration of the initial Base Term or any Renewal Term with no further obligations other than what is contained in the Original Agreement and this Amendment. 4) Upon the Effective Date, the Minimum Annual Guarantee ( "MAG ") payments will be recalculated to eighty -five percent(85 %) of ten percent(10 %) of the average of the most immediate prior twelve (12) months of Gross Revenues as such term is defined in the Original Agreement. At the commencement of each exercised Option period, the MAG for any exercised option periods shall also be recalculated at eighty -five percent (85 %) of ten percent (10 %) of the average of the most immediate prior twelve (12) months Gross Revenues at the commencement of each option period. In the event that extraordinary conditions arise that will significantly impact the operations of Concessionaire, at the discretion of the Airport Director, the City agrees to consult with Concessionaire on the potential for adjustment of the MAG. Concessionaire agrees to comply with any request to provide adequate background information detailing the basis for the request and present the same to the Airport Director for review. Any adjustments will be at the sole discretion of the City. 5) The right granted in the Article VI of the Original Agreement with respect to Concessionaire's use or construction of underground or aboveground storage tanks is explicitly repealed. Concessionaire shall not have right to use or construct any existing underground storage tank or aboveground storage tank following the effective date of this amendment. 6) Concessionaire must vacate the Service and Maintenance Facility Premises allocated under the Original Agreement for service and maintenance facilities at the Airport within two (2) weeks of written notification from the Airport Director. City will remove all improvements from the existing facilities and if remediation is required, Page 14 of 16 QTA Amendment- Avis 11 -1 -12 the cost of any such remediation shall be the responsibility of the Concessionaire or entity that caused the requirement for remediation. City will consult with Concessionaire as to the scope of remediation services required; however, it is agreed that all remediation will be sufficient to meet or exceed and local, State, and/or Federal requirements. Concessionaire will be notified of the improvement removal process and will be given the opportunity to be present at the removal, testing and remediation upon the Premises. Upon completion of the remediation, any payment due shall be remitted to the City on the fifteenth (15th) of the month following invoice. If there is any property remaining after such date that must be disposed of by the demolition contractor at an additional expense, Concessionaire shall pay all costs for disposal if such property is not removed after ten (10) days` written notice by Airport Director to Concessionaire. 7) Article ill Sections k, 1, m and Exhibit C, of the Original Agreement are repealed upon effective date of this Amendment. Gasoline dispensed in accordance with the Terms of the Amendment at the Property shall be excluded from Article VI n of the Original Agreement. 8) All other terms and conditions of the previously executed Original Agreement between the parties which are not inconsistent herewith, shall apply to the use of the additional Property, and shall continue in full force and effect. R. Parking Space Sales Tax: Pursuant to Article III() of the Original Agreement, Concessionaire shall pay monthly rent to the City for allocated Parking Spaces. As of the Effective date of this Amendment, Concessionaire shall, in addition to paying rent on said allocated Parking Spaces, also pay the applicable sales tax per month for each parking space allotted to Concessionaire. IN WITNESS WHEREOF, the parties hereto have themselves or through their duly authorized officers executed this Amendment, to be effective upon execution by the City Manager. EXECUTED IN DUPLICATE ORIGINALS this day of , 2012, by the authorized representative of the parties. ATTEST: Armando Chapa City Secretary QTA Amendment- Avis 11 -1 -12 City of Corpus Christi, Texas Ron Olson City Manager Page 15 of 16 CONCESSIONALME, � C stal Bend Rent -A -Car, Inc., a Texas corporation, doing business as Avis Re By: Name: _ G. /� Orf; 1' 4 0 �Tr_ Title: �/��sideyi 7` Date: /R • STATE OF TEXAS COUNTY OF Mlfc- es This instrument was acknowledged before me on Pe , 2012, by / . . mori Aso - �_ P , as re,si�P� 7`` , of Coastal Bend Rent -A -Car, Inc., a Texas corporation, on behalf of said corporation. Notary Public ;.otipnr`r'oa�n� VICTORIA L. PANNONE Notary Public, State of Texas - - My Commission Expires Juno 14, 2013 Page 15 of 16 QTA Amendment- Avis 11 -I -12 FIRST AMENDMENT TO THE ON- AIRPORT RENTAL CAR CONCESSION AND LEASE AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND DTG OPERATIONS, INC. WHEREAS, the City of Corpus Christi and DTG Operations, Inc., an Oklahoma corporation, doing business as Dollar Rent -A -Car and as Thrifty Car Rental, a corporation operating under the laws of the State of Texas ( "Concessionaire ") previously executed an On- Airport RentalCar Concession and Lease Agreement dated November 1, 2009 ( "Original Agreement "); WHEREAS, the City is in the process of constructing a new consolidated service facility and fueling facility, referred to as the Quick Turn Around Facility ( "QTA ") to be used for fueling, cleaning, minor maintenance; staging, and storing of the rental car fleet; WHEREAS, the parties hereto desire to amend the Original Agreement to incorporate the use of the new QTA; NOW, THEREFORE, the parties agree as follows to amend the Original Agreement by adding new Article XXVIII ( "Amendment ") as follows: Article XXVIII Quick Turnaround Facility A. Definitions: The following terms, when used in this Article XXVIII with the initial letter(s) capitalized, whether in the singular or the plural, shall have the following meaning. Capitalized terms not defined below shall have the meaning as set forth in the Original Agreement: "Airport": Corpus Christi International Airport. "Airport QTA Fund ": Fund designated by the Airport for CFCs collected by Concessionaire and paid to the Airport. "Amendment": This First Amendment to the On- Airport Rental Car Concession and Lease Agreement that adds a new Article XXVIII. "Base Rent" or" Rent": An amount net of CFCs required to offset the QTA costs as identified in Sections C and D below. "CFC" or "CFCs ": The Customer Facility Charge, as determined from time to time by the City as related to the QTA and required to be collected by the Concessionaire and the Other Concessionaires for all transactions conducted at the Airport. "City": The City of Corpus Christi, Texas. Page 1 of 16 QTA Amendment- Dollar,Thrifty 11 -1 -12 "Common Use Area(s) ": All facilities and land contained in the QTA that are available for use by Concessionaire and the Other Concessionaires for their common use as identified in Exhibit A and Exhibit C attached hereto. "Concessionaire ": Any individual or business entity that has an existing lease or concession agreement with the Airport for the purpose of renting vehicles to Customers who originate from Airport property, as stated in Corpus Christi City Ordinance No. 028575. "Date of Beneficial Occupancy": Following issuance of a Certificate of Occupancy, the date upon which the tenant substantially occupies the premises and conducts the primary activities associated with the operation of the concession. "Director" or "Airport Director": The Director of Aviation employed by the City or his or herdesignee. "Exclusive Use Area(s)": All facilities available and leased only to Concessionaire and no other for Concessionaire's exclusive use as identified in Exhibit B attached hereto. "Fuel System ": Shall include all the fuel storage tank(s), product piping, vent piping, fuel dispensers, nozzles, hoses, Stage I and II vapor recovery equipment, if applicable, under dispenser containment sump, turbine sump, fill port, spill buckets, and all leak detection devices. "Improvements ": Buildings, landscaping and all other permanent improvements constructed or modified from time to time at the premises. "Heavy Vehicle Maintenance ": Any type of body work or work performed on the vehicle drivetrain, and anything beyond permissible minor maintenance. "Land Rent ": Land Rent shall be that amount set by the City as rent for the land occupied under this Amendment which will be based on an appraisal by a Registered Third Party Appraiser based on comparable facilities to be updated every five (5) years beginning in April, 2016. "Market Share or Market Share Percentage ": The amount, expressed as a percentage, equal to the quotient of (i) Concessionaire's on- Airport Gross Revenues as defined in Article IV, Section (i) of the Original Agreementduring the immediately preceding twelve (12) months' period, divided by (ii) the sum of the on Airport Gross Revenues of Concessionaire and the Other Concessionaires during such twelve (12) months' period. "Operations Manual ": The manual that will be developed by the City and Concessionairesupon occupancy of the QTA that defines the daily operating procedures for conducting operations at the QTA, the use of Common Use facilities, security and safety procedures that will be enacted, and conflict resolution processes. The Operations Manual is subject to amendment and change. The most current master version will be kept in the office of the Director. "Ordinance ": Corpus Christi Ordinance No. 028575, Amending the Code of Ordinances, Chapter 9, "Aviation," by Creating New Section 9 -68, Entitled "Car Rental Customer Facility Charge," passed by the Corpus Christi City Council on April 20, 2010. Page 2 of 16 QTA Amendment- Dollar,Thrifty 1 I -1 -12 "Original Agreement": The previously executed On- Airport Rental Car Concession and Lease Agreement by and between the City and Concessionairedated November 1, 2009. "Other Concessionaires ": All on- Airport rental car Concessionaires that are parties toan Original Agreement with the City, other than Concessionaire, and any Replacement Rental Car Company (as defined below). "QTA" or "Property": Means the City -owned Quick TurnAround Facility Area as depicted on the attached Exhibit A, Exhibit B, and Exhibit C attached hereto. "Replacement Rental Car Company": A rental car company who has executed an Original Agreement sublease or assignment agreement, approved in writing by the Director, to replace Concessionaire or an Other Concessionaire that defaulted under a lease with the City under terms similar to the Original Agreement. "Tenant Improvements ": Any improvements, furniture, trade fixtures or equipment construct or placed upon the Property by Concessionaire, Other Concessionaire, or Replacement Rental Car Company or the City. "Vehicle Stacking Spaces ": Those Common Use Areas as depicted on Exhibit A, also referred to herein as queuing lanes, for use in common by Concessionaire for parking its vehicles for use as rentals at the Airport in the QTA. The Spaces will be subject to adjustment as called for in this Amendment. "Vehicle Storage Spaces ": Those Common Use Areas as depicted on Exhibit A, for use in common by Concessionaire for storing its vehicles for use at the QTA. The spaces will be subject to adjustment as called for in this Amendment. B. Additional Premises The City does lease to Concessionaire, and Concessionaire does lease from the City, the additional property at the QTA as depicted on Exhibit A, Exhibit B, and Exhibit C, for Concessionaire's Exclusive Use and Common Use Areas. An Operations Manual will be on file in the Director's office and may be amended from time to time that will define the operating procedures that will be in place for use of the Additional Premises. 1) The Common Use Areas shown on Exhibit A and Exhibit C as allocated according to Section E below; shall include the following: a. Lanes for queuing Concessionaire'srental car fleet at the QTA for: i. Fueling ii. Cleaning of vehicles iii. 12 fuel dispensing bays iv. 3 car wash bays b. Employee parking spaces C. In- fleeting and out - fleeting parking lanes d. Short term vehicle storage Page 3 of 16 QTA Amendment- Dollar,Thrifty I1 -I -12 e. Fuel farm serving QTA 2) The Exclusive Use areas shown on Exhibit B include the following: a. Eight hundred fifty (850) square feet of office space for each Concessionaire's exclusive administrative office purposes; b. Seven hundred seventy five (775) square feet for maintenance bay for each Concessionaire's exclusive use. C. Base Rent: 1) Concessionaire shall have Exclusive Use and Common Use of the portions of the Property as depicted in attached Exhibits A, B, and C for Concessionaire's purposes and subject to reallocation as provided in Section E below. 2) Base Rent of the Exclusive Use and Common Use Areas as depicted in Exhibits A, B, and C attached shall be calculated on an annual basis. The Base Rent requirement shall be the sum of the following expenses, all of which are eligible: a. All costs of construction whether funded with cash or any borrowing instrument b. Debt service coverage requirement C. Land rent d. Major maintenance costs e. Repair and replacement account funding f. City provided insurance related to the QTA g. Utility costs associated with the QTA h. Direct labor costs for maintenance and operation of the QTA i. Operating and maintenance costs associated with operating the QTA j. Administrative costs associated with the management of the QTA k. All permits and licenses directly related to the QTA I. Landscaping on land leased as part of the QTA m. Bad debt from vendor or concessionaire related to the QTA n. Other reasonable costs incurred by the City relating to operation of the QTA o. A deficit of prior year(s)' CFC collections applied toward Base Rent CFCs collected shall first be applied to offset the expenses in the priority identified above. The expenses listed above authorized by the Ordinance, incorporated herein by reference,apply only to Concessionaire's operations at the QTA and not to Concessionaire's operations at any other location at or outside of the Airport. In the event the total CFCs collected are available to fully offset the expenses in any budget year, then no Base Rent will be due. If the total CFCs collected are not sufficient to offset the expenses as identified above, Base Rent will be established for any deficit in the total amount required. Base Rent will be charged based on the following formula: Fifty percent (50 %) will be divided equally among the Concessionaires based on their share of Exclusive Use Area. Payment for the portion of Base Rent Page 4 of 16 QTA Amendment- Do11ar,Thrifty 1 I -1 -12 charged based on equal allocation among Concessionaires is due and payable on the first day of the month for which rent is due. Following the completion of the contract year and the final audit by the City, the City will recalculate the requirement for each Concessionaire against the actual Base Rent and CFCs received and if any shortfall payment is due the City, the City will invoice Concessionaire for any amounts due and payment shall be due and payable on the fifteenth (15th) of the month following invoicing. If the Base Rent payment, less CFCs, paid to the City during the year exceeds the amount due, the City will issue a credit to the Concessionaire for the amount due by the fifteenth (15th) of the month, subject to the process defined in Section 3 of Exhibit "D" to the Original Agreement. 2. Fifty percent (50 %) will be based on Market Share of Concessionaires. Payment for the portion of The Base Rent based on Market Share that will be effective for that contract year will be projected at the beginning of the contract year based on Market Share and payment will be due and payable for this portion of the Base Rent on the first day of the month for which rent is due. Following the completion of the contract year and the final audit by the City, the City will recalculate the Market Share Base Rent requirement based on actual payments and CFCs collected and remitted. If any payment is due the City, the City will invoice Concessionaire for any amounts due and payment shall be due and payable on the fifteenth (15th) of the month following invoice. If the estimated Base Rent, less CFCs, payment paid exceeds the amount due, the City will issue a credit to the Concessionaire for the amount due on the fifteenth (15th) of the month, subject to the process defined in Section 3 of Exhibit "D" to the Original Agreement. Notwithstanding the foregoing, to whatever extent possible, if the total CFCs collected are not sufficient to offset the Base Rent expenses set out above, such shortfall will be calculated at the end of the fiscal year and will be rolled over to the next fiscal year so that, to the extent possible and at the discretion of the Airport Director, Concessionaire will not be required to submit payment to the City for such shortfall but, instead, may overcome such shortfall with a future surplus of CFCs collected. Repairs required as a result of direct damage by Concessionaire employees, agents, designees, or contractors, normal wear and tear excepted, will be charged back to the responsible Concessionaire. A minimum of sixty (60) days prior to the commencement of occupancy and for all subsequent fiscal years, the City shall prepare an expense budget identifying the expenses in the same manner as identified above and a projection of the CFC revenues anticipated to be collected and shall submit such expense budget to the Concessionaire for review and comment. Following consultation with Concessionaire, the City will establish the Base Rent that will be effective for that fiscal year and may adjust the amount of any CFC during the term of the Agreement to cover expenses and to avoid any contingent Base Rent. The Ordinance states in pertinent part: "Section 9- 68.03: Customer Facility Charge Page 5 of 16 QTA Amendment- Dollar,Thrifty I 1 -1 -12 (B) The CFCs must be used to pay, or reimburse the Airport, for the costs associated with the design, acquisition, planning, development, construction, operation, maintenance, repair, equipment, and replacement of facilities and related improvements made use of in or connected to the business of renting cars at the Airport. Any or all of the CFCs collected may be pledged to the punctual payment of debt service on obligations (and any other pecuniary obligation) issued by or on behalf of the City for the benefit of the Airport for the cost of the car rental portion of facilities, parking lots, buildings, and other improvements, and to create and maintain reasonable operating and maintenance reserves as well as capital asset repair and replacement reserves. Eligible costs for the car rental facilities and related improvements include all costs, fees, and expenses associated with the design, acquisition, planning, development, construction, equipping, operation and maintenance, capital repair and replacement, and site improvement. Nothing herein shall be construed to make fees, costs, or expenses incurred in tenant improvements for space exclusively used by a Car Rental Company ineligible. "Equipping" for the purposes of this section is limited to providing necessary equipment within the common use areas and car maintenance bays of the car rental facilities. "Operation and maintenance" for the purposes of this section does not include fees, costs, or expenses incurred for or associated with consumables, such as paper supplies, oils and lubricants, or other products used in the business of the car rental facilities." "Section 9- 68.05: Collections. (A) All CFCs collected by all Car Rental Companies are and shall be funds held by the Car Rental Companies in trust for the City for the benefit of the Airport and recognizing the third party beneficiary status of any holders of any debt obligations issued by the City for the benefit of the Airport. Car Rental Companies and their agents hold only a possessory interest in theCFCs and no equitable interest. All Car Rental Companies shall segregate, separately account for, and disclose all CFCs as trust funds in their financial statements and shall maintain adequate records that account for all CFCs charged and collected. Failure by a Car Rental Company to segregate the CFCs shall not alter or eliminate their trust fund nature. The Airport shall have the right to audit the CFC records of a Car Rental Company upon reasonable notice. (B) All Car Rental Companies shall remit all CFC funds that were collected or should have been collected from its Airport car rental customerson a monthly basis to the Airport. The CFCs shall be remitted on the 20th day of the month following the month the CFCs were collected. Failure of a Car Rental Company to strictly comply with this subparagraph shall be considered a material breach of the Car Rental Company's authorization to do business at the Airport." "Section 9- 68.06.Annual Rate Adjustments. (A) Each April, the Airport Director shall recalculate the Customer Facility Charge to be effective June 5 of the same year to recover the amount equivalent to the remaining portion of the amount pledged by the City to the Page 6 of 16 QTA Amendment- Dollar,Thrifty 1 I -1 -12 payment of debt service on obligations (or any pecuniary obligation related thereto) issued by or on behalf of the City for the benefit of the Airport. The Airport Director shall consider any written comments of the Car Rental Companies regarding the adjustment, but the Airport Director, with the concurrence of the Director of Financial Services, has the sole and final determination of the amount. (B) Notwithstanding anything herein to the contrary, the Customer Facility Charge shall not be less than $3.50 per Customer per Transaction Day." Following the completion of the year -end audit, in the event that CFC collections exceed the projected Base Rent requirement plus any projected major maintenance or projected capital investment requirements, the City will reimburse Concessionaire from the Airport QTA Fund for any Base Rent, as detailed in Section C(2) herein, actually paid by Concessionaire in prior year(s), in the form of a check to be paid by the twentieth (20th) day of the following month, during the term of this Amendment, so that Concessionaire is made whole as to their costs that the Ordinance authorizes to be paid by CFCs. D. Allocation and Reallocation ofnumbered queuing lanes as shown on ExhibitA: 1) Concessionaire numbered queuing lanes will be allocated on an annual basis effective August 1 of each year of the Agreement according to the respective Market Share Percentages for the previous twelve (12) month period. Allocation of rows will be made in full row allocation only. A single row will not be allocated to more than one Concessionaire. In order to achieve an additional row upon annual re- allocation, a Concessionaire must have a market share percentage that commands 60% or more of a full row. 2) The Airport Director, in consultation with Concessionaire, shall annually determine the allocation of each Concessionaire's numbered queuing lanes , based on the previous twelve (12) month period market share and in keeping with full row allocation as detailed in E (1) above. The Airport Director's determination shall be final and binding, provided, however, that if the Airport Director determines that a Concessionaire's allocation is to increase, that Concessionaire may decline the reallocation and maintain their existing allocation. If a Concessionaire declines an increased allocation, it will be at the discretion of the Director to reallocate to the other Concessionaires based on the other Concessionaires' requests, but under no circumstance will there be less than a 100% allocation of all available numbered queuing lanes. Concessionaire will be provided an updated Exhibit A each year of this Amendment that will show the annual allocation by Concessionaire. E. Exhibits: If the Property is reallocated by the City, the Exhibits to this Agreement that are affected by such reallocation shall be superseded by replacement Exhibits provided by the City. F. Required and Permitted Uses: 1) The Property shall be used by Concessionaire only for the fueling, vehicle stacking, vehicle storing, washing, cleaning, detailing and minor maintenance of Concessionaire's vehicle inventory used in connection with its Original Agreement Page 7 of 16 QTA Amendment- Dollar,Thrifty 1 I -1 -12 at the Airport, and uses incidental and reasonably related thereto. Notwithstanding the foregoing requirement, Concessionaire may use the Property for the fueling and washing of Concessionaire's vehicle inventory not rented at the Airport facility only to the extent that such fueling and /or washing does not cause undue inconvenience or maintenance costs to the other Concessionaires or the Airport. Upon complaint by the Airport or a Concessionaire of such undue inconvenience or maintenance costs, the Airport Director has sole discretion to allow or disallow fueling and /or washing of Concessionaire's vehicle inventory not rented at the Airport facility. Examples of permissible minor maintenance include services such as oil changes, tire replacement, brake maintenance, windshield repair, and vehicle fluid replacement. Any other maintenance beyond this general description performed at the QTA is not permitted except as expressly authorized in this Agreement or in writing by the Airport Director. The Airport Director will have sole discretion to authorize maintenance other than what is identified in this Agreement and will take into consideration the impact of any such requests on the Concessionaire considering environmental liability, public perception, and overall airport operations. If the Airport Director authorizes maintenance other than what is identified in this Agreement for one Concessionaire, the Airport Director will authorize such maintenance in writing to all Concessionaires. 2) The Property shall not be used for any other purpose, and specifically shall not be used for Heavy Vehicle Maintenance, storage of any vehicles used in conjunction with any off - Airport rental car concession, storage of out -of- service and damaged vehicles for longer than twenty one (21) calendar days, and sales of new or used vehicles, or auctions or liquidation sales. The Airport Director, in his /her sole discretion, may allow occasional extended storage period for damaged vehicles, when the Airport Director agrees such extension is necessary due to extenuating circumstances identified by Concessionaire. 3) If any governmental license or permit, other than a certificate of occupancy, shall be required for the proper and lawful conduct of Concessionaire's business on the Airport, Concessionaire shall procure and maintain such license or permit, at its sole cost and expense, and shall submit the same, upon request, for inspection by the City. Concessionaire shall at all times comply with terms and conditions of each such license or permit. However, City shall be responsible to comply with all regulations, laws, and ordinances and shall obtain all necessary licenses and permits required to operate the QTA, including the fueling facility and wash bays, and City shall be responsible for compliance with all applicable regulations regarding reporting requirements for the QTA, including the fueling facility. 4) Compliance with Laws: Concessionaire shall not use or permit the Property, or any part thereof, to be used in whole or in part for any purpose other than as set forth above, nor for any use, operation or activity in violation of any present or future laws, ordinances, general rules or regulations at any time applicable thereto of any public or governmental authority. In the event that compliance reporting is required.Concessionaire agrees to make all reasonable efforts to cooperate with the City in providing any required information. G. Fueling Facilities and Charges: Page 8 of 16 QTA Amendment- Dollar,Thrifty 11 -1 -12 1) City agrees to purchase and have delivered to the Property the required fuel to be utilized by the Concessionaire for the purpose of conducting the concession operation. Concessionaire agrees to purchase and use only the fuel from the fueling station at the Property for all vehicles used as rental vehicles at the Airport. Failure to purchase fuel from the QTA shall be considered a material default under the terms of this Agreement; unless such fuel in unavailable from the City or if the City provides prior written consent. 2) The cost per gallon (U.S. Gallon) charged to Concessionaire will be based on the City's contract cost per gallon (including all applicable taxes, surcharges, delivery charges, fees and all discounts and volume rebates obtained by City) plus five cents ($0.05) per gallon. 3) City shall make all good faith efforts to obtain an acceptable grade and quality of fuel at the lowest cost available and have an adequate fuel supply available at all times unless the availability of fuel is disrupted due to reasons beyond the reasonable control of the City. 4) City will provide Concessionaire fuel keys in sufficient quantity reasonable to allow Concessionaire to fuel its vehicles without disruption as determined by the Airport Director in consultation with the Concessionaire, which activate both the fuel pumps as well as the entrance and exit gates. City's fuel system will track fuel dispensed with a computerized fuel management system. Any shortages or variations of inventory not directly attributable to the actions of the City will be charged to Concessionaire based on Market Share if the shortage cannot be reconciled. 5) City will invoice Concessionaire monthly for the fuel dispensed at the QTA by Concessionaire into its vehicle inventory, subject to Section G (1) herein. The invoice shall list the total amount of the gallons of fuel pumped by the Concessionaire for the preceding month, applicable taxes and destination charges, the price per gallon, and the $0.05 dispensing fee per gallon due to the City. 6) Concessionaire shall pay the invoice on or before the fifteenth (15th) day of the month following, the month for which fuel was provided, pursuant to Article IV (e) of the Original Agreement Failure to pay invoices in a timely manner may result in City denying access to the fuel system (deactivating Concessionaire's fuel keys), in addition to other remedies provided for in theOriginal Agreement, until all amounts owed to City are paid in full, though not without notice and opportunity to cure pursuant to Article XI11 g. of the Original Agreement. In the event that the Concessionaire desires to pay the invoice by credit card, any costs associated with processing the credit card payment will be added to the invoice and shall be remitted to the City in addition to the payment due. Failure to make payment following notice as called for in theOriginal Agreement shall constitute a default under the terms of the Original Agreement and the City will have the rights associated with Article XIII of theOriginal Agreement. 7) A security deposit in the form of a bond, certified check, cashier's check, or other form acceptable to the City equal to two (2) months' average fuel pumped for the previous six (6) months or if six (6) months of data is not available, the two (2) months of the average of the available data will be required prior to the activation of Concessionaire's access to the fuel system. If Concessionaire does not provide a Page 9 of 16 QTA Amendment- Do11ar,Thrifty 1 I -1 -12 reasonable estimate for the purpose of establishing the security deposit requirement, the City will set the security deposit amount required at its sole discretion. City shall draw against such security deposit when Concessionaire does not remedy payment after notice and opportunity to cure set forth above in subsection (6). Concessionaire will be required to restore the security deposit balance to the required amount within five (5) working days of written notice of draw down. 8) City agrees to provide regular grade unleaded fuel to the Property on a timely basis. 9) Concessionaire agrees to use the fueling system and all associated apparatus in accordance with all safety instructions and shall immediately notify Airport personnelin writing, as outlined in the Operations Manual, of any safety or hazardous conditions that may exist. City or its contractor shall provide safety training regarding the fueling facility to Concessionaire prior to date of occupancy of the QTA by Concessionaire. Concessionaire is responsible for and agrees to hold City harmless for Concessionaire's misuse or negligent use or operation of the fueling system and any damages or injuries incurred as a result of such misuse or negligent use. H. Maintenance, Utilities, Security, and Custodial Services for QTA Property 1) Maintenance of Property Except where maintenance required exceeds that associated with normal wear and tear and is a result of the negligence of Concessionaire, its employees, agents, contractors and invitees, City agrees that during the term of this Agreement it shall keep, maintain and repair the Property, including Concessionaire's Tenant Improvements in its Exclusive Use Area and the cost for performing such services shall be included in the Base Rent as outlined in this Amendment. Concessionaire hereby expressly agrees at all times during the term of this Agreement to make all reasonable efforts to cooperate with City in keeping the Property in a clean, maintained, and in a sanitary condition. City agrees to perform all required maintenance of City's Fuel System. City shall also ensure that monthly leak detection is fully operational and in compliance with all local, state, and federal laws, regulations, and ordinances governing the operation of such Fuel System. Concessionaire shall have no responsibility to remove or permanently close the fuel storage tanks installed by the City.Concessionaire shall have no responsibility for City's maintenance, City's leak detection, or City's operation of theCity's Fuel System. Concessionaire shall not be liable to the City or any regulatory agency or agencies having jurisdiction over the operation of City's Fuel System for the violation of any local, state, and federal laws governing the operation of such Fuel System notwithstanding Concessionaire's responsibility as stated in Section H(11) herein. Concessionaire shall not be responsible for the release and clean -up of any Hazardous Substance as defined herein from the Fuel System, except when caused by acts or omissions of Concessionaire. Concessionaire shall not be deemed to be the operator of City's Fuel System, as the term `operator, is defined in any local, state, or federal laws governing the operation of the Fuel System. 2) Utilities City shall provide standard heat, electricity, and air conditioning in the Exclusive and Common Use Areas on the QTA Property. Payment for these services shall be paid by Concessionaire as part of the Base Rent. In cases where Page 10 of 16 QTA Amendment- Dollar,Thrifty 11 -1 -12 the City furnishes and delivers natural gas, electricity or water /sewer to the Property, the City does not guarantee the continuity or sufficiency of such supply, but the City will make reasonable efforts within the City's control to ensure such delivery. The City will not be liable for interruptions or shortages or insufficiency of supply or any loss or damage of any kind or character occasioned thereby if the same is caused by accident, act of God, fire, strikes, riots, war, inability to secure a sufficient supply from the utility company furnishing the City, or any other cause. Whenever the City shall find it necessary for the purpose of making repairs or improvements to any utility supply system it shall maintain, following consultation with Concessionaire, it shall have the right to suspend temporarily the delivery of natural gas, electricity or water. However, City agrees to make reasonable efforts to cause minimal disruption when possible. 3) Information Technology and Telephone Services: Concessionaire shall be responsible, at its sole cost, for providing all telephone and data services for its use and for obtaining any necessary permits. Systems installed by one Concessionaire shall not adversely affect other Concessionaires, tenants, or City. 4) Security of Property City shall coordinate and enforce secured access to the Property for Concessionaire. Concessionaire shall abide by all security directives of the City. J. Customer Facility Charge ( "CFC "): Concessionaireis required to collect and remit to the City within twenty (20) calendar days following the end of the month in which the fee is collected, the total CFCs on all vehicle rental transactions originating at the Airport. City hereby agrees that during the term of this Agreement, CFC revenues collected by Concessionaire and remitted to City shall be used to offset Concessionaire'sequal allocation of Base Rentand Market Share Base Rent as called for in this Amendment. If for any reason the CFC's collected, or any portion thereof, are insufficient to cover anticipated expenses identified in this Amendment, then any deficiency in the amounts otherwise owed by Concessionaire to City under this Amendment shall be paid to the City by Concessionaire as part of Base Rent as calculated in accordance with this Amendment during the applicable contract year.The City may adjust the amount of the CFC during the Term of this Amendment following consultation with the Concessionaire. K. Delinquency Charge: Concessionaire agrees that in the event payments to the City for any fees and charges are not received by the City on or before the respective due dates, as set forth in this Amendment, Concessionaire shall pay to the City a delinquency charge of one and one half percent (1 -112 %) of the amount due to City, for each month, calculated daily, that the amount due remains unpaid. However, the City agrees to provide written notice of such delinquency prior to assessing such charge for a first occurrence. Payments due the City shall be received by the City only on normal business days, Monday through Friday, and shall not be considered late if the date due falls on a weekend or legal City holiday provided payment is received on the next business day. A yearly schedule of City holidays shall be provided to Concessionaire upon request. Payment by Concessionaire and acceptance by City of a delinquent charge shall not be construed as a waiver or forfeiture of any other rights or remedies of the City contained elsewhere in this Page 11 of 16 QTA Amendment- Do11ar,Thrifty 11 -1 -12 Agreement, or as provided by law. For the purposes of this section, the date payments are received by City shall be the U. S. Postal Service cancellation date on the envelope transmitting the payment, or the date such payment is received by an authorized representative of the City if the payment is hand delivered. In the event of a dispute as to the amount to be paid, the City may accept without prejudice the sum tendered and, if a deficiency is determined, the foregoing delinquency charge shall apply only to such deficiency. The City may waive, for good cause, in its sole discretion, any delinquency charge upon written application of Concessionaire. L. Insurance: With regards to the QTA and any other property described in this Amendment, Concessionaire agrees to obtain and maintain all insurances as described in Exhibit "E" to the Original Agreement and shall name the City as additional insured as its interests appear hereunder for liabilities arising out of the conduct of Concessionaire, its officers, employees or agents for the Commercial General Liability and Business Auto Liability Insurance, with a waiver of subrogation in favor of the City for worker's compensation. Concessionaire shall be responsible to obtain all property insurance to insure Concessionaire's own property. However, the "Environmental Impairment Liability' description in Exhibit E is modified to read as follows: Environmental Impairment Liability to include $1,000,000 per claim Broad Form Pollution Liabi I ityCove rage Third Party Clean Up Concessionaire's Environmental Impairment policy coverage applies only to claims, damages, suits, judgments that are due to the negligence or wrongful acts of concessionaire, its officers, employees or agents. Concessionaire's Environmental Impairment policy coverage does not apply to any claims, damages, suits, judgments, clean up that are due to the acts of the City or any third -party contracted by the City to operate the QTA. City shall obtain the following insurance coverage to cover the City's exposures for the QTA: Property insurance for City owned facilities; and Storage Tank Liability to cover only City's liability exposures. M. Condition of the Property: Except as may be expressly provided elsewhere in this Agreement, the taking of possession of the Property by Concessionaire shall in itself constitute acknowledgment that the City shall not be obligated to make any Tenant improvements or modifications thereto. Concessionaire shall not be liable for any pre- existing conditions, latent defects, or damage not caused by Concessionaire. Concessionaire shall have no liability arising out of or in any way relating to the existence of any hazardous materials placed on, in or under the Property by any person or entity other than Concessionaire or any person or entity acting for, by or through Concessionaire or with Concessionaire's permission or acquiescence Page 12 of 16 QTA Amendment- Do11ar,Thrifty 11 -1 -12 N. Reserved Easements: The City reserves to itself and the right to grant to others in the future nonexclusive utility easements (including easements for construction, maintenance, repair, replacement and reconstruction) over, under, though, across, or on the Property in locations that will not unreasonably interfere with Concessionaire's use thereof. The City retains all mineral rights on the Airport property. O. Obligations of the City: The City agrees that use of the Property shall be limited to rental car companies with an On- Airport Rental Car Concession and Lease Agreement executed with the City. City reserves the right to retain third parties to operate, repair and maintain the Property, including without limitation, to operate and maintain the fueling system. P. Default: Either party may terminate the use of the QTA for other party's noncompliance of any terms of the Original Agreement or for noncompliance with terms of this Amendment, upon failure to cure after issuance of a thirty (30) days written notice. If this Amendment is terminated for Concessionaire's noncompliance with the terms of this Amendment or for Concessionaire's noncompliance with the terms of the Original Agreement and this Amendment, then the Concessionaire shall be liable to City for payment of remaining equal rent payments for the remainder of the Original Agreement term. City shall invoice and Concessionaire shall remit payment within thirty days for such remaining rental payments. In the event City subleases the Exclusive Use Areas to another concessionaire as a result of any Default termination, City will apply any rent received against the rent obligations of Concessionaire, but in no circumstances, will the amount applied exceed the total rent obligation. Q. Effective Date and Term: 1) The Effective Date of this Amendment is , 20_, subject to final City Council approval. Notwithstanding that, Concessionaire may occupy the Property on the date the Certificate of Occupancy is issued by the City Building Official for the Property or upon the Date of Beneficial Occupancy, whichever occurs first. As part of the transition plan, (described in Article IV (q) of the Original Agreement), from the existing Service and Maintenance Facilities ( "Facilities ") to the QTA, if Concessionaire occupies the QTA before the Effective Date, Concessionaire shall continue to pay rents for the existing Facilities under the Original Agreement through the close of business the day before the Effective date. Beginning on the Effective Date, rent and fees shall be paid pursuant to the QTA based annual budget. As of the close of business the day before the Effective Date, rents for the existing Facilities shall cease. However, notwithstanding the foregoing, Concessionaire shall continue to pay full rent for the existing Facilities until said existing Facilities are completely vacated by Concessionaire. Upon the Effective Date of this Amendment, the Term of the Original Agreement shall be extended for a new base period such that the Term of the Original Agreement and this Amendment are identical and such Term shall be extended for a new base period of five (5) years commencing on the Effective Date and ending on the last day of the fifth (5t") full fiscal year thereafter ( "Base Term "). Upon the Effective Page 13 of 16 QTA Amendment- Do11ar,Thrifty 11 -1 -12 Date of this Amendment the use of "Term" and "Base Term" shall apply to the Original Agreement and this Amendment. 2) Renewal Option: Upon the expiration of the Base Term, and upon the mutual agreement of the City Manager or his designee and Concessionaires not considered to be in default under the terms of the Amendment or the Original Agreement, Concessionaire will have two (2) separate, successive options (each a "Renewal Option ") to extend the term for additional periods of five (5) years (each a "Renewal Term "). The first Renewal Term will commence upon the expiration of the Base Term. Each successive Renewal Term will commence upon the expiration of the previously exercised Renewal Term. The first Renewal Option, upon the mutual agreement of the City Manager or his designee and the numeric majority of all Concessionaires not considered to be in default under the terms of the Amendment or the Original Agreement, may be exercised by written notice from Concessionaire to the City Manager or his designee not later than six (6) months prior to the expiration of the Base Term. Subsequent Renewal Options may be exercised by written notice from Concessionaire to the City Manager or his designee not later than six (6) months prior to the expiration of the previously exercised Renewal Term. Each Renewal Term will be upon the same terms and conditions as during the Base Term, except as otherwise provided. 3) Termination: Concessionaire may terminate the Original Agreement and this Amendment upon the expiration of the initial BaseTerm or any Renewal Term with no further obligations other than what is contained in the Original Agreement and this Amendment. 4) Upon the Effective Date, the Minimum Annual Guarantee ( "MAG ") payments will be recalculated to eighty -five percent (85 %) of ten percent (10 %) of the average of the most immediate prior twelve (12) months of Gross Revenues as such term is defined in the Original Agreement.At the commencement of each exercised Option period, the MAG for any exercised option periods shall also be recalculated at eighty -five percent (85 %) of ten percent (10 %) of the average of the most immediate prior twelve (12) months Gross Revenues at the commencement of each option period. In the event that extraordinary conditions arise that will significantly impact the operations of Concessionaire, at the discretion of the Airport Director, the City agrees to consult with Concessionaire on the potential for adjustment of the MAG. Concessionaireagrees to comply with any request to provide adequate background information detailing the basis for the request and present the same to the Airport Director for review. Any adjustments will be at the sole discretion of the City. 5) The right granted in the Article VI of the Original Agreement with respect to Concessionaire's use or construction of underground or aboveground storage tanks is explicitly repealed. Concessionaire shall not have right to use or construct any existing underground storage tank or aboveground storage tank following the effective date of this amendment. 6) Concessionaire must vacate the Service and Maintenance Facility Premises allocated under the Original Agreement for service and maintenance facilities at the Airport within two (2) weeks of written notification from the Airport Director. City will remove all improvements from the existing facilities and if remediation is required, Page 14 of 16 QTA Amendment- Do11ar,Thrifty 11 -1 -12 the cost of any such remediation shall be the responsibility of the Concessionaire or entity that caused the requirement for remediation. City will consult with Concessionaire as to the scope of remediation services required; however, it is agreed that all remediation will be sufficient to meet or exceed and local, State, and /or Federal requirements. Concessionaire will be notified of the improvement removal process and will be given the opportunity to be present at the removal, testing and remediation upon the Premises. Upon completion of the remediation, any payment due shall be remitted to the City on the fifteenth (15th) of the month following invoice. If there is any property remaining after such date that must be disposed of by the demolition contractor at an additional expense, Concessionaire shall pay all costs for disposal if such property is not removed after ten (10) days' written notice by Airport Director to Concessionaire. 7) Article III Sections k, I, m and Exhibit C, of the Original Agreement are repealed upon effective date of this Amendment. Gasoline dispensed in accordance with the Terms of the Amendment at the Property shall be excluded from Article VI n of the Original Agreement. 8) All other terms and conditions of the previously executed Original Agreement between the parties which are not inconsistent herewith, shall apply to the use of the additional Property, and shall continue in full force and effect. R. Parking Space Sales Tax: Pursuant to Article 111 0) of the Original Agreement, Concessionaire shall pay monthly rent to the City for allocated Parking Spaces. As of the Effective date of this Amendment, Concessionaire shall, in addition to paying rent on said allocated Parking Spaces, also pay the applicable sales tax per month for each parking space allotted to Concessionaire. IN WITNESS WHEREOF,the parties hereto have themselves or through their duly authorized officers executed this Amendment, to be effective upon execution by the City Manager. EXECUTED IN DUPLICATE ORIGINALS this day of , 2012, by the authorized representative of the parties. ATTEST: Armando Chapa City Secretary QTA Amendment- Do11ar,Thrifty 11 -1 -12 City of Corpus Christi, Texas Ron Olson City Manager Page 15 of 16 CONCESSIONAIRE: DTG Operations, Inc., an Oklahoma corporation, doing business as Dollar Rent A Car and as Thrifty Car Rental By: Name: Title: Date: STATE OF _ COUNTY OF This instrument was acknowledged before me on , 2012, by , as Operations, Inc., an Oklahoma corporation, on behalf of said corporation. Notary Public QTAAmendment- Dollar,Thrifty I1 -1 -12 of DTG Page 16 of 16 CONCESSIONAIRE: DTG Pperations, Inc., Dollar Rent A Car a d Thr' ent By: '4��Zz" Name: 1Ci►r b{r lam, . y, .,\ lu Title: V� c c V11 1: "-c--k- Date: TAB 2� i 3 STATE OF 6y-I -A 1MrAk COUNTY OF q A \,SA an Oklahoma corporation, doing business as This instrument was acknowledged before me on 'Zc, n 8 , 2@t-9, by LC- (vVl{x ✓�►� 0. Vr,,H\ , as V;'t P'-e S I-Al of DTG Operations, Inc., an Oklahoma corporation, on behalf of said corporation. ` ���111tllltlrll��r� y,�C 0 � .,,::�, •TAR y,, so -` ��� �� � � � i #01011110 S Z = Notary Public _ EXP.07/07/13 •` _ Page 16 of 16 QTA Amendment- Do11ar,Thrifty 11 -1 -12 cn ID _0 21- I z F 0 cD 0 C-) C) m 02 - -------- - ------------ - - - - - - - --- ------- - z "o 0 fl T QO C7, a- _0 D I'D 0 _0 0 o ID n -0 c U, Cn co - �CD 0 ---- -- --- Q OD 3 0 o - -- ---- ------ 0 n o 0 w a- 220 0 n r) 3 0 cn ID _0 21- I Q 0 c m - -------- - ------------ - - - - - - - --- ------- - z Q 0 c m z "o 0 fl T QO C7, a- _0 D I'D 0 _0 0 o ID n -0 c U, Cn co ID 0 Q OD 3 0 o n cy, w 0 3 3 220 0 n r) 3 0 0 3 3 o 3 n 0 U, "J 0 01 0 C, 0 0 U, > O 70 M > "o 0 fl T QO C7, a- D 0 o ID n -0 c U, Cn co ID o� rJO I I ®I C7 C n S 3 I ' 1 i 4 a I ` { 6 Z y r S D a Oy�D : o < -. o N CD o D i 00 o f�D O 7 1i c� 00 D Q�t J o o CD o 0 0 0 0 W N--------------- _ — ±- ._--- _-�-�- uV v vV uV Vi D C= cn cn v+ cn cn ,Z fll T T T T T 7-1 -- _2 W i I I co nn xN 32 E3 > #Z -n o m 0 > G, (D C-) fp C13 0 D) m U3 X CD m O n 0 3 o 3 3 0 3 0 3 0 (D CD (D 0 m .w mom= . M. m wm--m I we W, FIRST AMENDMENT TO THE ON- AIRPORT RENTAL CAR CONCESSION AND LEASE AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND EAN HOLDINGS, LLC WHEREAS, the City of Corpus Christi and EAN Holdings, LLC, a Delaware limited liability company and wholly owned subsidiary of Enterprise Holdings, Inc., doing business as Enterprise Rent -A -Car, a company operating under the laws of the State of Texas ( "Concessionaire ") previously executed an On- Airport RentalCar Concession and Lease Agreement dated November 1, 2009 ( "Original Agreement "); WHEREAS, the City is in the process of constructing a new consolidated service facility and fueling facility, referred to as the Quick Turn Around Facility ( "QTA ") to be used for fueling, cleaning, minor maintenance, staging, and storing of the rental car fleet; WHEREAS, the parties hereto desire to amend the Original Agreement to incorporate the use of the new QTA; NOW, THEREFORE, the parties agree as follows to amend the Original Agreement by adding new Article XXVIII ( "Amendment ") as follows: Article XXVIII Quick Turnaround Facility A. Definitions: The following terms, when used in this Article XXVIII with the initial letter(s) capitalized, whether in the singular or the plural, shall have the following meaning. Capitalized terms not defined below shall have the meaning as set forth in the Original Agreement: "Airport": Corpus Christi International Airport. "Airport QTA Fund ": Fund designated by the Airport for CFCs collected by Concessionaire and paid to the Airport. "Amendment ": This First Amendment to the On- Airport Rental Car Concession and Lease Agreement that adds a new Article XXVIII. "Base Rent" or" Rent ":An amount net of CFCsrequired to offset the QTA costs as identified in Sections C and D below. "CFC" or "CFCs ": The Customer Facility Charge, as determined from time to time by the City as related to the QTA and required to be collected by the Concessionaire and the Other Concessionaires for all transactions conducted at the Airport. "City":The City of Corpus Christi, Texas. Page 1. of 16 QTA Amendment- Enterprise 11 -1 -12 "Common Use Areas) ";AII facilities and land contained in the QTA that are available for use by Concessionaire and the Other Concessionaires for their common use as identified in Exhibit A and Exhibit C attached hereto. "Concessionaire ": Any individual or business entity that has an existing lease or concession agreement with the Airport for the purpose of renting vehicles to Customers who o riginate from Air port p roperty, as s tated in Co rpus Ch risti Cit y O rdinance N o. 028575. "Date of Beneficial Occupancy ": Following issuance of a Certificate of Occupancy, the date upon which the tenant substantially occupies the premises and conducts the primary activities associated with the operation of the concession. "Director' or "Airport Director ": The Director of Aviation employed by the City or his or herdesignee. "Exclusive UseArea(s) ":All facilities available and leased only to Concessionaire and no other for Concessionaire's exclusive use as identified in Exhibit B attached hereto. "Fuel System ":Shall include all the fuel storage tank(s), product piping, vent piping, fuel dispensers, nozzles, hoses, Stage I and II vapor recovery equipment, if applicable, under dispenser containment sump, turbine sump, fill port, spill buckets, and all leak detection devices. "Improvements Buildings, landscaping and all other permanent improvements constructed or modified from time to time at the premises. "Heavy Vehicle Maintenance ": Any type of body work or work performed on the vehicle drivetrain, and anything beyond permissible minor maintenance. "Land Rent": Land Rent shall be that amount set by the City as rent for the land occupied under this Amendment which will be based on an appraisal by a Registered Third Party Appraiser based on comparable facilities to be updated every five (5) years beginning in April, 2016. "Market Share or Market Share Percentage ": The amount, expressed as a percentage, equal to the quotient of (i) Concessionaire's on- Airport Gross Revenues as defined in Article IV, Section (i) of the Original Agreementduring the immediately preceding twelve (12) months' period, divided by (ii) the sum of the on Airport Gross Revenues of Concessionaire and the Other Concessionaires during such twelve (12) months' period. "Operations Manual ": The manual that will be developed by the City and Concessionairesupon occupancy of the QTA that defines the daily operating procedures for conducting operations at the QTA, the use of Common Use facilities, security and safety procedures that will be enacted, and conflict resolution processes. The Operations Manual is subject to amendment and change. The most current master version will be kept in the office of the Director. "Ordinance ": Corpus Christi Ordinance No. 028575, Amending the Code of Ordinances, Chapter 9, "Aviation," by Creating New Section 9 -68, Entitled "Car Rental Customer Facility Charge," passed by the Corpus Christi City Council on April 20, 2010. Page 2 of 16 QTA Amendment- Enterprise 11 -1 -12 "Original Acireement ":The previously executed On- Airport Rental Car Concession and Lease Agreement by and between the City and Concessionairedated November 1, 2009. "Other Concessionaires ": All on- Airport rental car Concessionaires t hat ar a parties toan Original Agreement with the City, other than Concessionaire, and any Replacement Rental Car Company (as defined below). "QTA' or "Property": Means the City -owned Quick TurnAround Facility Area as depicted on the attached Exhibit A, Exhibit B, and Exhibit C attached hereto. "Replacement Rental Car Company ": A rental car company who has executed an Original Agreement sublease or assignment agreement, approved in writing by the Director, to replace Concessionaire or an Other Concessionaire that defaulted under a lease with the City under terms similar to the Original Agreement. "Tenant Improvements ": Any improvements, furniture, trade fixtures or equipment construct o r p laced u pon t he P roperty by Concessionaire, O ther Co ncessionaire, o r Replacement Rental Car Company or the City. "Vehicle Stacking Spaces ": Those Common Use Areas as depicted on Exhibit A, also referred to herein as queuing lanes, for use in common by Concessionaire for parking its vehicles for use as rentals at the Airport in the QTA. The Spaces will be subject to adjustment as called for in this Amendment. "Vehicle Storage Spaces ": Those Common Use Areas as depicted on Exhibit A, for use in common by Concessionaire for storing its vehicles for use at the QTA. The spaces will be subject to adjustment as called for in this Amendment. B. Additional Premises The City does lease to Concessionaire, and Concessionaire does lease from the City, the additional property at the QTA as depicted on Exhibit A, Exhibit B, and Exhibit C, for Concessionaire's Exclusive Use and Common Use Areas. An Operations Manual will be on file in the Director's office and may be amended from time to time that will define the operating procedures that will be in place for use of the Additional Premises. 1) The CommonUse Areas shown on Exhibit A and Exhibit C as allocated accordingto SectionEbelow; shall include the following: a. - Lanes for queuing Concessionaire'srental car fleet at the QTA for: i. Fueling ii. Cleaning of vehicles iii. 12 fuel dispensing bays iv. 3 car wash bays b. Employee parking spaces C. In- fleeting and out - fleeting parking lanes d. Short term vehicle storage Page 3 of 16 QTA Amendment- Enterprise 11 -1 -12 e. Fuel farm serving QTA 2) The Exclusive Use areas shown on Exhibit B include the following: a. Eight hundred fifty (850) square feet of office space for each Concessionaire's exclusive administrative office purposes; b. Seven hundred seventy five (775) square feet for maintenance bay for each Concessionaire's exclusive use. C. Base Rent: 1 } Concessionaire shall have Exclusive Use and Common Use of the portions of the Property as depicted in attached Exhibits A, B, and Cfor Concessionaire's purposes and subject to reallocation as provided in Section E below. 2) Base Rent of the Exclusive Use and Common Use Areas as depicted in Exhibits A, B, and C attached shall be calculated on an annual basis. The Base Rent requirement shall be the sum of the following expenses, all of which are eligible: a. All costs of construction whether funded with cash or any borrowing instrument b. Debt service coverage requirement C. Land rent d. Major maintenance costs e. Repair and replacement account funding f. City provided insurance related to the QTA g. Utility costs associated with the QTA h. Direct labor costs for maintenance and operation of the QTA i. Operating and maintenance costs associated with operating the QTA j. Administrative costs associated with the management of the QTA k. All permits and licenses directly related to the QTA I. Landscaping on land leased as part of the QTA m. Bad debt from vendor or concessionaire related to the QTA n. Other reasonable costs incurred by the City relating to operation of the QTA o. A deficit of prior year(s)' CFC collections applied toward Base Rent CFCs collected shall first be applied to offset the expenses in the priority identified above. T he ex penses I isted abo ve au thorized by t he O rdinance, inc orporated herein by reference,apply only to Concessionaire's operations at the QTA and not to Concessionaire's operations at any other location at or outside of the Airport. In the event the total CFCs collected are available to fully offset the expenses in any budget year, then no Base Rent will be due. If the total CFCs collectedare not sufficient to offset the expenses as identified above, Base Rent will be established for any deficit in the total amount required. Base Rent will be charged based on the following formula: 1. Fifty percent (50 %) will be divided equally among the Concessionaires based on their share of Exclusive Use Area. Payment for the portion of Base Rent Page 4 of 16 QTA Amendment- Enterprise 11 -1 -12 charged based on equal allocation among Concessionaires is due and payable on the first day of the month for which rent is due. Following the completion of the contract year and the final audit by the City, the City will recalculate the requirement for each Concessionaire against the actual Base Rent and CFCs received and if any shortfall payment is due the City, the City will invoice Concessionaire for any amounts due and payment shall be due and payable on the fifteenth (15th) of the month following invoicing. If the Base Rent payment, less CFCs, paid to the City during the year exceeds the amount due, the City will issue a credit to the Concessionaire for the amount due by the fifteenth (15th) of the month, subject to the process defined in Section 3 of Exhibit "D° to the Original Agreement. 2. Fifty percent (50 %) will be based on Market Share of Concessionaires. Payment for the portion of The Base Rent based on Market Share that will be effective for that contract year will be projected at the beginning of the contract year based on Market Share and payment will be due and payable for this portion of the Base Rent on the first day of the month for which rent is due. Following the completion of the contract year and the final audit by the City, the City will recalculate the Market Share Base Rent requirement based on actual payments and CFCs collected and remitted. If any payment is due the City, the City will invoice Concessionaire for any amounts due and payment shall be due and payable on the fifteenth (15th) of the month following invoice. If the estimated Base Rent, less CFCs, payment paid exceeds the amount due, the City will issue a credit to the Concessionaire for the amount due on the fifteenth (15th) of the month, subject to the process defined in Section 3 of Exhibit "D" to the Original Agreement. Notwithstanding the foregoing, to whatever extent possible, if the total CFCs collected are not sufficient to offset the Base Rent expenses set out above, such shortfall will be calculated at the end of the fiscal year and will be rolled over to the next fiscal year so that, to the extent possible and at the discretion of the Airport Director, Concessionaire will not be required to submit payment to the City for such shortfall but, instead, may overcome such shortfall with a future surplus of CFCs collected. Repairs required as a result of direct damage by Concessionaire employees, agents, designees, orcontractors, normal wear and tear excepted, will be charged back to the responsibleConcessionaire. A minimum of sixty (60) days prior to the commencement of occupancy and for all subsequent fiscal years, the City shall prepare an expense budget identifying the expenses in the same manner as identified above and a projection of the CFC revenues anticipated to be collected and shall submit such expense budget to the Concessionaire for review and comment. Following consultation with Concessionaire, the City will establish the Base Rent that will be effective for that fiscal year and may adjust the amount of any CFC during the term of the Agreement to cover expenses and to avoid any contingent Base Rent. The Ordinancestates in pertinent part: "Section 9- 68.03: Customer Facility Charge Page 5 of 16 QTA Amendment- Enterprise 11 -1 -12 (B) The CFCs must be used to pay, or reimburse the Airport, for the costs associated with the design, acquisition, planning, development, construction, operation, maintenance, repair, equipment, and replacement of facilities and related improvements made use of in or connected to the business of renting cars at the Airport. Any or all of the CFCs collected may be pledged to the punctual payment of debt service on obligations (and any other pecuniary obligation) issued by or on behalf of the City for the benefit of the Airport for the cost of the car rental portion of facilities, parking lots, buildings, and other improvements, and to create and maintain reasonable operating and maintenance reserves as well as capital asset repair and replacement reserves. Eligible costs for the car rental facilities and related improvements include all costs, fees, and expenses associated with the design, acquisition, planning, development, construction, equipping, operation and maintenance, capital repair and replacement, and site improvement. Nothing herein shall be construed to make fees, costs, or expenses incurred in tenant improvements for space exclusively used by a Car Rental Company ineligible. "Equipping" for the purposes of this section is limited to providing necessary equipment within the common use areas and car maintenance bays of the car rental facilities. "Operation and maintenance" for the purposes of this section does not include fees, costs, or expenses incurred for or associated with consumables, such as paper supplies, oils and lubricants, or other products used in the business of the car rental facilities." "Section 9- 68.05: Collections. (A) All CFCs collected by all Car Rental Companies are and shall be funds held by the Car Rental Companies in trust for the City for the benefit of the Airport and recognizing the third party beneficiary status of any holders of any debt obligations issued by the City for the benefit of the Airport. Car Rental Companies and their agents hold only a possessory interest in theCFCs and no equitable interest. All Car Rental Companies shall segregate, separately account for, and disclose all CFCs as trust funds in their financial statements and shall maintain adequate records that account for all CFCs charged and collected. Failure by a Car Rental Company to segregate the CFCs shall not alter or eliminate their trust fund nature. The Airport shall have the right to audit the CFC records of a Car Rental Company upon reasonable notice. (B) All Car Rental Companies shall remit all CFC funds that were collected or should have been collected from its Airport car rental customerson a monthly basis to the Airport. The CFCs shall be remitted on the 20th day of the month following the month the CFCs were collected. Failure of a Car Rental Company t o s trictly c omply with t his s ubparagraph s hall be c onsidered a material breach of the Car Rental Company's authorization to do business at the Airport." "Section 9- 68.06.Annual Rate Adjustments. (A) Each April, the Airport Director shall recalculate the Customer Facility Charge to be effective June 5 of the same year to recover the amount equivalent to the remaining portion of the amount pledged by the City to the Page 6 of 16 QTA Amendment- Enterprise 11 -1 -12 payment of debt service on obligations (or any pecuniary obligation related thereto) issued by or on behalf of the City for the benefit of the Airport. The Airport Director shall consider any written comments of the Car Rental Companies regarding the adjustment, but the Airport Director, with the concurrence of the Director of Financial Services, has the sole and final determination of the amount. (B) Notwithstanding anything herein to the contrary, the Customer Facility Charge shall not be less than $3.50 per Customer per Transaction Day." Following the completion of the year -end audit, in the event that CFC collections exceed the projected Base Rent requirement plus any projected major maintenance or projected capital investment requirements, the City will reimburse Concessionaire from the Airport QTA Fund for any Base Rent, as detailed in Section C(2) herein, actually paid by Concessionaire in prior year(s), in the form of a check to be paid by the twentieth (20th) day of the following month, during the term of this Amendment, so that Concessionaire is made whole as to their costs that the Ordinance authorizes to be paid by CFCs. D. Allocation and Reallocation ofnumbered queuing lanes as shown on ExhibitA: 1 } Concessionaire numbered queuing lanes will be allocated on an annual basis effective Au gust 1 o f e ach y ear o f t he Agreement a ccording to t he respective Market Share Percentages for the previous twelve (12) month period. Allocation of rows will be made in full row allocation only. A single row will not be allocated to more than one Concessionaire. In order to achieve an additional row upon annual re- allocation, a Concessionaire must have a market share percentage that commands 60% or more of a full row. 2) The Airport Director, in consultation with Con cessionai re, shall annually determine the allocation of each Concessionaire's numberedqueuing lanes , based on the previous twelve (12) month period market share and in keeping with full row allocation as detailed in E(1) above. The Airport Director's determination shall be final and binding, provided, however, that if the Airport Director determines that a Concessionaire's allocation is to increase, that Concessionaire may decline the reallocation and maintain their existing allocation. If a Concessionaire declines an increased allocation, it will be at the discretion of the Director to reallocate to the other Concessionaires based on the other Concessionaires' requests, but under no circumstance will there be less than a 100% allocation of all available numbered queuing lanes. Concessionaire will be provided an updated Exhibit A each year of this Amendment that will show the annual allocation by Concessionaire. E. Exhibits: If the Property is reallocated by the City, the Exhibits to this Agreement that are affected by such reallocation shall be superseded by replacement Exhibits provided by the City. F. Required and Permitted Uses: 1) The Property shall be used by Concessionaire only for the fueling, vehicle stacking, vehicle storing, washing, cleaning, detailing,and minor maintenance ofConcessionaire's vehicle inventory used in connection with its Original Agreement Page 7 of 16 QTA Amendment- Enterprise 11 -1 -12 at the Airport, and uses incidental and reasonably related thereto. Notwithstanding the foregoing requirement, Concessionaire may use the Property for the fueling and washing of Concessionaire's vehicle inventory not rented at the Airport facility only to the extent that such fueling and/or washing does not cause undue inconvenience or maintenance costs to the other Concessionaires or the Airport. Upon complaint by the Airport or a Concessionaire of such undue inconvenience or maintenance costs, the Airport Director has sole discretion to allow or disallow fueling and /or washing of Concessionaire's vehicle inventory not rented at the Airport facility. Examples of permissible minor maintenance include services such as oil changes, tire replacement, brake maintenance, windshield repair, and vehicle fluid replacement. Any other maintenance beyond this general description performed at the QTA is not permitted except as expressly authorized in this Agreement or in writing by the Airport Director. The Airport Director will have sole discretion to authorize maintenance other than what is identified in this Agreement and will take into consideration the impact of any such requests on the Concessionaire considering environmental liability, public perception, and overall airport operations. If the Airport Director authorizes maintenance other than what is identified in this Agreement for one Concessionaire, the Airport Director will authorize such maintenance in writing to all Concessionaires. 2) The Property shall not be used for any other purpose, and specifically shall not be used for Heavy Vehicle Maintenance, storage of any vehicles used in conjunction with any off - Airport rental car concession, storage of out -of- service and damaged vehicles for longer than twenty one (21) calendar days, and sales of new or used vehicles, o r au ctions o r I iquidation s ales. The Air port D irector, in h is /her s ole discretion, may allow occasional extended storage period for damaged vehicles, when the Airport Director agrees such extension is necessary due to extenuating circumstances identified by Concessionaire. 3) If any governmental license or permit, other than a certificate of occupancy, shall be required for the proper and lawful conduct of Concessionaire's business on the Airport, Concessionaire shall procure and maintain such license or permit, at its sole cost and expense, and shall submit the same, upon request, for inspection by the City. Concessionaire shall at all times comply with terms and conditions of each such license or permit. However, City shall be responsible to comply w ith all regulations, laws, and ordinances and shall obtain all necessary licenses and permits required to operate the QTA, including the fueling facility and wash bays, and City shall be responsible for compliance with all applicable regulations regarding reporting requirements for the QTA, including the fueling facility. 4) Compliance with Laws: Concessionaire shall not use or permit the Property, or any part thereof, to be used in whole or in part for any purpose other than as set forth above, nor for any use, operation or activity in violation of any present or future laws, ordinances, general rules or regulations at any time applicable thereto of any public or governmental authority. In the event that compliance reporting is required. Concessionaire agrees to make all reasonable efforts to cooperate with the City in providing any required information. G. Fueling Facilities and Charges: Page 8 of 16 QTA Amendment- Enterprise 11 -1 -12 1) City agrees to purchase and have delivered to the Property the required fuel to be utilized by the Concessionaire for the purpose of conducting the concession operation. Concessionaire agrees to purchase and use only the fuel from the fueling station at the Property for all vehicles used as rental vehicles at the Airport. Failure to purchase fuel from the QTA shall be considered a material default under the terms of this Agreement; unless such fuel in unavailable from the City or if the City provides prior written consent. 2) The cost per gallon (U.S. Gallon) charged to Concessionaire will be based on the City's contract cost per gallon (including all applicable taxes, surcharges, delivery charges, fees and all discounts and volume rebates obtained by City) plus five cents ($0.05) per gallon. 3) City shall make all good faith efforts to obtain an acceptable grade and quality of fuel at the lowest cost available and have an adequate fuel supply available at all times unless the availability of fuel is disrupted due to reasons beyond the reasonable control of the City. 4) City will provide Concessionaire fuel keys in sufficient quantity reasonable to allow Concessionaire to fuel its vehicles without disruption as determined by the Airport Director in consultation with the Concessionaire, which activate both the fuel pumps as well as the entrance and exit gates. City's fuel system will track fuel dispensed with a computerized fuel management system. Any shortages or variations of inventory not directly attributable to the actions of the City will be charged to Concessionaire based on Market Share if the shortage cannot be reconciled. 5) City w ill inv oice Concessionaire monthly for the fuel dispensed at the QTA by Concessionaire into its vehicle inventory, subject to Section G (1) herein.The invoice shall list the total amount of the gallons of fuel pumped by the Concessionaire for the preceding month, applicab[e taxes and destination charges, the price per gallon, and the $0.05dispensing fee per gallon due to the City. 6) Concessionaire shall pay the invoice on or before thefifteenth(15th) dayof the month following, the month for which fuel was provided, pursuant to Article 1V(e) of the Original Agreement Failure to pay invoices in a timely manner may result in City denying access to t he f uel system (deactivating Concessionaire's f uel keys), in addition to other remedies provided for in theOriginal Agreement, until all amounts owed to City are paid in full, though not without notice and opportunity to cure pursuant to Article Xlll g. of the Original Agreement. In the event that the Concessionaire desires to pay the invoice by credit card, any costs associated with processing the credit card payment will be added to the invoice and shall be remitted to the City in addition to the payment due. Failure to make payment following notice as called for in theOriginal Agreement shall constitute a default under the terms of the Original Agreement and the City will have the rights associated with Article XIII of theOriginal Agreement. 7) A security deposit in the form of a bond, certified check, cashier's check, or other form acceptable to the City equal to two (2) months' average fuel pumped for the previous six (6) months or if six (6) months of data is not available, the two (2) months of the average of theavailable data will be required prior to the activation of Concessionaire's access to the fuel system. If Concessionaire does not provide a Page 9 of 16 QTA Amendment- Enterprise 11 -1 -12 reasonable estimate for the purpose of establishing the security deposit requirement, the City will set the security deposit amount required at its sole discretion.City shall draw against such security deposit when Concessionaire does not remedy payment after notice and opportunity to cure set forth above in subsection (6). Concessionaire will be required to restore the security deposit balance to the required amount within five (5) working days of written notice of draw down. 8) City agrees to provide regular grade unleaded fuel to the Property on a timely basis. 9) Concessionaire agrees to use the fueling system and all associated apparatus in accordance with all safety instructions and shall immediately notify Airport personnelin writing, as outlined in the Operations Manual, of any safety or hazardous conditions that may exist. City or its contractor shall provide safety training regarding the fueling facility to Concessionaire prior to date of occupancy of the QTA by Concessionaire. Concessionaire is responsible for and agrees to hold City harmless for Concessionaire's misuse or negligent use or operation of the fueling system and any damages or injuries incurred as a result of such misuse or negligent use. H. Maintenance, Utilities, Security, and Custodial Services for QTA Property 1) Maintenance of Property - Except where maintenance required exceeds that associated with normal wear and tear and is a result of the negligence of Concessionaire, its employees, agents, contractors and invitees, City agrees that during the term of this Agreement it shall keep, maintain and repair the Property, including Concessionaire's Tenant Improvements in its Exclusive Use Area and the cost for performing such services shall be included in the Base Rent as outlined in this Amendment. Concessionaire hereby expressly agreesat all times during the term of this Agreement to make all reasonable efforts to cooperate with City in keeping the Property in a clean, maintained, and in a sanitary condition. City agrees to perform all required maintenance of City's Fuel System. City shall also ensure that monthly leak detection is fully operational and in compliance with all local, state, and federal laws, regulations, and ordinances governing the operation of such Fuel System. Concessionaire shall have no responsibility to remove or permanently close the fuel storage tanks installed by the City. Concessionaire shall have no responsibility for City's maintenance, City's leak detection, or City's operation of theCity's Fuel System. Concessionaire shall not be liable to the City or any regulatory agency or agencies having jurisdiction over the operation of City's Fuel System for the violation of any local, state, and federal laws governing the operation of such Fuel System notwithstanding Concessionaire's responsibility as stated in Section H(11) herein. Concessionaire shall not be responsible for the release and clean -up of any Hazardous Substance as defined herein from the Fuel System, except when caused by acts or omissions of Concessionaire. Concessionaire shall not be deemed to be the operator of City's Fuel System, as the term "operator" is defined in any local, state, or federal laws governing the operation of the Fuel System. 2) Utilities- City shall provide standard heat, electricity, and air conditioning in the Exclusive and Co mmon U se Ar eas o n t he Q TA P roperty. P ayment f or t hese services shall be paid by Concessionaire as part of the Base Rent. In cases where Page 10 of 16 QTA Amendment- Enterprise 11 -1 -12 the City furnishes and delivers natural gas, electricity or water /sewer to the Property, the City does not guarantee the continuity or sufficiency of such supply, but the City will make reasonable efforts within the City's control to ensure such delivery. The City will not be liable for interruptions or shortages or insufficiency of supply or any loss or damage of any kind or character occasioned thereby if the same is caused by accident, act of God, fire, strikes, riots, war, inability to secure a sufficient supply from the utility company furnishing the City, or any other cause. Whenever the City shall find it necessary for the purpose of making repairs or improvements to any utility supply system it shall maintain, following consultation with Concessionaire, it shall have the right to suspend temporarily the delivery of natural gas, electricity or water. However, City agrees to make reasonable efforts to cause minimal disruption when possible. 3) Information Technology and Telephone Services: Concessionaire shall be responsible, at its sole cost, for providing all telephone and data services for its use and for obtaining any necessary permits. Systems installed by one Concessionaire shall not adversely affect other Concessionaires, tenants, or City. 4) Security of Property- City shall coordinate and enforce secured access to the Property for Concessionaire. Concessionaire shall abide by all security directives of the City. J. Customer Facility Charge ( "CFC "): Concessionaireis required to collect and remit to the City within twenty (20) calendar days following the end of the month in which the fee is collected, the total CFCs on all vehicle rental transactions originating at the Airport. City hereby agrees that during the term of this Agreement, CFC revenues collected by Concessionaire and remitted to City shall be used to offset Con cessionaire'sequal allocation of Base Rentand Market Share Base Rent as called for in this Amendment. If for any reason the CFC's collected, or any portion thereof, are insufficient to cover anticipated expenses identified in this Amendment, then any deficiency in the amounts otherwise owed by Concessionaire to City under this Amendment shall be paid to City by Concessionaire as part of Base Rent as calculated in accordance with this Amendment during the applicable contract year.The City may adjust the amount of the CFC during the Term of this Amendment following consultation with the Concessionaire. K. Delinquency Charge: Concessionaire agrees that in the event payments to the Cityfor any fees and charges are not received by the City on or before the respective due dates, as set forth in this Amendment, Concessionaire shall pay to the City a delinquency charge of one and one half percent (1 -112 %) of the amount due to City, for each month, calculated daily, that the amount due remains unpaid. However, the City agrees to provide written notice of such delinquency prior to assessing such charge for a first occurrence. Payments due the City shall be received by the City only on normal business days, Monday through Friday, and shall not be considered late if the date due falls on a weekend or legal City holiday provided payment is received on the next business day. A yearly schedule of City holidays shall be provided to Concessionaire upon request. Payment by Concessionaire and acceptance by City of a delinquent charge shall not be construed as a waiver or forfeiture of any other rights or remedies of the City contained elsewhere in this Page 11 of 16 QTA Amendment- Enterprise 11 -1 -12 Agreement, or as provided by law. For the purposes of this section, the date payments are received by City shall be the U. S. Postal Service cancellation date on the envelope transmitting the payment, or the date such payment is received by an authorized representative of the City if the payment is hand delivered. In the event of a dispute as to the amount to be paid, the City may accept without prejudice the sum tendered and, if a deficiency is determined, the foregoing delinquency charge shall apply only to such deficiency. The City may waive, for good cause, in its sole discretion, any delinquency charge upon written application of Concessionaire. L. Insurance: With regards to the QTA and any other property described in this Amendment, Concessionaire agrees to obtain and maintain all insurances as described in Exhibit "E" to the Original Agreement and shall name the City as additional insured as its interests appear hereunder for liabilities arising out of the conduct of Concessionaire, its officers, employees or agents for the Commercial General Liability and Business Auto Liability Insurance, with a waiver of subrogation in favor of the City for worker's compensation. Concessionaire shall be responsible to obtain all property insurance to insure Concessionaire's own property. However, the "Environmental Impairment Liability" description in Exhibit E is modified to read as follows: Environmental Impairment Liability to include $1,000,000 per claim Broad Form Pollution LiabilityCoverage Third Party Clean Up Concessionaire's Environmental Impairment policy coverage applies only to claims, damages, suits, judgments that are due to the negligence or wrongful acts of concessionaire, its officers, employees or agents. Concessionaire's Environmental Impairment policy coverage does not apply to any claims, damages, suits, judgments, clean up that are due to the acts of the City or any third -party contracted by the City to operate the QTA. City shall obtain the following insurance coverage to cover the City's exposures for the QTA: Property insurance for City owned facilities; and Storage Tank Liability to cover only City's liability exposures. M. Condition of the Property: Except as may be expressly provided elsewhere in this Agreement, the taking of possession of the Property by Concessionaire shall in itself constitute acknowledgment that the City shall not be obligated to make any Tenant improvements or modifications thereto. Concessionaire shall not be liable for any pre - existing conditions, latent defects, or damage not caused by Concessionaire. Concessionaire shall have no liability arising out of or in any way relating to the existence of any hazardous materials placed on, in or under the Property by any person or entity other than Concessionaire or any person or entity acting for, by or through Concessionaire or with Concessionaire's permission or acquiescence Page 12 of 16 QTA Amendment- Enterprise 11 -1 -12 N. Reserved Easements: The City reserves to itself and the right to grant to others in the future nonexclusive utility easements (including easements for construction, maintenance, repair, replacement and reconstruction) over, under, though, across, or on the Property in locations that will not unreasonably interfere with Concessionaire's use thereof. The City retains all mineral rights on the Airport property. O. Obligations of the City: The City agrees that use of the Property shall be limited to rental car companies with an On- Airport Rental Car Concession and Lease Agreement executed with the City. City reserves the right to retain third parties to operate, repair and maintain the Property, including without limitation, to operate and maintain the fueling system. P. Default: Either party may terminate the use of the QTA for other party's noncompliance of any terms of the Original Agreement or for noncompliance with terms of this Amendment, upon failure to cure after issuance of a thirty (30) days written notice. If this Amendment is terminated for Concessionaire's noncompliance with the terms of this Amendment or for Concessionaire's noncompliance with the terms of the Original Agreement and this Amendment, then the Concessionaire shall be liable to City for payment of remaining equal rent payments for the remainder of the Original Agreement term. City shall invoice and Concessionaire shall remit payment within thirty days for such remaining rental payments. In the event City subleases the Exclusive Use Areas to another concessionaire as a result of any Default termination, City will apply any rent received against the rent obligations of Concessionaire, but in no circumstances, will the amount applied exceed the total rent obligation. Q. Effective Date and Term: 1) The Effective Date of this Amendment is , 20_, subject to final City Council approval. Notwithstanding that, Concessionaire may occupy the Property on the date the Certificate of Occupancy is issued by the City Building Official for the Property or upon the Date of Beneficial Occupancy, whichever occurs first. As part of the transition plan, (described in Article IV (q) of the Original Agreement), from the existing Service and Maintenance Facilities ( "Facilities ") to the QTA, if Concessionaire occupies the QTA before the Effective Date, Concessionaire shall continue to pay rents for the existing Facilities under the Original Agreement through the close of business the day before the Effective date. Beginning on the Effective Date, rent and fees shah be paid pursuant to the QTA -based annual budget. As ofthe close of business the day before the Effective Date, rents for the existing Facilities shall cease. However, notwithstanding the foregoing, Concessionaire shall continue to pay full rent for the existing Facilities until said existing Facilities are completely vacated by Concessionaire. Upon the Effective Date of this Amendment, the Term of the Original Agreement shall be extended for a new base period such that the Term of the Original Agreement and this Amendment are identical and such Term shall be extended for a new base period of five (5) years commencing on the Effective Date and ending on the last day of the fifth (5th) full fiscal year thereafter ( "Base Term "). Upon the Effective Page 13 of 16 QTA Amendment- Enterprise 11 -1 -12 Date of this Amendment the use of "Term" and "Base Term" shall apply to the Original Agreement and this Amendment. 2) Renewal Option: Upon the expiration of the Base Term, and upon the mutual agreement of the City Manager or his designee and Concessionaires not considered to be in default under the terms of the Amendment or the Original Agreement, Concessionaire will have two (2) separate, successive options (each a "Renewal Option ") to extend the term for additional periods of five (5) years (each a "Renewal Term "). The first Renewal Term will commence upon the expiration of the Base Term. Each successive Renewal Term will commence upon the expiration of the previously exercised Renewal Term. The first Renewal Option, upon the mutual agreement of the City Manager or his designee and the numeric majority of all Concessionaires not considered to be in default under the terms of the Amendment or the Original Agreement, may be exercised by written notice from Concessionaire to the City Manager or his designee not later than six (6) months prior to the expiration of the Base Term. Subsequent Renewal Options may be exercised by written notice from Concessionaire to the City Manager or his designee not later than six (6) months prior to the expiration of the previously exercised Renewal Term. Each Renewal Term will be upon the same terms and conditions as during the Base Term, except as otherwise provided. 3) Termination: Concessionaire may terminate the Original Agreement and this Amendment upon the expiration of the initial BaseTerm or any Renewal Term with no further obligations other than what is contained in the Original Agreement and this Amendment. 4) Upon the Effective Date, the Minimum Annual Guarantee ( "MAG ") payments will be recalculated to eighty -five percent(85 %) of ten percent(10 %) of the average of the most immediate prior twelve (12) monthsof Gross Revenues as such term is defined in the Original Agreement.At the commencement of each exercised Option period, the MAG for any exercised option periods shall also be recalculated at eighty -five percent (85 %) of ten percent (10 %) of the average of the most immediate prior twelve (12) months Gross Revenues at the commencement of each option period. In the event that extraordinaryconditions arise that will significantly impact the operations of Concessionaire,at the discretion of the Airport Director, the City agrees to consult withConcessionaireon the potential for adjustment of the MAG. Concessionaireagrees to comply with any request to provide adequate background information detailing the basis for the request and present the same to the Airport Director for review. Any adjustments will be at the sole discretion of the City. 5) The right granted in the Article VI of the Original Agreement with respect to Concessionaire's use or construction of underground or aboveground storage tanks is explicitly repealed. Concessionaire shall not have right to use or construct any existing underground storage tank or aboveground storage tankfollowing the effective date of this amendment. 6) Concessionaire must vacate the Service and Maintenance f=acility Premises allocated under the Original Agreement for service and maintenance facilities at the Airport within two (2) weeks of written notification from the Airport Director. City will remove all improvements from the existing facilities and if remediation is required, the cost of any such remediation shall be the responsibility of the Concessionaireor Page 14 of 16 QTA Amendment- Enterprise 11 -1 -12 entity that caused the requirement for remediation. City will consult with Concessionaire as to the scope of remediation services required; however, it is agreed that all remediation will be sufficient to meet or exceed and local, State, and/or Federal requirements. Concessionaire will be notified of the improvement removal process and will be given the opportunity to be present at the removal, testing and remediation upon the Premises. Upon completion of the remediation, any payment due shall be remitted to the City on the fifteenth (151h) of the month following invoice. If there is any property remaining after such date that must be disposed of by the demolition contractor at an additional expense, Concessionaire shall pay all costs for disposal if such property is not removed after ten (10) days' written notice by Airport Director to Concessionaire. 7) Article III Sections k, I, m and Exhibit C, of the Original Agreement are repealed upon effective date of this Amendment. Gasoline dispensed in accordance with the Terms of the Amendment at the Property shall be excluded from Article VI n of the Original Agreement. 8) All other terms and conditions of the previously executed Original Agreement between the parties which are not inconsistent herewith, shall apply to the use of the additional Property, and shall continue in full force and effect. R. Parking Space Sales Tax: Pursuant to Article III{j) of the Original Agreement, Concessionaire shall pay monthly rent to the City for allocated Parking Spaces. As of the Effective date of this Amendment, Concessionaire shall, in addition to paying rent on said allocated Parking Spaces, also pay the applicable sales tax per month for each parking spaceallotted to Concessionaire. IN WITNESS WHEREOF,the parties hereto have themselves or through their duly authorized officers executed this Amendment, to be effective upon execution by the City Manager. EXECUTED IN DUPLICATE ORIGINALS this day of 2012, by the authorized representative of the parties. ATTEST: Armando Chapa City Secretary City of Corpus Christi, Texas Ron Olson City Manager CONCESSIONAIRE: EAN Holdings, L.L.C., a Delaware company and wholly owned subsidiary of Enterprise Rent -A -Car Company, doing business as Enterprise Rent -A -Car Page 15 of 16 QTA Amendment- Enterprise 11 -1 -12 By: zl�t;'W Name: Bill Gold Title: Vice President / General Manager Date: 12/14/2012 STATE OF Texas COUNTY OF Bexar This instrument was acknowledged before me an bg- ceAbe,( i+ , 2012, by Bill Gold as Vice President / General Manager of EAN Holdings, LLC, a Delaware company, on behalf of said company. GRNQYMATT'MEIN9 COMMISSION EXPIRES =+j ` MSM 26, 2018 Page 16 of 16 QTA Amendment- Enterprise 11 -1 -12 FIRST AMENDMENT TO THE ON- AIRPORT RENTAL CAR CONCESSION AND LEASE AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI 'AND THE HERTZ CORPORATION WHEREAS, the City of Corpus Christi (the "City ") and The Hertz Corporation, a Delaware corporation, and its wholly owned subsidiary, Simply Wheelz LLC, a Delaware limited liability company, doing business as Advantage Rent -A -Car, a company operating under the laws of the State of Texas ( "Concessionaire ") previously executed an On- Airport Rental Car Concession and Lease Agreement dated November 1, 2009 ( "Original Agreement "); WHEREAS, The Hertz -Corporation sold Simply Wheelz LLC effective December 12, 2012; WHEREAS, the City and The Hertz Corporation have executed an amended Original Agreement to reflect the City and The Hertz Corporation as the only parties to that amended Original Agreement; WHEREAS, the parties to this Amendment are the City and The Hertz Corporation. Simply Wheelz LLC is not a party to this Amendment; WHEREAS, the City is in the process of constructing a new consolidated service facility and fueling facility, referred. to as the Quick Turn Around Facility ( "QTA ") to be used for fueling, cleaning, minor maintenance, staging, and storing of the rental car fleet; WHEREAS, the parties hereto desire to amend the Original Agreement to incorporate the use of the new QTA; NOW, THEREFORE, the parties agree as follows to amend the Original Agreement by adding new Article XXVIII ( "Amendment ") as follows: Article XXVIII Quick Turnaround Facility A. Definitions: The following terms, when used in this Article XXVI11 with the initial letter(s) capitalized, whether in the singular or the plural, shall have the following meaning. Capitalized terms not defined below shall have the meaning as set forth in the Original Agreement: "Airport Caorpus Christi International Airport. "Airport QTA__Fund ": rund designated by the Airport for CFGS collected by Concessionaire and paid to the Airport. "Amendment ": This First Amendment to the On- Airport Rental Car Concession and Lease Agreement that adds a new Article XXVIII. Page 1 of 16 QTA Amendment- Herz 1 -15 -13 "Base Rent" or" Rent ": An amount net of CFCs required to offset the QTA costs as identified in Sections C and D below. "CFC" or "CFCs ": The Customer Facility Charge, as determined from time to time by the City as related to the QTA and required to be collected by the Concessionaire and the Other Concessionaires for all transactions conducted at the Airport. "City ": The City of Corpus Christi, Texas. "Common Use Area(s) ": All facilities and land contained in the QTA that are available for use by Concessionaire and the Other Concessionaires for their common use as identified in Exhibit A and Exhibit C attached hereto. "Concessionaire ": Any individual or business entity that has an existing lease or concession agreement with the Airport for the purpose of renting vehicles to Customers who originate from Airport property, as stated in Corpus Christi City Ordinance No. 028575. "Date of Beneficial Occupancy": Following issuance of a Certificate of Occupancy, the date upon which the tenant substantially occupies the premises and conducts the primary activities associated with the operation of the concession. "Director" or "Airport Director": The Director of Aviation employed by the City or his or her designee. "Exclusive Use Areas) ": All facilities available and ]eased only to Concessionaire and no other for Concessionaire's exclusive use as identified in Exhibit B attached hereto. "Fuel System ": Shall include all the fuel storage tank(s), product piping, vent piping, fuel dispensers, nozzles, hoses, Stage 1 and II vapor recovery equipment, if applicable, under dispenser containment sump, turbine sump, fill port, spill buckets, and all leak detection devices. "Improvements": Buildings, landscaping and all other permanent improvements constructed or modified from time to time at the premises. "Fleayy Vehicle Maintenance ": Any type of body work or work performed on the vehicle drivetrain, and anything beyond permissible minor maintenance. "Land Rent ": Land Bent shall be that amount set by the City as rent for the land occupied under this Amendment which will be based on are appraisal by a Registered Third Marty Appraiser based on comparable facilities to be updated every five (5) years beginning in April, 2016. "Market Share or Market Share Perceni ?cLp` °; The amount, expressed as a percentage, equal to the quotient of (i) Concessionaire's on-- Airport Gross Revenues as defined in Article IV, Section (i) of the Original Agreement during the inimcdiately preceding twelve (12) months' period, divided by (ii) the sum of the on Airport Gross Revenues of Concessionaire and the Other Concessionaires during such twelve (12) months' period. "Operations Manual ": The manual that will be developed by the City and Concessionaires upon occupancy of the QTA that defines the daily operating procedures Page 2 of 16 QTA Amendment- Hertz 1 -15 -13 for conducting operations at the QTA, the use of Common Use facilities, security and safety procedures that will be enacted, and conflict resolution processes. The Operations Manual is subject to amendment and change. The most current master version will be kept in the office of the Director. "Ordinance ": Corpus Christi Ordinance No. 028575, Amending the Code of Ordinances, Chapter 9, "Aviation," by Creating New Section 9 -68, Entitled "Car Rental Customer Facility Charge," passed by the Corpus Christi City Council on April 20, 2010. "Original Agreement ": The previously executed On- Airport Rental Car Concession and Lease Agreement by and between the City and Concessionaire dated November 1, 2009. "Other Concessionaires ": All on- Airport rental car Concessionaires that are parties to an Original Agreement with the City, other than Concessionaire, and any Replacement Rental Car Company (as defined below). "QTA" or "Property": Means the City -owned Quick Turn Around Facility Area as depicted on the attached Exhibit A, Exhibit B, and Exhibit C attached hereto. "Replacement Rental Car Company_ "_ A rental car company who has executed an Original Agreement sublease or assignment agreement, approved in writing by the Director, to replace Concessionaire or an Other Concessionaire that defaulted under a lease with the City under terms similar to the Original Agreement: "Tenant Improvements ": Any improvements, furniture, trade fixtures or equipment construct or placed upon the Property by Concessionaire, Other Concessionaire, or Replacement Rental Car Company or the City. "Vehicle Stacking Spaces ": Those Common Use Areas as depicted on Exhibit A, also referred to herein as queuing lanes, for use in common by Concessionaire for parking its vehicles for use as rentals at the Airport in the QTA. The Spaces will be subject to adjustment as called for in this Amendment. "Vehicle Storage Spaces"., Those Common Use Areas as depicted on Exhibit A, for use in common by Concessionaire for storing its vehicles for use at the QTA. The spaces will be subject to adjustment as called for in this Amendment. 1 . Additional Promises The City does lease to Concessionaire, and Concessionaire does lease frorn the City, the additional property at the QTA as depicted on Exhibit A, Exhibit B, and Exhibit C, for Concessionaire's Exclusive Use and Common Use Areas. An Operations Manual will be on file in the Director's office and may be amended from time to time that will define tile, operating procedures that will be in place for- use of the Additional Premises. 1} The Common Use Areas shown on Exhibit A and Exhibit C as allocated according to Section E below; shall include the following: a. Lanes for queuing Concessionaire's rental car fleet at the QTA for: Fueling Page 3 of 16 QTA Amendment- Heliz 1 -15 -13 ii. Cleaning of vehicles iii. 12 fuel dispensing bays iv. 3 car wash bays b. Employee parking spaces o. In- fleeting and out - fleeting parking lanes d. Short term vehicle storage e. Fuel farm serving QTA 2) The Exclusive Use areas shown on Exhibit B include the following: a. Eight hundred fifty (850) square feet of office space for each Concessionaire's exclusive administrative office purposes; b. Seven hundred seventy five (775) square feet for maintenance bay for each Concessionaire's exclusive use. C. Base Rent: 1) Concessionaire shall have Exclusive Use and Common Use of the portions of the Property as depicted in attached Exhibits A, B, and C for Concessionaire's purposes and subject to reallocation as provided in Section E below. 2) Base Rent of the Exclusive Use and Common Use Areas as depicted in Exhibits A, B, and C attached shall be calculated on an annual basis. The Base Rent requirement shall be the sum of the following expenses, all of which are eligible: a. All costs of construction whether funded with cash or any borrowing instrument b. Debt service coverage requirement C. Land rent d. Major maintenance costs e. Repair and replacement account funding f. City provided insurance related to the QTA g. Utility costs associated with the QTA h. Direct labor costs for maintenance and operation of the QTA i. Operating and maintenance costs associated with operating the 0-1 -A j. Administrative costs associated with the management of the QTA k. All permits and licenses directly related to the QTA 1. Landscaping on land leased as part of the QTA rn. Bad debt from vendor or concessionaire related to the OTA n. Other reasonable costs incurred by the City relating to operation of the C) I-A o. A deficit of prior year(s)' CFC collections applied toward Lase I:ent CFCs collected shall first be applied to offset the expenses in the priority identified above. The expenses listed above authorized by the Ordinance, incorporated herein by reference, apply only to Concessionaire's operations at the QTA and not to Concessionaire's operations at any other location at or outside of the Airport. In Page 4 of 16 QTA Amendment- Hertz 1 -15 -13 the event the total CFCs collected are available to fully offset the expenses in any budget year, then no Base Rent will be due. If the total CFCs collected are not sufficient to offset the expenses as identified above, Base Rent will be established for any deficit in the total amount required. Base Rent will be charged based on the following formula: Fifty percent (50 %) will be divided equally among the Concessionaires based on their share of Exclusive Use Area. Payment for the portion of Base Rent charged based on equal allocation among Concessionaires is due and payable on the first day of the month for which rent is due. Following- the completion of the contract year and the final audit by the City, the City will recalculate the requirement for each Concessionaire against the actual Base Rent and CFCs received and if any shortfall payment is due the City, the City will invoice Concessionaire for any amounts due and payment shall be due and payable on the fifteenth (15t') of the month following invoicing. If the Base Rent payment, less CFCs, paid to the City during the year exceeds the amount due, the City will issue a credit to the Concessionaire for the amount due by the fifteenth (15th) of the month, subject to the process defined in Section 3 of Exhibit "D" to the Original Agreement. 2. Fifty percent (50 %) will be based on Market Share of Concessionaires. Payment for the portion of The Base Rent based on Market Share that will be effective for that contract year will be projected at the beginning of the contract year based on Market Share and payment will be due and payable for this portion of the Base Rent on the first day of the month for which rent is due. Following the completion of the contract year and the final audit by the City, the City will recalculate the Market Share Base Rent requirement based on actual payments and CFCs collected and remitted. If any payment is due the City, the City will invoice Concessionaire for any amounts due and payment shall be due and payable on the fifteenth (15th) of the month following invoice. If the estimated Base Rent, less CFCs, payment paid exceeds the amount due, the City will issue a credit to the Concessionaire for the amount due on the fifteenth (15th) of the month, subject to the process defined in Section 3 of Exhibit "D" to the Original Agreement. Notwithstanding the foregoing, to whatever extent possible, if the total CFCs collected are not sufficient to offset the Base Rent expenses set out above, such shortfall will be calculated at the end of the fiscal year and will be rolled over to the next fiscal year so that, to the extent possible and at the discretion of the Airport Director, Concessionaire will not be required to submit payment to the City for such shortfall but, instead, may overcome such shortfall with a future surplus of CI -Cs collected. Repairs required as a result of direct damage by Concessionaire employees, agents, designees, or contractors, normal wear and tear oxcepted, will be charged back to the responsible Concessionaire. A minimum of sixty (60) days prior to the commencement of occupancy and for all subsequent fiscal years, the City shall prepare an expense budget identifying the expenses in the same manner as identified above and a projection of the C1=C Page 5 of 16 QTA Amendment- Hertz 1 -15 -13 revenues anticipated to be collected and shall submit such expense budget to the Concessionaire for review and comment. Following consultation with Concessionaire, the City will establish the Base Rent that will be effective for that fiscal year and may adjust the amount of any CFC during the term of the Agreement to cover expenses and to avoid any contingent Base Rent. The Ordinance states in pertinent part: "Section 9- 68.03: Customer Facility Charge (B) The CFCs must be used to pay, or reimburse the Airport, for the costs associated with the design, acquisition, planning, development, construction, operation, maintenance, repair, equipment, and replacement of facilities and related improvements made use of in or connected to the business of renting cars at the Airport. Any or all of the CFCs collected may be pledged to the punctual payment of debt service on obligations (and any other pecuniary obligation) issued by or on behalf of the City for the benefit of the Airport for the cost of the car rental portion of facilities, parking lots, buildings, and other improvements, and to create and maintain reasonable operating and maintenance reserves as well as capital asset repair and replacement reserves. Eligible costs for the car rental facilities and related improvements include all costs, fees, and expenses associated with the design, acquisition, planning, development, construction, equipping, operation and maintenance, capital repair and replacement, and site improvement. Nothing herein shall be construed to make fees, costs, or expenses incurred in tenant improvements for space exclusively used by a Car Rental Company ineligible. "Equipping" for the purposes of this section is limited to providing necessary equipment within the common use areas and car maintenance bays of the car rental facilities. "Operation and maintenance" for the purposes of this section does not include fees, costs, or expenses incurred for or associated with consumables, such as paper supplies, oils and lubricants, or other products used in the business of the car rental facilities." "Section 9- 68.05: Collections. (A) All CFCs collected by all Car Rental Companies are and shall be funds held by the Car Rental Companies in trust for the City for the benefit of the Airport and recognizing the third party beneficiary status of any holders of any debt obligations issued by the City for the benefit of the Airport. Car Rental Companies and their agents hold only a possessory interest in the CFCs and no equitable interest. All Car Rental Companies shall segregate, separately account for, and disclose all CFCs as trust funds in their financial statements and shall maintain adequate records that account for all CFCs charged and collected. f=ailure by a Car Rental Company to segregate the CFCs shall not alter or eliminate their trust fund nature. The Airport shall have the right to audit the CFC records of a Car Rental Company upon reasonable notice. (B) All Car Dental Companies shall remit all CFC funds that were collected or should have been collected from its Airport car rental custor-ners on a monthly basis to the Airport. The CFCs shall be remitted on the 20t"day of the month following the month the CFCs were collected. Failure of a Car Rental Page 6of16 QTA AmendmeIlt- Heilz 1 -15 -13 Company to strictly comply with this subparagraph shall be considered a material breach of the Car Rental Company's authorization to do business at the Airport." "Section 9- 68.06. Annual Rate Adjustments. (A) Each April, the Airport Director shall recalculate the Customer Facility Charge to be effective June 5 of the same year to recover the amount equivalent to the remaining portion of the amount pledged by the City to the payment of debt service on obligations (or any pecuniary obligation related thereto) issued by or on behalf of the City for the benefit of the Airport.. The Airport Director shall consider any written comments of the Car Rental Companies regarding the adjustment, but the Airport Director, with the concurrence of the Director of Financial Services, has the sole and final determination of the amount. (B) Notwithstanding anything herein to the contrary, the Customer Facility Charge shall not be less than $3.50 per Customer per Transaction Day." Following the completion of the year -end audit, in the event that CFC collections exceed the projected Base Rent requirement plus any projected major maintenance or projected capital investment requirements, the City will reimburse Concessionaire from the Airport QTA Fund for any Base Rent, as detailed in Section C(2) herein, actually paid by Concessionaire in prior year(s), in the form of a check to be paid by the twentieth (20th) day of the following month, during the term of this Amendment, so that Concessionaire is made whole as to their costs that the Ordinance authorizes to be paid by CFCs. D. Allocation and Reallocation of numbered queuing lanes as shown on Exhibit A: 1) Concessionaire numbered queuing lanes will be allocated on an annual basis effective August 1 of each year of the Agreement according to the respective Market Share Percentages for the previous twelve (12) month period. Allocation of rows will be made in full row allocation only. A single row will not be allocated to more than one Concessionaire. in order to achieve an additional row upon annual re- allocation, a Concessionaire must have a market share percentage that commands 60% or more of a full row. 2) -rhe Airport Director, in consultation with Concessionaire, shall annually determine the allocation of each Concessionaire's numbered queuing lanes , based on the previous twelve (12) month period market share and in keeping with full row allocation as detailed in E(1) above. The Airport Director's determination shall be final and binding, provided, however, that if the Airport Director determines that a Concessionaire's allocation is to increase, that Concessionaire may decline the reallocation and maintain their existing allocation. If a Concessionaire declines an increased allocation, it will be at the discretion of the Director to reallocate to the other Concessionaires based on the other Concessionaires' requests, but under no circumstance will there be less than a 100% allocation of all available numbered queuing lanes. Concessionaire will be provided an updated Exhibit A each year of this Amendment that will show the annual allocation by Concessionaire. Page 7 of 16 QTA Amendment- Hertz 1 -15 -13 E. Exhibits: If the Property is reallocated by the City, the Exhibits to this Agreement that are affected by such reallocation shall be superseded by replacement Exhibits provided by the City. F. Required and Permitted Uses: 1) The Property shall be used by Concessionaire only for the fueling, vehicle stacking, vehicle storing, washing, cleaning, detailing, and minor maintenance of Concessionaire's vehicle inventory used in connection with its Original Agreement at the Airport, and uses incidental and reasonably related thereto. Notwithstanding the foregoing requirement, Concessionaire may use the Property for the fueling and washing of Concessionaire's vehicle inventory not rented at the Airport facility only to the extent that such fueling and/or washing does not cause undue inconvenience or maintenance costs to the other Concessionaires or the Airport. Upon complaint by the Airport or a Concessionaire of such undue inconvenience or maintenance costs, the Airport Director has sole discretion to allow or disallow fueling and /or washing of Concessionaire's vehicle inventory not rented at the Airport facility. Examples of permissible minor maintenance include services such as oil changes, tire replacement, brake maintenance, windshield repair, and vehicle fluid replacement. Any other maintenance beyond this general description performed at the QTA is not permitted except as expressly authorized in this Agreement or in writing by the Airport Director. The Airport Director will have sole discretion to authorize maintenance other than what is identified in this Agreement and will take into consideration the impact of any such requests on the Concessionaire considering environmental liability, public perception, and overall airport operations. If the Airport Director authorizes maintenance other than what is identified in this Agreement for one Concessionaire, the Airport Director will authorize such maintenance in writing to all Concessionaires. 2) The Property shall not be used for any other purpose, and specifically shall not be used for Heavy Vehicle Maintenance, storage of any vehicles used in conjunction with any off - Airport rental car concession, storage of out -of- service and damaged vehicles for longer than twenty one (21) calendar days, and sales of new or used vehicles, or auctions or liquidation sales. The Airport Director, in his/her sole discretion, may allow occasional extended storage period for damaged vehicles, when the Airport Director agrees such extension is necessary due to extenuating circumstances identified by Concessionaire. 3) If any governmental license or permit, other than a certificate of occupancy, shall be required for the proper and lawful conduct of Concessionaire's business on the Airport, Concessionaire shall procure and maintain such license or permit, at its sole cost and expense, and shall submit the same, upon request, for inspection by the City. Concessionaire shall at all times comply with terms and conditions of each such license or permit. However, City shall be responsible to comply with all regulations, laws, and ordinances and shall obtain all necessary licenses and permits required to operate the QTA, including the fueling facility and wash bays, and City shall be responsible for compliance with all applicable regulations regarding reporting requirements for the QTA, including the fueling facility. Wage 8 of 16 QTA Amendment- Hertz 1 -15 -13 4) Compliance with Laws: Concessionaire shall not use or permit the Property, or any part thereof, to be used in whole or in part for any purpose other than as set forth above, nor for any use, operation or activity in violation of any present or future laws, ordinances, general rules or regulations at any time applicable thereto of any public or governmental authority. In the event that compliance reporting is required. Concessionaire agrees to make all reasonable efforts to cooperate with the City in providing any required information. G. Fueling Facilities and Charges: 1) City agrees to purchase and have delivered to the Property the required fuel to be utilized by the Concessionaire for the purpose of conducting the concession operation. Concessionaire agrees to purchase and use only the fuel from the fueling station at the Property for all vehicles used as rental vehicles at the Airport. Failure to purchase fuel from the QTA shall be considered a material default under the terms of this Agreement; unless such fuel in unavailable from the City or if the City provides prior written consent. 2) The cost per gallon (U.S. Gallon) charged to Concessionaire will be based on the City's contract cost per gallon (including all applicable taxes, surcharges, delivery charges, fees and all discounts and volume rebates obtained by City) plus five cents ($0.05) per gallon. 3) City shall make all good faith efforts to obtain an acceptable grade and quality of fuel at the lowest cost available and have an adequate fuel supply available at all times unless the availability of fuel is disrupted due to reasons beyond the reasonable control of the City. 4) City will provide Concessionaire fuel keys in sufficient quantity reasonable to allow Concessionaire to fuel its vehicles without disruption as determined by the Airport Director in consultation with the Concessionaire, which activate both the fuel pumps as well as the entrance and exit gates. City's fuel system will track fuel dispensed with a computerized fuel management system. Any shortages or variations of inventory not directly attributable to the actions of the City will be charged to Concessionaire based on Market Share if the shortage cannot be reconciled. 5) City will invoice Concessionaire monthly for the fuel dispensed at the QTA by Concessionaire into its vehicle inventory, subject to Section G (1) herein. The invoice shall list the total amount of the gallons of fuel pumped by the Concessionaire for the preceding month, applicable taxes and destination charges, the price per gallon, and the $0.05 dispensing fee per gallon due to the City. 6) Concessionaire shall pay the invoice on or before the fifteenth (15th) day of the month following, the month for which fuel was provided, pursuant to Article IV(e) of the Original Agreement Failure to pay invoices in a timely manner may result in City denying access to the fuel system (deactivating Cor1cessionaire's fuel keys), in addition to other remedies provided for in the Original Agreement, until all amounts owed to City are paid in full, though not without notice and opportunity to cure pursuant to Article XIII g. of the Original Agreement. In the event that the Concessionaire desires to pay the invoice by credit card, any costs associated with processing the credit card payment will be added to the invoice and shall be remitted Page 9 of 16 QTA Amendment- Hertz 1 -15 -13 to the City in addition to the payment due. Failure to make payment following notice as called for in the Original Agreement shall constitute a default under the terms of the Original Agreement and the City will have the rights associated with Article XIII of the Original Agreement. 7) A security deposit in the form of a bond, certified check, cashier's check, or other form acceptable to the City equal to two (2) months' average fuel pumped for the previous six (6) months or if six (6) months of data is not available, the two (2) months of the average of the available data will be required prior to the activation of Concessionaire's access to the fuel system. If Concessionaire does not provide a reasonable estimate for the purpose of establishing the security deposit requirement, the City will set the security deposit amount required at its sole discretion. City shall draw against such security deposit when Concessionaire does not remedy payment after notice and opportunity to cure set forth above in subsection (6). Concessionaire will be required to restore the security deposit balance to the required amount within five (5) working days of written notice of draw down. 8) City agrees to provide regular grade unleaded fuel to the Property on a timely basis. 9) Concessionaire agrees to use the fueling system and all associated apparatus in accordance with all safety instructions and shall immediately notify Airport personnel in writing, as outlined in the Operations Manual, of any safety or hazardous conditions that may exist. City or its contractor shall provide safety training regarding the fueling facility to Concessionaire prior to date of occupancy of the QTA by Concessionaire. Concessionaire is responsible for and agrees to hold City harmless for Concessionaire's misuse or negligent use or operation of the fueling system and any damages or injuries incurred as a result of such misuse or negligent use. H. Maintenance, Utilities, Security, and Custodial Services for QTA Property 1) Maintenance of Property - Except where maintenance required exceeds that associated with normal wear and tear and is a result of the negligence of Concessionaire, its employees, agents, contractors and invitees, City agrees that during the term of this Agreement it shall keep, maintain and repair the Property, including Concessionaire's Tenant Improvements in its Exclusive Use Area and the cost for performing such services shall be included in the Base Rent as outlined in this Amendment. Concessionaire hereby expressly agrees at all times during the term of this Agreement to make all reasonable efforts to cooperate with City in keeping the Property in a clean, maintained, and in a sanitary condition. City agrees to perform all required maintenance of City's Fuel System. City shall also ensure that monthly leak detection is fully operational and in compliance with all local, state, and federal laws, regulations, and ordinances governing the operation of such Fuel System. Concessionaire shall have no responsibility to remove or permanently close the fuel storage tanks installed by the City. Concessionaire shall have no responsibility for City's maintenance, City's leak detection, or City's operation of the City's Fuel System. Concessionaire shall not be liable to the City or any regulatory agency or agencies having jurisdiction over the operation of City's Fuel System for the violation of any local, state, and federal laws governing the operation of such Page 10 of 16 QTA Amendment- Hertz 1 -15 -13 Fuel System notwithstanding Concessionaire's responsibility as stated in Section H (11) herein. Concessionaire shall not be responsible for the release and clean -up of any Hazardous Substance as defined herein from the Fuel System, except when caused by acts or omissions of Concessionaire. Concessionaire shall not be deemed to be the operator of City's Fuel System, as the term "operator' is defined in any local, state, or federal laws governing the operation of the Fuel System. 2) Utilities - City shall provide standard heat, electricity, and air conditioning in the Exclusive and Common Use Areas on the QTA Property. Payment for these services shall be paid by Concessionaire as part of the Base Rent. In cases where the City furnishes and delivers natural gas, electricity or waterlsewer to the Property, the City does not guarantee the continuity or sufficiency of such supply, but the City will make reasonable efforts within the City's control to ensure such delivery. The City will not be liable for interruptions or shortages or insufficiency of supply or any loss or damage of any kind or character occasioned thereby if the same is caused by accident, act of God, fire, strikes, riots, war, inability to secure a sufficient supply from the utility company furnishing the City, or any other cause. Whenever the City shall find it necessary for the purpose of making repairs or improvements to any utility supply system it shall maintain, following consultation with Concessionaire, it shall have the right to suspend temporarily the delivery of natural gas, electricity or water. However, City agrees to make reasonable efforts to cause minimal disruption when possible. 3) Information Technology and Telephone Services: Concessionaire shall be responsible, at its sole cost, for providing all telephone and data services for its use and for obtaining any necessary permits. Systems installed by one Concessionaire shall not adversely affect other Concessionaires, tenants, or City. 4) Security of Property - City shall coordinate and enforce secured access to the Property for Concessionaire. Concessionaire shall abide by all security directives of the City. J. Customer Facility Charge ( "CFC "): Concessionaire is required to collect and remit to the City within twenty (20) calendar days following the end of the month in which the fee is collected, the total CFCs on all vehicle rental transactions originating at the Airport. City hereby agrees that during the term of this Agreement, CFC revenues collected by Concessionaire and remitted to City shall be used to offset Concessionaire's equal allocation of Base Rent and Market Share Base bent as called for in this Amendment. If for any reason the CFC's collected, or any portion thereof, are insufficient to cover anticipated expenses identified in this Amendment, then any deficiency in the arnounts otherwise owed by Concessionaire to City under this Amendment shall be paid to City by Concessionaire as part of Base Kent as calculated in accordance with this Amendment during the applicable contract year. The City may adjust the amount of the CFC during the Term of this Amendment following consultation with the Concessionaire. K. Delinquency Charge: Concessionaire agrees that in the event payments to the City for any fees and charges are not received by the City on or before the respective due dates, as set forth in this Page 11 of 16 QTA Amendment- Heitz 1 -15 -13 Amendment, Concessionaire shall pay to the City a delinquency charge of one and one half percent (1 -1/2 %) of the amount due to City, for each month, calculated daily, that the amount due remains unpaid. However, the City agrees to provide written notice of such delinquency prior to assessing such charge for a first occurrence. Payments due the City shall be received by the City only on normal business days, Monday through Friday, and shall not be considered late if the date due falls on a weekend or legal City holiday provided payment is received on the next business day. A yearly schedule of City holidays shall be provided to Concessionaire upon request. Payment by Concessionaire and acceptance by City of a delinquent charge shall not be construed as a waiver or forfeiture of any other rights or remedies of the City contained elsewhere in this Agreement, or as provided by law. For the purposes of this section, the date payments are received by City shall be the U. S. Postal Service cancellation date on the envelope transmitting the payment, or the date such payment is received by an authorized representative of the City if the payment is hand delivered. In the event of a dispute as to the amount to be paid, the City may accept without prejudice the sum tendered and, if a deficiency is determined, the foregoing delinquency charge shall apply only to such deficiency. The City may waive, for good cause, in its sole discretion, any delinquency charge upon written application of Concessionaire. L. Insurance: With regards to the QTA and any other property described in . this Amendment, Concessionaire agrees to obtain and maintain all insurances as described in Exhibit "E" to the Original Agreement and shall name the City as additional insured as its interests appear hereunder for liabilities arising out of the conduct of Concessionaire, its officers, employees or agents for the Commercial General Liability and Business Auto Liability Insurance, with a waiver of subrogation in favor of the City for worker's compensation. Concessionaire shall be responsible to obtain all property insurance to insure Concessionaire's own property. However, the "Environments[ Impairment Liability" description in Exhibit E is modified to read as follows: Environmental Impairment Liability to include $1,000,000 per claim Broad Form Pollution Liability Coverage Third Party Clean Up Concessionaire's Environmental Impairment policy coverage applies only to claims, damages, suits, judgments that are due to the negligence or wrongful acts of concessionaire, its officers, employees or agents. Concessionaire's Environmental Impairment policy coverage does not apply to any claims, damages, suits, judgments, clean up that are due to the acts of the City or any third -parly contracted by the City to operate the QTA. City shall obtain the following insurance coverage to cover the City's exposures for the QTA: Properly insuranco for City owned facilities; and Storage Tank Liability to cover only City's liability exposures. Page 12 of 16 QTA Amendment- Hertz 1 -15 -13 M. Condition of the Property: Except as may be expressly provided elsewhere in this Agreement, the taking of possession of the Property by Concessionaire shall in itself constitute acknowledgment that the City shall not be obligated to make any Tenant improvements or modifications thereto. Concessionaire shall not be liable for any pre - existing conditions, latent defects, or damage not caused by Concessionaire. Concessionaire shall have no liability arising out of or in any way relating to the existence of any hazardous materials placed on, in or under the Property by any person or entity other than Concessionaire or any person or entity acting for, by or through Concessionaire or with Concessionaire's permission or acquiescence N. Reserved Easements: The City reserves to itself and the right to grant to others in the future nonexclusive utility easements (including easements for construction, maintenance, repair, replacement and reconstruction) over, under, though, across, or on the Property in locations that will not unreasonably interfere with Concessionaire's use thereof. The City retains all mineral rights on the Airport property. O. Obligations of the City: The City agrees that use of the Property shall be limited to rental car companies with an On- Airport Rental Car Concession and Lease Agreement executed with the City. City reserves the right to retain third parties to operate, repair and maintain the Property, including without limitation, to operate and maintain the fueling system. P. Default: Either party may terminate the use of the QTA for other party's noncompliance of any terms of the Original Agreement or for noncompliance with terms of this Amendment, upon failure to cure after issuance of a thirty (30) days written notice. If this Amendment is terminated for Concessionaire's noncompliance with the terms of this Amendment or for Concessionaire's noncompliance with the terms of the Original Agreement and this Amendment, then the Concessionaire shall be liable to City for payment of remaining equal rent payments for the remainder of the Original Agreement term. City shall invoice and Concessionaire shall rernit payment within thirty days for such remaining rental payments. In the event City subleases the Exclusive Use Areas to another concessionaire as a result of any Default termination, City will apply any rent received against the rent obligations of Concessionaire, but in no circumstances, will the amount applied exceed the total rent obligation. (). kfiective gate and 1errn: 1) .I -he Effective Date of this Amendment is _ _,. 20._., subject to final City Council approval, Notwithstanding that Concessionaire may occupy the Property on the date the Certificate of Occupancy is issued by the City Building Official for the Property or upon the Date of Beneficial Occrpancy, whichever occurs first. As part of the transition plan, (described in Article IV (q) of the Original Agreement), from the existing Service and Maintenance Facilities ("Facilities") to the Q-1 A, if Concessionaire occupies the QTA before the Effective Page 13 of 16 QTA Amendment- Hertz 1- t 5 -13 Date, Concessionaire shall continue to pay rents for the existing Facilities under the Original Agreement through the close of business the day before the Effective date. Beginning on the Effective Date, rent and fees shall be paid pursuant to the QTA -based annual budget. As of the close of business the day before the Effective Date, rents for the existing Facilities shall cease. However, notwithstanding the foregoing, Concessionaire shall continue to pay full rent for the existing Facilities until said existing Facilities are completely vacated by Concessionaire. Upon the Effective Date of this Amendment, the Term of the Original Agreement shall be extended for a new base period such that the Term of the Original Agreement and this Amendment are identical and such Term shall be extended for a new base period of five (5) years commencing on the Effective Date and ending on the last day of the fifth (5`") full fiscal year thereafter ('Base Term "). Upon the Effective Date of this Amendment the use of "Term" and "Base Term" shall apply to the Original Agreement and this Amendment. 2) Renewal Option: Upon the expiration of the Base Term, and upon the mutual agreement of the City Manager or his designee and Concessionaires not considered to be in default under the terms of the Amendment or the Original Agreement, Concessionaire will have two (2) separate, successive options (each a "Renewal Option ") to extend the term for additional periods of five (5) years (each a "Renewal Term "). The first Renewal Term will commence upon the expiration of the Base Term. Each successive Renewal Term will commence upon the expiration of the previously exercised Renewal Term. The first Renewal Option, upon the mutual agreement of the City Manager or his designee and the numeric majority of all Concessionaires not considered to be in default under the terms of the Amendment or the Original Agreement, may be exercised by written notice from Concessionaire to the City Manager or his designee not later than six (6) months prior to the expiration of the Base Term. Subsequent Renewal Options may be exercised by written notice from Concessionaire to the City Manager or his designee not later than six (6) months prior to the expiration of the previously exercised Renewal Term. Each Renewal Term will be upon the same terms and conditions as during the Base Term, except as otherwise provided. 3) Termination: Concessionaire may terminate the Original Agreement and this Amendment upon the expiration of the initial Base Term or any Renewal Term with no further obligations other than what is contained in the Original Agreement and this Amendment. 4) Upon the Effective Date, the Minimum Annual Guarantee ( "MAG ") payments will be recalculated to eighty -five percent(85 %) of ten percent(10 %) of the average of the most immediate prior twelve (12) months of Gross Revenues as such term is defined in the Original Agreement. At the commencement of each exercised Option period, the MAG for any exercised option periods shall also be recalculated at eighty -five percent (85 %) of ten percent (10 %) of the average of the most immediate prior twelve (12) months Gross Revenues at the corn rnencemetit of each option period. In the event that extraordinary conditions arise that will significantly impact the operations of Concessionaire, at the discretion of the Airport Director, the City agrees to consult with Concessionaire on the potential for adjustment of the MAG. Concessionaire agrees to comply with any request to provide adequate background information detailing the basis for the request and present the same to Page 14 of 16 QTA Amendment- Hertz 1 -15 -13 the Airport Director for review. Any adjustments will be at the sole discretion of the City. 6) The right granted in the Article VI of the Original Agreement with respect to Concessionaire's use or construction of underground or aboveground storage tanks is explicitly repealed. Concessionaire shall not have right to use or construct any existing underground storage tank or aboveground storage tank following the effective date of this amendment. 6) Concessionaire must vacate the Service and Maintenance Facility Premises allocated under the Original Agreement for service and maintenance facilities at the Airport within two (2) weeks of written notification from the Airport Director. City will remove all improvements from the existing facilities and if remediation is required, the cost of any such remediation shall be the responsibility of the Concessionaire or entity that caused the requirement for remediation. City will consult with Concessionaire as to the scope of remediation services required; however, it is agreed that all remediation will be sufficient to meet or exceed and local, State, andfor Federal requirements. Concessionaire will be notified of the improvement removal process and will be given the opportunity to be present at the removal, testing and remediation upon the Premises. Upon completion of the remediation, any payment due shall be remitted to the City on the fifteenth (15th) of the month following invoice. If there is any property remaining after such date that must be disposed of by the demolition contractor at an additional expense, Concessionaire shall pay all costs for disposal if such property is not removed after ten (10) days' written notice by Airport Director to Concessionaire. 7) Article III Sections k, I, m and Exhibit C, of the Original Agreement are repealed upon effective date of this Amendment. Gasoline dispensed in accordance with the Terms of the Amendment at the Property shall be excluded from Article VI n of the Original Agreement. 8) All other terms and conditions of the previously executed Original Agreement between the parties which are not inconsistent herewith, shall apply to the use of the additional Property, and shall continue in full force and effect. [° . Parking Space Sales Tax: Pursuant to Article 1110) of the Original Agreement, Concessionaire shall pay monthly rent to the City for allocated Parking Spaces. As of the Effective date of this Amendment, Concessionaire shall, in addition to paying rent on said allocated barking Spaces, also pay the applicable sales tax per month for each parking space allotted to Concessionaire. Page 15 of 16 QTA Amendment- Hertz 1 -15 -13 IN WITNESS WHEREOF, the parties hereto have themselves or through their duly authorized officers executed this Amendment, to be effective upon execution by the City Manager, EXECUTED IN DUPLICATE ORIGINALS this day of , 2033, by the authorized representative of the parties. ATTEST: Armando Chapa City Secretary City of Corpus Christi, Texas Ron Olson City Manager CONCESSIONAIRE: The Hertz Corporation, a Delaware corporation TO By; Name: Simon Ellis Title: Staff Vice President, Real E tate and Concessions Date: f� STATE OF NEW JERSEY COUNTY OF BERGEN This instrument was acknowledged before me on January 18, 2013, by Simon Ellis, as Staff Vice President, Real Estate and Concessions of The Hertz Corporation, a Delaware corporation, on behalf of said corporation. Notary Public LINDA DRAVIN NOTARY PUBLIC OF NEW JERSEY W (;6 MISSION EXPIRES JAN. 24, 2014 Page 16 of 16 QTA Amendment- Hertz 1 -15 -13 0 AGENDA MEMORANDUM First Reading for the City Council Meeting of February 12, 2013 852 Second Reading for the City Council Meeting of February 26, 2013 DATE: January 21, 2013 TO: Ronald L. Olson, City Manager FROM: Michael Morris, Director MichaelMo@cctexas.com 361- 826 -3494 Beach Fest 2013 event lease CAPTION: Ordinance authorizing the City Manager or designee to execute an Agreement with Elizabeth Guarneri for use of McGee Beach for music event to be held on March 16, 2013 and March 17, 2013. PURPOSE: Beach Fest 2013 is requesting to charge admission for the event. BACKGROUND AND FINDINGS: Beach Fest is a safe and fun alternative for Spring Breakers, and a way for non - profit organizations, especially those that serve the homeless population to raise funds for their organizations. The event organizers work with the Homeless Issues Partnership and area shelters by doing needs assessments and other studies to find out what the South Texas community needs. Council is requested to approve the date, location, admission fees and consideration for the 2013 Beach Fest. ALTERNATIVES: Do not approve event agreement OTHER CONSIDERATIONS: Not Applicable CONFORMITY TO CITY POLICY: City Council action is required for lease agreements and fees charged in conjunction with public events. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Legal, Finance FINANCIAL IMPACT: ❑ Operating X 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 1$400.00 1 1$400.00 BALANCE 1 J$400.00 1 J$400.0 0 Fund(s): General Fund Comments: None RECOMMENDATION: Staff recommends approval LIST OF SUPPORTING DOCUMENTS: Ordinance Lease with Exhibit Ordinance authorizing the City Manager or designee to execute an Agreement with Elizabeth Guarneri for use of McGee Beach for music event to be held on March 16, 2013 and March 17, 2013. Be it ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. That the City Manager or designee is authorized to execute an agreement with Elizabeth Guarneri for exclusive use of approximately 175 feet by 200 feet size area of McGee Beach for music event to be held on March 16, 2013 and March 17, 2013. A copy of the agreement is on file with the City Secretary. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of 1 , by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott That the foregoing ordinance was read for the second time and passed finally on this the day of 1 , by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb PASSED AND APPROVED, this the ATTEST: Armando Chapa City Secretary Chad Magill Colleen McIntyre Lillian Riojas Mark Scott day of , Nelda Martinez Mayor State of Texas § County of Nueces § Page 1 of 15 2413 USE AGREEMENT Know All By These Presents: This short term Use Agreement ( "Agreement ") between the City of Corpus Christi, a Texas home -rule municipal corporation ( "City "), acting through its duly designated City Manager, and Elizabeth Guarneri, is in consideration of the covenants contained herein. 1. Definitions. a. City - means the City of Corpus Christi, a Texas home -rule municipality. b. City Attorney - means the City's Attorney or designee. c. City Traffic Engineer - means the City's Director of Engineering Services or designee. d. City Manager - means the City's City Manager or designee. e. Promoter - means Elizabeth Guarneri. f. Event - means the music event to be held on March 16, 2013 and March 17, 2013. The specific types of activities at the Event include the following: live music and other activities as agreed to by the Parks Director. g. Parks Director - means the City's Director of Parks and Recreation or designee. h. Police Chief - means the City's Police Chief or designee. i. Premises - means the Event sites of approximately 200 feet by 175 feet size area of McGee Beach, more fully described on the attached and incorporated Exhibit A. j. Risk Manager - means the City's Director of Risk Management or designee. k. City Secretary — means the City Secretary or designee. 2. Term. This Agreement takes effect upon execution by the City Manager. Promoter will be entitled to exclusive use of the Premises described below, for the periods identified on Exhibit B. The City Manager may authorize amendment to Exhibit B. Page 2 of 15 3. Premises. City grants to Promoter the privilege of using the Premises, to conduct its paid admission Event on the dates March 16, 2013 and March 17, 2013, for the limited times listed on Exhibit B. 4. Event Layout Diagram. Promoter must provide the Parks Director a diagram explaining the final Event layout for all related activities at least two weeks prior to the Event. Layout of the Event is subject to the approval of the Parks Director. 5. Special Event Fee. Promoter must pay City a one -time Special Event Permit fee of $400.00 under City ordinance. 6. Use of other City property. Promoter may arrange for use of other City property such as Cole Park amphitheater through separate permit and additional permit fee. 7. Payment of City Costs. In consideration for the use of City property, Promoter will pay the City within 30 days after receipt of City invoice the actual cost incurred for services rendered, including any other City services provided by departments other than Parks & Recreation and Police, less any amount(s) that Promoter has disputed. An invoiced amount will be considered to be in dispute upon receipt, by the Parks Director, of a written notice from Promoter The written notice must detail the basis for the disputed claim and must be received by Parks Director within twenty (20) calendar days of Promoter's receipt of City invoice. Resolution and payment of any disputed amount(s) will be governed by Section 25. The Parks Director will invoice Promoter for the City's Direct Costs within thirty (30) calendar days after the Event. The invoice will provide an itemized breakdown of the City charges for services rendered (such as set up and take down, Event clean -up, street sweeping, and repair categories. Upon receipt of written request of Promoter, the Parks Director will furnish reasonable supporting documentation of the charges within ten (10) calendar days. If there is a hurricane or other weather activity, or event outside the control of the parties that eliminates the Event or that reduces anticipated attendance at the Event, the City Manager is delegated the authority to adjust the billing of City's Direct Costs. A. Direct Costs. City's Direct Costs in assisting with the Event may include, but are not limited to: 1. Damages to City property as a result of the Event, which will be billed at the cost of repair. This includes but is not limited to, damages caused by negligent acts or omissions of Promoter, its employees, volunteers, vendors, contractors, or subcontractors. This includes but is not limited to, damages to the utility infrastructure such as water lines caused by acts of Promoter, its employees, volunteers, vendors, contractors, or subcontractors. If the sod at the Premises is damaged, Promoter agrees to either replace the sod with similar product, or to reimburse the City's costs for sod replacement. Parks Director will provide Promoter a punchlist of damage to City property within seven (7) days after Promoter has vacdated the City property. Promoter must repair damages within Page 3 of 15 ten (10) days after receipt of the punchlist. If Promoter fails to restore all items on the punchlist, Parks Director may do so and invoice Promoter for direct costs. Promoter shall be responsible to replace any turf damage due to the use for these Events. Promoter must fill and compact all holes in grassy areas made during the Event. Parks Director must approve all fill material. 2. Costs of labor contracted for clean up, or additional clean up required by the Directors of relevant City departments, at applicable City rates for the year billed. (Promoter will be given the opportunity to hire and work its own clean up crew during and after the Event.) 3. Costs of Police Officers provided for security, crowd control, traffic control, and off -site traffic control, at applicable City rates for the Police Officers assigned. For the Event, Promoter shall be responsible for 100% of all non - police City Direct Costs, 100% of all City health permit/vendor and related fees, and 100% of police overtime. 4. Costs of any other services requested by Promoter and provided by City are Promoter's responsibility. B. Notice of Costs. For planning purposes only, attached as Exhibit C are estimates of the rates and costs for City Services that may be provided for the Event. Promoter shall be liable for all actual cost incurred by City related to the Event even if the actual cost exceeds the cost shown in Exhibit C. C. Late Fee. Promoter failure to pay the undisputed charges on City's invoice within 30 days after submittal to Promoter shall result in a late payment fee being assessed against Promoter . The late payment fee shall be calculated to be 5% of the amount due, as shown on City's invoice, less any disputed amounts, and said fee will be added to the net amount payable to the City. 8. Deposit. Promoter must pay a deposit of $2,000 at least one month in advance of the Event, made payable to the City. The deposit will be used to reimburse City for any costs incurred for trash pick up or removal of any structures or repairs to City property. If no costs are incurred and Direct Costs are paid, the deposit will be returned to Promoter within 30 days after the Event. 9. Notice. Notice may be given by fax, hand delivery, or certified mail, postage prepaid, and is deemed received on the day faxed or hand delivered or on the third day after deposit if sent certified mail. Notice must be sent as follows: If to City: Director of Parks and Recreation City of Corpus Christi P.O. Box 9277 Corpus Christi, TX 78469 -9277 FAX (361) 880 -3864 If to Promoter: Elizabeth Guarneri 4801 Jean Street Corpus Christi 78414 Page 4 of 15 10. . Temporary Street Closures. The street closure process will govern any necessary street closures. All street closures on a temporary basis are subject to the requirements of City Ordinances, Sections 49 -15 to 49 -18, as may be amended, and require the City Council to confirm the closures. The decision to confirm the closure of the streets is within the sole discretion of the City Council acting upon the application at the time the application is submitted. 11. Parking. Promoter will provide parking and signage for people with disabilities in close proximity to the entrances of the Event and its related activities defined on the Premises maps. 12. Barricades, Traffic Signs. Promoter must comply with traffic control plan approved by City Traffic Engineer. Street access to Premises may not be blocked or partially blocked without detour signage and prior alternate street access approved by the City Traffic Engineer. 13. Signage and Advertising. On all advertising for the Event, Lessee shall recognize City's contributions to the Event. Signage must comply with applicable City codes. 14. Rest Rooms, Drinking Water and First Aid. Promoter must provide adequate portable rest rooms, including restrooms for people with special needs, and drinking water for the public as determined by the Parks Director. A first aid station must also be provided throughout the duration of the Event and its related activities. 15. Insurance and Volunteer Waivers. Promoter's Agent must furnish to the Risk Manager proof of insurance listed on the attached Exhibit. Promoter must furnish the Certificates of Insurance with applicable policy endorsements in at least the above minimum amounts to the City's Risk Manager two weeks prior to the Event. Promoter must require all volunteers to sign an accident waiver form that Promoter must keep on file. The City Attorney will approve the form. In the Event of accidents of any kind, Promoter must furnish the Risk Manager with copies of all reports of the accidents at the same time that the reports are forwarded to any other interested parties. In addition, Promoter must provide copies of all insurance policies to the City Attorney upon City Manager's written request. Said insurance must not be canceled, non - renewed or materially changed without 30 days prior written notice to the Parks Director. 16. Indemnity. Promoter shall indemnify and hold City, its officers, agents and employees ( "Indemnitees') harmless of, from, and against all claims, demands, actions, damages, losses, costs, liabilities, expenses, and judgments recovered from or asserted against Indemnitees on account of injury or damage to person or property to the extent any damage or injury may be incident to, arise out of, or be Page 5 of 15 caused, either proximately or remotely, wholly or in part, by an act or omission, negligence, or misconduct on the part of the Indemnitees or on the part of Promoter or any of its agents, servants, employees, contractors, vendors, patrons, guests, licensees, or invitees ( "Indemnitors ") entering upon the Premises pursuant to this Promoter Agreement, to use the Premises and those portions of Shoreline and streets that are closed to set-up and take -down, hold, attend, or participate in the Promoter's events at McGee Beach and any other City locations, and associated activities, with the expressed or implied invitation or permission of Promoter, or when any injury or damage is the result, proximate or remote, of the violation by Indemnitees or Indemnitors of any law, ordinance, or governmental order of any kind, or when any injury or damage may in any other way arise from or out of the improvements located on the Premises or out of the use or occupancy of the improvement to the Premises or the Premises itself by Indemnitees or Indemnitors, or when the injury or damage arise out of, or be caused, either proximately or remotely, wholly or in part, by an act or omission, negligence, or misconduct on the part of the Indemnitors in administering parade vendor permits. These terms of indemnification are effective whether the injury or damage may result from the sole negligence, contributory negligence, or concurrent negligence of Indemnitees, and in all cases where Indemnitees' actions are directly related to the Event, but not if the damage or injury results from gross negligence or willful misconduct of Indemnitees. Promoter covenants and agrees that if City is made a party to any litigation against Promoter or in any litigation commenced by any party, other than Promoter relating to this Promoter Agreement, Promoter shall defend City upon receipt of reasonable notice regarding commencement of the litigation. 17. Safety Hazards. Promoter , upon written notice of identified safety hazards by the Police Chief, Fire Chief, Parks Director or Risk Manager, must correct the safety hazard, within six hours or other time frame included in the written notice of safety hazards. 18. Pavement, Curbs, Sidewalks, Seawall. Any work which involves holes or other changes in the pavement, curbs, sidewalks, or seawall, or Premises requires the prior written approval by City Director of Engineering Services, provided however, that no approval will be given if the work will require subsequent repairs by the City. Page 6 of 15 19. Permits. A. Promoter must require all vendors to obtain and comply with appropriate permits, including permits from the Alcoholic Beverage Commission for the sale of alcohol, from the City for consumption and sale of alcoholic beverages on park land, and must comply with all requirements of the City - County Health Department for the sale of foods and the protection of the public welfare. Promoter shall be responsible for, payment of all City health permit /vendor and related fees. For example, the temporary food service establishment permit fees established in City Code of Ordinances Section 19 -33. Any vendor that sells alcoholic beverages must furnish proof of liquor Liability Insurance in the same amounts set out herein. Said Certificate of Insurance must be furnished to the Risk Manager at least two weeks prior to the starting date of the Event annually. Other permits Promoter must obtain a Temporary Promotional Event Permit from Building Inspection.. Promoter shall promptly notify the Parks Director of any special conditions imposed by any permitting agency. B. Music Licenses. Promoter is solely responsible for obtaining licenses and permission from copyright owner(s) prior to the performance of music or other copyrighted material at the Event. 20. Clean Up. Promoter must require all food and beverage vendors to clean a designated zone adjacent to their respective booths at regularly scheduled intervals. Promoter may designate the zone, but it will not be less than 10 feet by 20 feet in the immediate area around each food and beverage booth. The clean up will be hourly and immediately after closing the Event each day. All trash cleaned up must be properly deposited in a trash bag provided by Promoter and taken to a location designated by Promoter. Promoter may hire and work its own clean up crew during and after the Event. If the Parks Director determines that additional clean up is necessary, Parks Director will give Promoter's Agent 2 hours notice to increase services; and if it is still unsatisfactory, Parks Director may authorize use of City workers. Promoter must install screens, approved by City Director of Storm Water Operations or designee, across all storm water inlets along Shoreline and within any closed streets within the Premises. Drainage must not be blocked. Promoter must remove the screens within the non - exclusive use period after the close of the Event. However, Promoter must remove screens (along with any trash that has accumulated over the screens) immediately if heavy rain is imminent, or upon the direction of the City Director of Storm Water Operations or her designee. 21. Construction. The construction work for displays and stages must be conducted in accordance with City building codes and restrictions. Any other construction requires prior approval by Parks Director in writing. 22. Temporary Buildings. Promoter must receive prior written approval from the Parks Director to place any temporary buildings on the grounds of the Premises. Otherwise, all temporary buildings moved onto Premises for the Event must be placed and remain on trailers to promote expeditious removal. All these buildings must be removed within the non - exclusive use time period. Page 7 of 15 23. Electrical & Water Services. City does not provide electrical service on the Premises. A Temporary Promotional Event Permit from the City Building Inspection Department is required in order to install electrical service for the Event. Further, a Certificate of Occupancy, which involves inspections, must be completed by the proper inspector, to have all temporary services, such as, food, electrical, plumbing, tents, and structures, inspected. It is the responsibility of Promoter to call each inspector for an appointment to inspect and get approval for each temporary service before the Event begins. Parks Director will provide access to water from park water facilities. 24. Permissible Vendor Location Markings. No paint or semi - permanent markings will be permitted which in any way obliterate or deface any pavement markings or signs or Premises heretofore existing for the guidance of motor vehicles or pedestrians. Chalk markings may be used to pre -mark locations on the sidewalk or street. (Painted markings of any type will only be permitted in grassy areas). 25. Dispute Resolution. City and Promoter agree that any disputes which may arise between them concerning this Agreement, such as determining the amount of damage to City property occurring as a result of the Event, or regarding an invoiced amount, will be submitted for determination and resolution, first to the Parks Director, with a right to appeal to the City Manager. The decision of the City Manager will be final, unless that decision is appealed to the City Council by giving written notice of appeal to the City Secretary within ten (10) days after the written decision of the City Manager has been sent to Promoter In the Event of appeal, the decision of the City Council will be final. Upon a resolution of the dispute, either by agreement of the parties or as the result of an appeal, the disputed amount will be considered due and payable to the City within ten (10) calendar days of the resolution. This Agreement in no way waives Promoter rights to seek other legal remedies during the appeals process. 26. Emergency Vehicle Lanes. Promoter must at all times maintain emergency vehicle lanes upon the Premises as may be designated by City Fire Chief. These lanes must be kept clear of all obstructions. 27. Assignment. Promoter may not assign or transfer this Agreement nor sublease the whole or any part of the Premises or make any alteration therein without the prior written consent of the City Manager. 28. Breach, Termination. Any failure on the part of Promoter to perform any of the covenants contained in this Agreement, or any breach of any covenant or condition by Promoter entitles City to terminate this Agreement without notice or demand of any kind, not withstanding any license issued by City and no forbearance by City of any prior breach by Promoter is a waiver by or estoppel against City. In case of termination City is entitled to retain any sums of money theretofore paid by Promoter and the sums inure to the benefit of City as a set -off against any debt or liability of Promoter to City otherwise accrued by breach hereof. Page 8 of 15 29. Right of Promoter to Use Public Streets. Promoter acknowledges that the control and use of public streets is declared to be inalienable by the City and except for the use privilege granted herein, this Agreement does not confer any right, title, or interest in the public property described herein. The privilege to use the City property granted herein is subject to the approval of the City Council as required by ordinance and the compliance by Promoter with the terms and conditions contained within this Agreement. 30. Not Partnership or Joint Venture. This Agreement may not be construed or deemed by the parties hereto as a partnership, joint venture, or other relationship that requires the City to cosponsor or incur any liability, expense, or responsibility for the conduct of the Event or associated activities. Payments received from Promoter by the City are compensation for provision of City services as described herein and for the right of Promoter to use public property for the limited purpose described herein. 31. City Services Subject to Appropriation. Promoter recognizes that the services provided by the City pursuant to this Agreement are subject to the City's annual budget approval and appropriation. The continuation of any contract after the close of any fiscal year of the City, is subject to appropriations and budget approval. 32. Compliance with Laws. Promoter must comply with all applicable federal, state, and local laws and regulations, including without limitation compliance with Americans with Disabilities Act requirements, and compliance with City noise ordinance, all at Promoter's sole expense and cost. 33. Non - discrimination. Promoter warrants that they are and will continue to be an Equal Opportunity Employer and hereby covenants that no employee, participant, invitee, or spectator will be discriminated against because of race, creed, sex, handicap, color, or national origin. 34. Fence. Promoter may provide a temporary four -foot (4') construction fencing, with gates for access, upon prior approval of the Parks Director. The fence will help improve security, crowd control, litter control, and keep bicycles, skateboards, animals, and personal coolers out of the Event area. Exhibit A may be revised to enlarge or decrease the fenced area in accordance with Promoter's needs upon Parks Director's concurrence. 35. Admission Fee. Promoter may charge an admission fee, not to exceed $15 per day of Event. 36. Public Safety. Promoter must provide uniformed Security Officers during the Event, and after the Event closes each night until it opens the next day. Promoter will assign the Security Officers duties. Security Officer means sworn peace officers directly paid by Promoter, provided, however, the Police Chief may determine that a security guard service will provide adequate security for the Event, or portions of the Event. If the Police Chief allows a security guard service to provide security, the term "security officer" will include a licensed security guard as well as a sworn peace officer. If the Page 9 of 15 City Police Chief determines it is necessary, the Police Chief will assign Police Officers to provide off -site crowd and traffic control for the Event as needed and include costs of police officers in the Direct Costs per Section 7 above. The Police Officers will be assigned duty stations by the Police Chief, or designee. Notwithstanding anything herein, the City Manager or Police Chief reserve the right to cancel the Event at no cost or penalty to the City, without prior notice, if the City Manager or Police Chief determines in his sole discretion that cancellation is necessary to protect the public safety. 37. Entirety Clause. This Agreement and the incorporated and attached Exhibits constitute the entire Agreement between the City and Promoter for the use granted. All other Agreements, promises, and representations, unless contained in the Agreement, are expressly revoked, as the parties intend to provide for a complete understanding within the provisions of this Agreement and its Exhibits, of the terms, conditions, promises, and covenants relating to Promoter's operations and the Premises to be used in the operations. The unenforceability, invalidity, or illegality of any provision of the Agreement does not render the other provisions unenforceable, invalid, or illegal. Executed in Duplicate Originals on __ , 2013. ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary Elizabeth Guarneri � By: !�J Date: AO i3 STATE OF TEXAS § COUNTY OF NUECES § Ronald L. Olson City Manager This instrument was acknowledged before me on G2,e, 20A, by Elizabeth Guarneri. JJ:ANNR HOLLAND $' 'S Notary �'L�t)IIC, State of Texas ary Public State of Texasti= , 2013 I. '���` ti, 1Y'�,rY ��,'�+••!'`� * -,� (.4' a l _ � � •`yam ry - .. { ,h ,��,��y •cif '�'�m j?,,. 'r[� "'� .` ,fiG'a. ;aP.Le:, =n!�?�,3tvar+"..r 1 5 iX � 1 1 C `1 • { i. .:+e'er a� - � E'1 '" ` �+�,'?F 'P or tD f t 54 s r� v z .. Al ^� 4 t f Mill- tNI •a�x "� a i . ,l. s r V � 3 � �y tin @� �� �j( �f�"Lr ■� F f + y y= �61f�lEC' -lei E f )�i�R." 1 a � YP y All.w ��]� wwW AMP Page 11 of 15 EXHIBIT B 2013 Agreement Event Locations, Dates & Summary Description of Premises to be used for the Event Approximate 175 feet by 200 feet area of McGee Beach as depicted on Exhibit A, on March 16 2013 and March 17, 2013, for the following events. Description of Event on Saturday March 16, 2013: Set up at 8:00 am. From Noon to 10:00 p.m: Paid admission entrance for live music event Description of Event on Sunday March 17 2012: Set up at 8:00 am. From Noon to 10:00 p.m.: Paid admission entrance to live music event 2012 EXHIBIT C — ESTIMATED EXPENSES* Park & Recreation Special event Permit fee: $400.00 TOTAL ESTIMATE $400.00 Page 12 of 1.5 *Promoter may or may not use all services estimated on this sheet. There may be additional services requested by Promoter which may require a revised estimate. These estimates do not include costs of emergency calls. Actual costs for emergency calls will be billed directly to and paid by Promoter. EXHIBIT INSURANCE REQUIREMENTS Page 13 of 15 A. Promoter may not use McGee Beach under this Permit until all insurance required herein has been obtained and approved by the City. Promoter must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. 1 10 Promoter must furnish to the Risk Manager or designee, two (2) copies of Certificates of Insurance, showing the following minimum coverage by insurance company(s) acceptable to the Risk Manager or designee. The City must be named as an additional insured for all liability policies, and a blanket waiver of subrogation in favor of the City is required on all applicable policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 -Day written notice of cancellation, Bodily Injury and Property Damage non - renewal, material change or termination is required on all certificates Per occurrence aggregate COMMERCIAL GENERAL LIABILITY $1,000,000 Per Occurrence 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 — Advertising Injury LIQUOR LIABILITY 1. Vendors providing and 1 or selling $1,000,000 Per Occurrence alcohol AUTOMOBILE LIABILITY -- Owned, Non- $500,000 COMBINED SINGLE LIMIT owned or rented or leased vehicles Page 14 of 15 1. Contractors & Subcontractors delivering tents, stages, bleachers, temporary structures and large items 2. Promoter's workers and volunteers AT A MINIMUM, STATUTORY LIMITS of $25,0001$50,000 for BODILY INJURY & $25,000 for PROPERTY DAMAGE Required if Promoter employs any person other than himself /herself: WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION WORKERS' COMPENSATION ACT AND PARAGRAPH II OF THIS EXHIBIT $500,000 EMPLOYERS' LIABILITY ACCIDENT POLICY FOR VOLUNTEERS $5,000 MEDICAL PAYMENTS per PERSON $10,000 DEATH or DISMEMBERMENT per PERSON C. In the event of accidents of any kind, Promoter must furnish the Risk Manager with copies of all reports of any accidents within 10 days of the accident. II. ADDITIONAL REQUIREMENTS A. Promoter must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written on a policy and with endorsements approved by the Texas Department of Insurance. The workers' compensation coverage provided must be in amounts sufficient to ensure that all workers' compensation obligations incurred by the Promoter will be promptly met. B. Certificate of Insurance: The City of Corpus Christi must be named as an additional insured on the liability coverage, and a blanket waiver of subrogation in favor of the City is required on all applicable policies. Page 15 of 15 • 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 ". In the alternative, a copy of a policy endorsement with the required cancellation language is required. • The name of the event, including exact dates including move -in and move out dates shall be shown under the Description of Operations/ Locations / Vehicles/ Special Items. • At a minimum, a 30 -day written notice to the Risk Manager and Parks and Recreation Director of cancellation, material change, non - renewal or termination and a 10 day written notice of cancellation for non- payment of premium is required. 2013 ins. req. Parks & Recreation Dept. Spring Break Music Festival — McGee Beach 01/11/2013 ds Risk Management Page 10 of 15 EXHIBIT A —Site Plan Beach Fest, March 16, 2013 0 AGENDA MEMORANDUM First Reading for the City Council Meeting of February 12, 2013 852 Second Reading for the City Council Meeting of February 26, 2013 DATE: January 21, 2013 TO: Ronald L. Olson, City Manager FROM: Michael Morris, Director MichaelMo@cctexas.com 361- 826 -3494 Texas Parks and Wildlife Grant amendment increasing award for Billings and Clems boat ramps and parking lot project CAPTION: Ordinance authorizing the City Manager or designee to execute all documents necessary to accept and appropriate funding in the amount of $25,000 from the Saltwater- fisheries Enhancement Association and $674,710 in additional federal funding for the Clem's and Billing's Boat Ramp renovations in the No. 1067 Park and Recreation Grants Fund; authorizing the City Manager or designee to execute Amendment to Project Agreement with Texas Parks and Wildlife Department for Clem's and Billing's Boat Ramp renovations to increase federal grant funds $674,710 and include 25 year lease with Texas General Land Office as local match; and amending the FY 12 -13 Capital Budget adopted by Ordinance No. 029565 by increasing proposed revenues by $699,710. PURPOSE- Accept an additional $674,710 in grant funding from Texas Parks and Wildlife Department and $25,000 as part of the cash match from the Saltwater- fisheries Enhancement Association for the Billings and Clems Boat Ramp and Parking Lot project. BACKGROUND AND FINDINGS: The renovation of two boat ramps at the Billings Bait Stand and Clem's Marina located near John F. Kennedy Causeway on the north side of State Highway 358 on Packery Channel was completed in 2011. The project was funded through the original Texas Parks and Wildlife Department's Safe Boating Access Program in the amount of $925,290, along with $167,000 cash match provided by the Coastal Bend Bays and Estuaries Program, Saltwater- Fisheries Enhancement Association (SEA), the City of Corpus Christi, and architectural services from Robert Floyd. The City of Corpus Christi entered into a surface lease agreement with the Texas General Land Office in October 2011 which provided for the construction, operation, and maintenance of public boat ramps and public parking. The lease outlines the responsibilities of the City which are to keep area clear of abandoned boats, vehicles and other debris, maintain improvements, and regular garbage collection. The amount represented by this proposed grant amendment will allow for completion of parking lot improvements adjacent to the two renovated boat ramps. ALTERNATIVES: Do not accept this grant funding for the proposed parking lot improvements. OTHER CONSIDERATIONS: n/a CONFORMITY TO CITY POLICY: City Council must authorize the City Manager or his designee to execute the necessary documents to amend the agreement and appropriate the additional grant award. EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Legal, Accounting 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 925,290 925,290 Encumbered / Expended Amount 925,290 925,290 This item 699,710 699,710 BALANCE 699,710 699, 710 Fund(s): Grant Fund 1067 Comments: The first grant award totaled $925,290. RECOMMENDATION: Staff recommends approval of grant amendment. LIST OF SUPPORTING DOCUMENTS: Ordinance Amendment to Project Agreement Exhibit: Agreement for Cash Match from Saltwater- fisheries Enhancement Association Ordinance authorizing the City Manager or designee to execute all documents necessary to accept and appropriate funding in the amount of $25,000 from the Saltwater- fisheries Enhancement Association and $674,710 in additional federal funding for the Clem's and Billing's Boat Ramp renovations in the No. 1067 Park and Recreation Grants Fund; authorizing the City Manager or designee to execute Amendment to Project Agreement with Texas Parks and Wildlife Department for Clem's and Billing's Boat Ramp renovations to increase federal grant funds $674,710 and include 25 year lease with Texas General Land Office as local match; and amending the FY 12 -13 Capital Budget adopted by Ordinance No. 029565 by increasing proposed revenues by $699,710. Whereas, on November 16, 2010, by Resolution 028863, City Council authorized acceptance of grant in amount of $925,290 from the Texas Parks and Wildlife Department for the Clem's and Billing's Boat Ramp renovations Whereas, on October 18, 2011, by Resolution 029251, City Council authorized the City Manager to execute a Surface lease with Texas General Land Office for an approximate 2.2 acre tract in the right of way of Park Road 22; Now, therefore, 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 all documents necessary to accept and appropriate funding in the amount of $25,000 from the Saltwater- fisheries Enhancement Association and $674,710 in additional federal funding in the No. 1067 Parks and Recreation Grants Fund for the Clem's and Billing's Boat Ramp renovations. Section 2. That the City Manager or his designee is authorized to execute the Amendment to Project Agreement No. F -226 -B with the Texas Parks and Wildlife Department for the Clem's and Billing's Boat Ramp renovations to increase federal grant funds $674,710 and include 25 year land lease with Texas General Land Office as local match. A copy of the Amendment will be filed in the Office of the City Secretary. Section 3. That the FY 12 -13 Capital Budget adopted by Ordinance No. 029565 is amended by increasing proposed revenues by $699,710. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb That the foregoing ordinance was read for the second time and passed finally on this the day of , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb PASSED AND APPROVED, this the day of , ATTEST: Armando Chapa City Secretary Nelda Martinez Mayor TEXAS PARKS AND WILDLIFE DEPARTMENT TEXAS RECREATION AND PARKS ACCOUNT AGREEMENT AMENDMENT TO PROJECT AGREEMENT Project Amendment Number: ,.__-_.....__ F-,226 -8 Project Name: ___City of Corpus Christi — Clem's and Billing "s Boat Ramp enovations THIS AMENDMENT to Project Agreement Number 1= -222 wH is hereby made and agreed upon by the State of Texas, acting thrOUgh the Texas Parks and Wildlife Department and by the undersigned sLrhdivislan purWant to the Texas Recreation and Parks Account Program, The pollticai SUbdIvlslon (sponsor) and the State of Texas, In mutual consideration of the promises made herein and In the fund agreement of which this is an amendment, do promise as follows: To increase federal grant funds $674,710 for a total of $1,600,000, To increase the total project cost to $2,223,430, To increase the sponsor's match from $303,430 to $623,430 of which $400,000 is land lease value and $223,430 is cash. To acknowledge that the value of the 25 year land lease from the Texas General Land Office to the City of Corpus Christi is valued at $440,000 and will be utilized as local match of federal funding for the project. In all other respects the fund agreement of which this Is an amendment, and the plans and specifications relevant thereto, shall remaln In full force and effect, In witness whereof the parties hereto have exocutod this Amendment as of the date entered I)olow, TEXAS PAR4 AN[) i11LOl;II"- ,DEPARTMENT � CITY OF CORPUS CHRISTI POLITICAL SUBDIVISION (SPONSOR) by b Tim l°jogsett, Director, R_ecreation,Grants Branch_ (Name and Title) (oate of Approval) UJ EPLS Data (Rev, 04100) (Name and Title) c. CORPUS CHRISTI AGREEMENT RECReA IO gECRpAT1ON This Agreement between the City of Corpus Christi ( "City") and Saltwater- fisheries Enhancement Association ( "Agency") is effective upon execution by City Manager and will terminate on December 31, 2011. 1. Statement of work to be performed: At State Boat Ramp SBF 69 -16- 167 -178, known as Clem's and Billing's Boat Ramp, located on Packery Channel under the JFK Causeway in Nueces County, the City of Corpus Christi shall complete engineered design plans and specifications, required permits and clearances to renovate the boat ramps, bulkhead and associated parking area. Agency will share in the cost of the renovation of the boat ramps, bulkhead and associated parking area. 2. Agency shall make payment of reimbursable costs of $25,000 to -City in- accordance with its later dated September 28, 2009; Agency shall make payments for the purposes described in paragraph 1 above. Payment shall be billed upon completion of work, and paid by Agency within 30 days of date of invoice. 3. The undersigned parties do hereby certify and agree that (1) the work specified above is necessary and essential for'activities that are properly within the statutory functions and programs of the affected parties, (2) the proposed arrangements serve the interest of efficient and economical administration of the parties, and (3) the individuals whose approval signatures are affixed to this agreement are duly authorized by the governing body of each part to enter into and execute this agreement. Saltwater- fisheries Enhancement Association By: Stan Willson, President Date: , Z 4? - an l - ,1:0 <CJ City of Corpus Christi By/e: 'An scobar, City Manager Da / /f /f/, �sirll M;M* as to iorm:. -�— u a Agulla Assistant City Attorney For City Attorney sk I4ff 7 5 .... .. .... .... .. . . . . IQP' 1. ..... .. .... ........... ........ ...... ...... .......... ... .... ... Of r. 1 11 0 AGENDA MEMORANDUM First Reading for the City Council Meeting of February 12, 2013 852 Second Reading for the City Council Meeting of February 26, 2013 DATE: January 21, 2013 TO: Ronald L. Olson, City Manager FROM: Michael Morris, Director MichaelMo@cctexas.com 361- 826 -3494 Grant funding for wetland restoration and construction at Hans Suter Wildlife Refuge CAPTION: Ordinance authorizing the City Manager or designee to execute all documents necessary to accept and appropriate a grant in the amount of $100,000 from the Texas General Land Office for Hans and Pat Suter Wildlife Refuge improvements in the No. 1067 Park and Recreation Grants Fund with City matching funds of $66,667.00 in the No. 4720 Community Enrichment Fund for total project amount of $166,667.00. PURPOSE: Grant funding will provide construction of a wildlife viewing platform and additional wetland restoration at the Hans and Pat Suter Wildlife Refuge. BACKGROUND AND FINDINGS: In addition to its importance to area wildlife, the refuge is one of the city's premier nature tourism sites, drawing visitors from across the country. In 2010, the Hans and Pat Suter Wildlife Refuge was recognized by area businesses, conservation organizations, and the Convention and Visitor's Bureau when the groups joined together in an effort to improve the refuge. Those improvements included installation of shade structure, educational signage, irrigation at a butterfly garden, security enhancements, and limited invasive species removal. ALTERNATIVES: Do not accept this grant funding. OTHER CONSIDERATIONS: n/a CONFORMITY TO CITY POLICY: City Council must authorize the City Manager or his designee to execute the necessary documents to appropriate the grant award. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Legal, Accounting 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 n/a 0 0 Encumbered / Expended Amount n/a 0 0 This item n/a $166,667 1 $1667667 BALANCE n/a 1 $1667667 $166 667 FUND(S): Grant Fund 1067 Comments: The cash match for this grant will come from the Community Enrichment Fund 4720. RECOMMENDATION: Staff recommends approval of grant. LIST OF SUPPORTING DOCUMENTS: Ordinance Grant Agreement Ordinance authorizing the City Manager or designee to execute all documents necessary to accept and appropriate a grant in the amount of $100,000 from the Texas General Land Office for Hans and Pat Suter Wildlife Refuge improvements in the No. 1067 Park and Recreation Grants Fund with City matching funds of $66,667.00 in the No. 4720 Community Enrichment Fund for total project amount of $166,667.00. 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 all documents necessary to accept and appropriate a grant in the amount of $100,000 from the Texas General Land Office for Hans and Pat Suter Wildlife Refuge improvements in the No. 1067 Parks and Recreation Grants Fund with City matching funds of $66,667.00 in the No. 4720 Community Enrichment Fund for total project amount of $166,667.00. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb That the foregoing ordinance was read for the second time and passed finally on this the day of , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb PASSED AND APPROVED, this the ATTEST: Armando Chapa City Secretary day of , Nelda Martinez Mayor SUBRECIPIENT GRANT .AGREEMENT GLO CONTRACT No. 13.046- 000 -6913 COASTAL MANAGEMENT PROGRAM — CYCLE 17 This subrecipient grant agreement ( "Contract") is entered into by and between the GENERAL LAND OFFICE ('GLO"), a State agency, and the CITY OF CORPUS CHRISTI ( "Subrecipient ") to provide financial assistance with funds received under the Texas Coastal Management Program ( "CMP ") Cycle 17 grant funds, to be made available to the State of Texas by the U.S. Department of Commerce, National Oceanic and Atmospheric Administration ( "NOAA "), pursuant to the Federal Coastal Zone Management Act of 1972, 16 United States Code Section 1451, et seq., NOAA Award No. NA12NOS4190021 ( "Grant "). The Grant funds are limited to use for implementation of a coastal zone management project under the CMP, administered by the GLO (as Coastal Zone Management Awards, CFDA #11.419) and as approved by the Texas Land Commissioner. ARTICLE 1. GENERAL PROVISIONS 1.01 PURPOSE The purpose of this Contract is to set forth the terms and conditions of a Subgrant fi-om the GLO to the Subrecipient under CMP Cycle 17. 1.02 CONTRACT DOCUMENTS The GLO and Subrecipient hereby agree that this document and the following Attachments, which are incorporated herein in their entirety for all purposes, shall govern this Contract: ATTACHMENT A: Project Work Plan and Budget ATTACHMENT A -1: Final, Actual Budget (To be Submitted by Subrecipient) ATTACHMENT B: CMP Supplemental Terms and Conditions ATTACHMENT C: Federal Assurances — Construction (SF -424D) / Non - Construction (SF- 424B); Certification Regarding Lobbying Lower Tier Covered Transactions (Form CD -512); and Disclosure of Lobbying Activities Form (SF -LLL) ATTACHMENT D: General Affirmations ATTACHMENT E: Sample Additional Required Forms: Progress Report Form; Invoice for Federal Expenditures; Monthly Grant Project GO Contract No. 13 -046- 000 -6913 Page 1 of 17 Equipment Sheet; Monthly Grant Project Timesheet; Budget Amendment Form; Audit Reporting Form; and Historically Underutilized Businesses (HUB) Expense Report Form Local Match Expenditure Forms: Monthly Grant Project Equipment Sheet; Monthly Grant Project Timesheet; and Volunteer Timesheet ATTACHMENT F: Grant Closeout Form 1.03 DEFINITIONS "Administrative and Audit Regulations" means the regulations included in Title 43, Code of Federal Regulations, Part 12, Chapter 321 of the Texas Government Code; Subchapter F of Chapter 2155 of the Texas Government Code, and any other federal or state regulation applicable to the administration and audit of this Contract and the activities authorized by it. ` Budget" means the budget for the Project funded by the Contract, a copy of which is included in Attachment A. "CMP Rules" means the rules set forth in Chapters 501 through 506 of Title 31 of the Texas Administrative Code for the Texas Coastal Management Program, authorized by statute in Chapter 33, Subchapter C of the Texas Natural Resources Code. "Compliant Format" means the format for electronically stored information that complies with the standards set forth in Section 2.4 of Attachment B. "Deliverable(s)" means the work product(s) required to be submitted to the GLO as set forth in the Work Plan. "Equipment" means tangible personal property have a useful life of more than one (1) year and an acquisition cost of FIVE THOUSAND DOLLARS ($5,000.00) or more per unit. "Event of Default" means the occurrence of any of the events set forth in Section 8.01 herein. "Federal Assurances and Certifications" means federal (i) Standard Form 424B (Rev. 7- 97); or (ii) Standard Form 424D (Rev. 7 -97), as applicable to the Project; and Form CDT 512 (Rev. 12 -04), in Attachment C, which must be executed by Subrecipient. "Final Report" means a written report that must be received by the GLO upon completion of the Work Plan, as set forth in Section 4.02 herein. "Fiscal Year" means the period beginning September 1 and ending August 31 each year, which is the annual accounting period for the State of Texas. "GAAP" means "generally accepted accounting principles" as applicable. "GASB" means accounting principals as defined by the Governmental Accounting Standards Board. GLO Contract No. 13-046-000-6913 Page 2 of 17 "General Affirmations" means the affirmations in Attachment D, attached hereto and incorporated herein for all purposes, to which Subrecipient certifies by the signing of this Contract. "Grant Administrator" means the GLO staff member responsible for administering the Grant, Melissa Porter, GLO Coastal Resources Division (512.475.1393 or Melissa, bortergglo.texas.gov) or her designee. "HUB" means Historically Underutilized Business as defined by Chapter 2161 of the Texas Government Code. "Mentor Pro je e" means the Comptroller of Public Accounts' leadership program found at: http: / /www.window. state. tx. us / procurement /prog/hub /mentorprotege /. "Plans" mean the engineering specifications, construction plans, and/or architectural plans for the construction of improvements approved by the GLO for the Project, if any. "Pro ress Reports" means written progress reports that must be received by the GLO monthly or quarterly, as set forth in Section 4.02 herein. "Project" means the activities involved in "Public Access and Environmental Enhancements at the Hans and Pat Suter Wildlife Refuge Phase II," described in Section 2.01, and detailed in the Work Plan in Attachment A of this Contract. "Prom t P4y. Act" means Chapter 2251, Subtitle F of Title 19 of the Texas Government Code. "Public Information Act" means Chapter 552 of the Texas Government Code. "State of Texas Textravel" means Texas Administrative Code, Title 34, Part 1, Chapter 5, Subchapter C, Section 5.22, relative to travel reimbursements under this Contract, if arty. "Subgranf' means the pass - through grant ftmds received through the Grant and approved for use by Subrecipient in accordance with the terms of this Contract. "Subrecipient" means the City of Corpus Christi, selected to accomplish the Project under this Contract. "Subcontractor" means an individual or business that signs a contract to perform part or all of the obligations of Subrecipient under this Contract. "Work Plan" means the statement of work and special conditions, if any, contained in Attachment A. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK GLO Contract No. 13-046-000-6913 Page 3 of 17 1.04 INTERRPRETIVE PROVIS10NS (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms; (b) The words "hereof.," "herein," .. hereunder," and similar words refer to this Contract as a whole and not to any particular provision, section, attachr-wilt, work order, or schedule of this Contract unless otherwise specified; (c) The term "including" is not limiting, and means "including without limitation" and, unless otherwise expressly provided in this Contract, (i) references to contracts (including this Contract) and other contractual instruments shall be deemed to include all subsequent amendn -fonts and other .modifications thereto, but only to the extent that such an -Iendments and other inodit'ications are not prohibited by the terms of this Contract, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting the statute or regulation; (d) The captions and headings of this Contract are for convenience of reference only and shall not affect the interpretation of this Contract; (e) All attachments within this Contract, including those incorporated by reference, and any atnendnnents, are considered part of the terms of this Contract; (f) This Contract may use several diflcrent limitations, regulations, or ,policies to regulate the sane or similar matters. All such limitations, regulations, and policies are cumulative and each shall be performed in accordance with its terins; (g) Unless otherwise expressly provided, reference to any action of the GLO or by the G1.,O by way of consent, approval, or waiver shall be deemed modified by the phrase "in its /their sole discretion." Notwithstanding the preceding sentence, any approval, consent, or waiver required by, or requested of, the GLO shall not be unreasonably withheld or delayed; (ti) All due dates and/or deadlines referenced in this Contract that occur on a weekend or holiday shall be considered as if occurring on the next business day; (i) All time periods in this Contract shall commence on the day after the date on which the applicable event occurred, report is submitted, or request is received; and (J) Time is of the essence in this Contract. WMAIND.ER OIL PAGE INTENTIONALLY .Li 'r BLANK GLO Contract No. 13- 446 -000 -6913 Page 4 of 17 ARTICLE 2. CMP SUTIGRANT AWARD AND SCOPE OF PROJECT 2.01. CMPGRANTAWARD Subrecipient submitted an application for Subgrant funds under CMP Cycle 17. The "Texas Land Commissioner has approved the Subgrant Award to Recipient based on Subrecipient's application. Subject to the terms and conditions of this Contract, the G1,0 agrees to make a Subgrant to Subrecipient in an amount not to exceed ONE HUNDREi) THOUSAND DOLLARS ($100,000.00), payable in installments as reimbursement of allowable expenses incurred by Subrecipient, to be used in strict conformance with the Budget in Attachment A hereto; and Subrecipient shall contribute SIXTY -Six TILOUSAND SIX HUNDRED S1xTY- SEVEN DOLLARS ($66,667.00) in matching funds or in-hind services, for a total amount not to exceed ONE HUNDRED SIXTY -SIX TIIOUSANU Six HONDRED SIXTV-SEVEN DOLLARS ($166,667.00) for the duration of the Contract. It is expressly understood and agreed by Subrecipient that the GLO shall have the right to recapture, and to be reimbursed for, any payments matte by the G1.,0 under this Contract that Subrecipient has not used in strict accordance with the terms and conditions of this Contract and the Grant Award Agreement. Tills RECAPTURE PROVISION SHALI, SURVIVE 'GILL+, T "I RMINATI.ON OR EXPIRATION OF THIS CONTRACT. Tilt +, GLO IS NOT LIABLE TO SUBIiE0111E.NT FOR ANY COSTS INCIIRR1i;D 11Y SUBRE,CIPIENT BEI+OIRE, TIIE EFFECTIVE DATE Ole T'IIIS CONTRACT OR AleTER TERMINATION OF THIS CONTRA(T. 2.02 PROJECT AND WORK PLAN The Project shall be perl:ornied in accordance with the Work Plan and Budget in Attachment A; the Supplemental Terms and Conditions in Attachment 13; the Federal Assurances and Certifications in Attachment C; and the General Affirinations in Attachment 1). '1T11e Work flan or the scope of the Project may be amended by the Grant Administrator upon submission of a written request and detailed justification by Subrecipient. Some modifications may require the approval of NOAA, which may cause significant delays. ANY COSTS INCURRED WHILE: WAITING FOR APPROVAL Ole '111E REQUESI'ED C:IIANGI�,S ARE THE RESPONSIBILITY OF SUBRECIPIENT. THE GRANT ADMINISTRATOR WILL INFORM SUBRECIPIENT IF'l'l °11? REQUEST IS APPROVED. 2.0:3 REAL ESTATE IMPROVi MENTS AND LAND ACQUISI "PION REQUIREMENTS If applicable, Subrecipient should ensure compliance with Supplement Article 4, Special Conditions Applicable to (teal Estate Improvements and Land Acquisitions, in Attachment 13, GLO Contract No. 13- 046 -000 -6913 Page 5 of 17 ARTICLE 3. TERM 3.01. DURATION AND EXTENSION oI+ TERM (a) This Contract shall be effective October 1, 2012, and shall terrain Cite upon completion of the Project or on March 31, 2014, whichever is earlier. Upon receipt of a written request and acceptable justification from Subrecipient, the GLO may extend this Contract for a period not to exceed three (3) months. Any request for extension must be received by the (DLO at least sixty (60) days before the Contract's original termination date. (b) HoWE ER, NOTWITHS'T'ANDING THE PRECEDING SECTION 3.0I(a), NO WORK MAY BEGIN AND NO COS'T'S WILL BE REIMBURSED FOR WORK UNDERTAKEN PmoR To OcTomeR 1, 2012. 3.02 EARLY'FERMINATION The GLO nlay terminate this Contract by giving written notice specifying a termination date at least thirty (30) days subsequent to the date of the notice. Upon receipt of any such notice, Subrecipient shall cease work, undertake to terminate any relevant subcontracts, and incur no further expense related to this Contract. Such early termination shall be su111e;ct to the equitable settlement of the respective interests of the parties, accrued up to the date of termination. REMAINDER OF PAGE INTENI'IONAU.,Y LE vi, BLANK GLO Contract No. 13 -OJ6 -000 -6913 Page 6 of 17 ARTICLE 4. GRANT ADMINISTRATION 4.01 SUBMISSIONS p;xcept l-or legal notices that must be sent by specific instructions under Section 9.07 below, any written report, form, or request required to be submitted to the Grant Administrator under- this Contract shall be sent in Compliant format via email to the following email address: empreceipts q glo.texas.gov 4.02 PROGREss REPORTS Subrecipient shalt submit monthly 1 quarterly progress reports and a Final Report, as required in the Work Plan, in Compliant Format to the Grant Administrator at the time and in the manner prescribed in Supplelncut Article 1, Grant Adnunistration, in Attachment 13. 4.03 DELIVE ABLIeS Subrecipient shall submit each of the Deliverables, as required in the Work flan, in Compliant Format to the Grant Administrator at the time and in the manner prescribed in Supplement Article 1, Grant Administration, in Attachment 13. The GLO may require; Subrecipient to conform any data presentation or products funded under this Contract to reflect GLO comments. Deliverable due dates pray be amended by the Grant Administrator upon submission of a written request and detailed justification by Subrecipient. Modifications may require, the approval of NOAA, which may cause significant delays. Tim GRANT ADMINISTRATOR WILL INFORM SUBRF,CIPIENT IF THE REQUEST IS APPROVED. 4.04 RF1IMl3IJRSleMI,N7`RI?,QuEsTs Subrecipient shall submit requests for reimbursement for costs allowed under this Contract at the time and in the manner prescribed in Supplement Article 1, Grant Administration, in Attachment B. Requests fbr reimbursement under this Contract must be received by the GLO not later than sixty (60) days from the date Subrecipient incurs the expense. Failure by Subrecipient to comply in a timely manner with this _requirement may, at the GLO's sole discretion, result in denial of the request for reimbursement. Subrecipient may not charge "other operating costs" (i.e., administrative costs, computer usage fee, etc.) in addition to indirect costs, if such costs are already included in the calculation to determine Subrecipient's indirect cost rate. Failure by Subrecipient to submit a Deliverable in a timely manner may, at the GLO's sole discretion, result in withholding of a percentage of the reimbursement request until Subrecipient submits said Deliverable. C. LO Contract No. 13 -046- 400 -6913 Page 7 of 17 4.05 Additional Grant Compliance requirements Suhrecipient shall comply with additional provisions relating to Grant Administration required by state and federal law in Supplement Article 1, Grant Administration, in Attachment 13. Suhrecipient understands and agrees to the terms included in the Supplement that require assurances, affirmation, actions, and activities to fulfill state and federal legal requirements. These requirements include, but are not limited to, Gl..,0 electronically stored information standards, acknowledgement of source of funds, special conditions for real estate improvements and land acquisitions, federal assurances, coastal management consistency declaration, and historically underutilized business plans. The information included in the Supplement is current as of the date of the execution of the Contract, but it is the sole responsibility of the Suhrecipient to ensure that it conlplies with the applicable legal requirements at any given time. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK GLO Contract No. 13- 446 - 404 -6913 Page 8 of 17 ARTICLE 5 — FEDERAL FUNDING / STATE FUNDING 1 RECAPTURE OF FUNDS I OVERPAYMENT S.OI FEDERAL FuND1Nr, (a) funding for this Contract is appropriated under the CMP, to be made available to the State of Texas by the U.S. Department of Commerce, National Oceanic and A.tniospheric Administration, pursuant to the p'cderal Coastal Lone Management Act of 1972, 16 United States Code Section. ] 451, et seq. The fulfillment of this Contract is based on those fiends being made available to the GLO as the lead administrative state agency. All expenditures under this Contract must be made in accordance with this Contract, the rules and regulations promulgated under the CMP Program, and any other applicable laws, hurdler, Subrecipient acknowledges that all funds are subject to recapture and repayment fi). non- compliance. (b) All participants in the CMP grant program must have a data universal numbering system (DUNS) number, as well as a Commercial And Government Entity (CAGE) Code. (e) The DUNS number and CAGE Cock must be reported to the GLO for use in various grant reporting documents, and may be obtained by visiting the System for Award Management web site at: sam.Q1ov Assistance with this web site may be obtained by calling 866 -606 -8220 5.02 STArr FUNDING (a) This Contract shall not be construed as creating any debt on behalf of the State of Texas and/or the GLO in violation of Article Ili, Section 49, of the `texas Constitution. In compliance with Article VIlI, Section C of the Texas Constitution, it is understood that all obligations of the GLO hereunder are subject to the availability of state fiends. If such funds are not appropriated or become unavailable, this Contract may be terminated. In that event, the parties shall be discharged from further obligations, subject to the equitable settlement of their respective interests, accrued up to the date of termination. (b) Furthermore, any claim by Subrecipient for damages under this Contract may not exceed the amount of funds appropriated for payment, but not yet paid to Subrecipient, under the annual budget in effect at the time of the breach. Nothing in this provision shall be construed as a waiver of sovereign immunity. WA) Contract No. 13- 046 - 000 -6913 Page 9 of 17 5.03 RECAPTIJR[; OF FUNDS Subrecipient shall conduct, in a satisfactory, manner as determined by the GLO, the Project as set forth in the Contract. The discretionary right of the G,O to terminate for convenience under SECTION 3.02 notwithstanding, it is expressly understood and agreed by Subrecipient that the GLO shall have the right to terminate the Contract and to recapture, and be reimbursed for any payments wade by the GLO (i) that exceed the triaximum allowable rates; (ii) that are not allowed under applicable laws, rules, and regulations; or (iii) that are otherwise inconsistent with this Contract, including any unapproved expenditures. 5.04 OVERPAYMENT Subrecipient understands and agrees that it shall. be liable to the GLO. for any costs disallowed pursuant to financial and /or compliance audit(s) of funds received udder this Contract. Subrecipient further understands and agrees that reimbursement of such disallowed costs shall be paid by Subrecipient from funds which were not provided or otherwise made available to Subrecipient under this Contract. REMAINDER OF PAGI' INTENTIONAL,L,Y LEFT BLANK GLO Contract No. 13 -046- 000 - 691.3 Page 10 of 17 ARTICLE 6. INTELLECTUAL PROPERTY 6.01 OWNERSHIP AND USE (a) ` 'be parties to this Contract expressly agree that all right, title, and interest in, and to, all reports, drafts of reports, or other material, data, drawings, computer programs and codes associated with this Contract, and /or any copyright or other intellectual property rights, and any material or information developed and /or required to be delivered under this Contract shall be ,jointly owned by the parties with each party having the right to use, reproduce, or publish any or all of such ilrl:ormation and other materials without the necessity of obtaining permission from the other party and without expense or charge. (b) The United States Government is granted a royalty free, non - exclusive, and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use, (or U.S. Government purposes, all reports, drafts of reports, or other n -laterial, data, drawings, computer programs, and codes associated with this Contract, and /or any copyright or other intellectual property rights, and any material or information developed and /or required to be delivered under this Contract. 6.02 NON ENDORSEMENT 13X T111i, STATE AND'1'I111 UNITED STATES Subrecipient shall not publicize or otherwise circulate promotional material (such as adver(isennents, sales brochures, press releases, speeches, still and motion pictures, articles, manuscripts, or other publications) that states or implies State of Texas or U.S. Government, or government employee, endorsement of a product, service, or position that the Subrecipient represents. No release of information relating to this Grant may state or imply that the State of Texas or the U.S. Govefnment approves of Subrecipient's work products, or considers Subrecipient's work product to be superior to other products or services. 6.03 PUIlt,rCATION I)ISCI,AIMI ItS RIB QITIRED The specific acknowledgements and funding statements that mast be included in certain publications funded by the Subrecipient are set forth in Stippleinent Article 3, Publication and Acknowledgement of Source of CMP I +antis, of Attachment B. 6.04 SURVIVAL Tia, PROVISIONS OF T ns AwrtCI,E 6 SHALL SURVIVE TIIE TERMINATION OR EXPIRATION OF THIS CONTRACT. ItrMAINmm OF PAGE INTENTIONAM,v Lteirr BLANK GI,o Contract No. 13- 046 -000 -6913 Page 11 of 17 AR'T'ICLE 7. RECORDS / RETENTION / PUBLIC INFORMATION 1 AUDIT REQUIREMENTS 7.01 BOOICs AND RECORDS Subrecipient shall keep and maintain full, true, and complete records in accordance with GAAP or GAS13, whichever is applicable, necessary to fully disclose to the Gt O, the Texas State Auditor's Office, the United States Government, and /or their authorized representatives sufficient information to determine compliance with the terms and conditions of this Contract and all state and federal rules, regulations, and statutes. 7.02 PI RIOT} OI+ RETENTION Subrecipient shell retain all records relevant to this Contract fora minimum of four (4) years. ]'[,my federal funds are used in the Contract, Subrecipient shall retain said records fora minimum of five (S) years. The period of.'retention begins at the date of payment by the G1..,O for the goods or services or From. the date of termination of the Contract, whichever is later. The period of retention shalll be extended for a period reasonably necessary to complete an audit and /or to complete any administrative proceeding or litigation that may ensue. 7.03 P(JBLIC INFORMATION Pursuant to the Public Information Act ('11W), records received from Subrecipient may be open to public inspection and copying. The GLO will have the duty to disclose such records, unless a particular record is made confidential by law or excepted from the PIA. Subrccipient may clearly label any individual records as a "trade secret," provided that Subrecipient thereby agrees to indemnify and defend the GLO for honoring such designation. The failure to so label any record shall constitute a complete waiver of any and all claims for damages caused by release of the records. If a request for a labeled record is received by the GLO, the GLO will notify Subrecipient of the request in accordance with the PIA. 7.04 Awwr REQUIREMENTS Subrecipient agrees that all relevant records related to this Contract or any work product produced, including those of its subcontractors, shall be subject at any reasonable time to inspection, examination, review, audit, and copying at any location where such records may be found, with or without notice by the Texas State Auditor's Office, the GLO, its contracted examiners, or the Texas Attorney General's Office. In addition, the NOAH, the Comptroller General, the General Accounting Office, the Office of Inspector General, or any of their authorized representatives of the U.S Government shall also have this right of' inspection. ALL SUI3C(}N'1'IiAC "I'S S1IAI..I1 RL,FLI +;C'I "I`IIIs,` RI?.QIJIRI;MF.N "I'S {}I'' "I'IIIS SIi, {' "rION. REM.AINI)rlt OF PAGE INT'ENT'IONALLY LuvT BLANK GLO Contract No. 13 -046 -000 -6913 Page 12 of 17 ARTICLE 8. EVENTS OF DEFAULT AND REMEDIES 8.01 Ev1 N'rs OF I)E AULT t ach of the following events shall constitute an Fvent of Default under this Contract: (i) Subrecipient's failure to comply with any term, covenant, or provision contained in this Contract; (ii) Subrecipient lakes a general assignment For the benefit of creditors or takes any similar action for the protection or benefit of creditors; or (iii) if at any time, Subrecipient makes any representation or warranty that is incorrect in any material resljeet to the Work Plan, any request for payment submitted to the GLO, or any report submitted to the GLO related to the Contract. 8.02 14,IV11;ou s; No WAIVER Upon the occurrence of any such Lvent of Default, the GLO shall be entitled to avail itself of any legal remedy, A right or remedy conferred by this Contract upon either Party is not intended to be exclusive of any other right or remedy, and each and every right and remedy Shall be cumulative and in addition to any other right or remedy given under this Contract, or hereafter legally existing upon the occurrence of an Event of Default. The failure of the GLO either to insist at any tirne upon the strict observance or performance of any of the provisions of this Contract, or to cxercisc any right or remedy as provided in this Contract, shall not impair any such right or remedy or be construed as a waiver or relinquishnrcnt thereof with respect to subsequent defaults. REMAINDER oFTAGE INTENTIONALLY LAFT LANK G1,0 Contract No. 13- 046 -000 -6913 Page 13 of 17 ARTICLE 9. MISCELLANEOUS PROVISIONS 9.01 CONTRACT AMENDMENT Unless otherwise provided herein, any amendment to this Contract must. be made by log mal Contract amendnrmnt, executed by both parties and, if required by federal law, approved by NOAA. 9.02 LEGAL OBLIGATIONS Subrecipient shall procure and maintain f=or the duration of this Contract any state, county, city, or federal license, authorization, insurance, waiver, permit, qualification or certification required by statute, ordinance, law, or regulation to be held by Subrecipient to provide the goods or services required by this Contract. Subrecipient will be responsible for payment of all taxes, assessments, fees, premiums, permits, and licenses required by law. Subrecipient agrees to be responsible for payment of any such government obligations not paid by its Subcontractors during performance of this Contract. Subrecipient shall not commence construction of the Project until it has obtained the requisite licenses and /or permits. COPIES OF SUCH LICENSES AND PERMITS SHALL BE INCLUDED AS A T'AR'E' Ole THE PROGRESS REPORT, AS DEFINED IN TIIIS CONTRACT, FOR THE PERIOD DURING WHICH THEY ARE OI3TAINED. 9.03 INDEMNITY AS GOVERNMENTAL ENTITIES AND AS REQUIRED UNDER THEE: CONSTI'T'UTION AND LAWS OF TIII: STATE Ole TEXAS, EACH PARTY t.)NDI,RS'I'ANI)S T'IIA'r T'III;Y ARE LIABLE FOR ANY PERSONAL INJURIES, PROPERTY DAMAGE, OR DEATH RESULTING FROM THE: ACTS OR OMISSIONS OF SUCH PARTY. IN THE EVENT THAT 'nw GLO IS NAMED AS A PAR'T'Y DEFENDANT IN ANY LITIGATION ARISING OUT OF ALLEGATIONS OF PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE: RESULTING FROM 'TIII +. ACTS OR OMISSIONS Ole SUBRECIPIENT, AND FOR WHICU TI1E GLO IS LIABLE, Ile AT ALL, ONLY 'I'llROUGII THE VICARIOUS LIABILITY OF SLIBRECIPIENT, THEN, IN SUCH EVENT, SUBTtECT1'Hi:N'I' AGItEL,S THAT IT WILL PAY, ON I3VIIA1,.F' OF THE CLO, ALL COS'T'S AND EXPENSES OF I,ITIGA'TION (INCLUDING ANY COURT COSTS, REASONABLE ATTORNEYS' FEES, FEES OF ATTORNEYS APPROVED BY THE OFFICE ON THE TEXAS ATTORNEv GENERAL) AS WELL AS ALL AMOUNTS PAID IN SETTLEMENT OF ANY CLAIM, ACTION, UR SUIT, INCLUDING JUDGMENT OR VERDICT, ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT, IN THE EVENI' TIIA'r SUBRE(,'II'IF,N'1' IS NAMED AS A PARTY DEFENDANT IN ANY LTI'IGATION SEEKING ANY DAMAGES FOR ANY PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH RESULTING OUT OF 'rHE, GLO'S ACTIONS OR OMISSIONS, AND SUBRECIPIENT'S SOLE LIABILITY, IF ANY, IS ONLY VICARIOUSLY THROUGH THE GLO, THEN, IN SUCII EVENT, TIII: GLO ACRE ES TO PAY ANY AND ALL CLAIMS, DEMANDS, Olt LOSSES, INCLUDING EXPENSES OF LITIGATION (INCLUDING REASONABLE AT'T'ORNEYS' FEF1S ANI) COURT COST'S) INCURRED BY SURRECIPIENT, INCLUDING ANY VERDICTS OR JUDGMENTS OR AMOUNTS PAID IN SETTLEMENT OF ANY CLAIM ARISING OUT OF, OR IN CONNECTION WITH THIS CONTRACT. ANY AITORNI VS RETAINED BY SUBRECIPIENT TO REPRESENI' ANY IN'1TEREST OF THE GLO MUST BE APPROVED BY 111E GLO AND BY 'THE. OCFICT, OF GLO Contract No. 13 -046- 000 -6913 Page 14 of 17 THE 'TEXAS ATTORNFY CENI,RAL. ANY ATTORNEYS .RETAINED BY TUE GLO 'ro RI',PIZESFNT I'IR, IN'l.'EIZES'r OT StJBRECIPII�NT MIfS'I' BI; APPROVED BY SI)BRr,,CII'IEN'r. 9.04 ASSIGNMENT AND SUBCONT'RAC'TS (a) Subrecipient shall not assign, transfer, or delegate any rights, obligations, or duties under this Contract not encompassed within the Work Plan without the prior written consent of the GLJO. Notwithstanding this provision, it is inutually understood and agreed that Subrecipient may subcontract with others for son-le or all of the services or work to be performed. in no event may Subrecipient delegate or transfer its responsibility for use of the funds under this Contract. (h) Subrecipient is responsible for upholding the integrity of the procurement process and must comply with the organizational conflicts of interest and/or noncompetitive procurement practices as required by Title 43, Code of Federal Regulations, Part 12, and the Grant Award Agreement, in connection with any subcontract tinder this Contract. (c) in any approved subcontracts, Subrecipient shall legally bind any such subcontractors to perform, and mare such subcontractors subject to, all the duties, requirements, and obligations of Subrecipient specified herein. Nothing in this Contract shall be construed to relieve Subrecipient of the responsibility for ensuring that that the goods delivered and/or the services rendered by Subrecipient and /or any of its subcontractors comply with all the terms and provisions of this Contract. A copy of each subcontract shall be submitted to the GLO within ten (10) business days after executio►1. (d) The GI,O and the NOAA shall have the right to initiate communications with any subcontractor, and may request access to any books, documents, papers, and records of a subcontractor which are directly pertinent to this grant. Such communications may be required to conduct audits and examinations and gather additional information as provided in Ain,wi ,, 7 and the Administrative and Audit Regulations. 9.05 RLI,A'1'LUNSrill' Oh `rHla 1'ARTIIS Subrecipient is associated with the GLO only for the purposes and to the extent specified in this Contract, and, in respect to Subrecipient's performance pursuant to this Contract, Subrecipient shall have the sole right to supervise, manage, operate, control, and direct performance of the details incident to its duties tinder this Contract. Nothing contained in this Contract shall be deemed or construed to create a partnership or joint venture, to create relationships of an employer- employee or principal- agent, or to otherwise create for the GLO any liability whatsoever with respect to the indebtedness, liabilities, and obligations of Subrecipient or any other party. 9.06 COMPLIANCE WITH OTHER LAWS In the perfornrance of this Contract, Subrecipient shall comply with all applicable federal, state, and local laws, ordinances, and regulations. Subrecipient shall make itself familiar GT..o Contract No. 13- 446 -000 -6913 Page 15 of 17 with and at all times shall observe and comply with all federal, state, and local laws, ordinances, and regulations that in any manner affect performance under this Contract. 9.07 No nccs Any notices required under this Contract shall be deemed delivered when deposited either in the United States mail, postage paid, certified, return receipt requested; or with a common carrier, overnight, signature required, to the appropriate address below: GLO Texas General t,and Office 1700 N. Congress Avenue, Mail Code 158 Austin, TX 78701 Attention: legal Services Division With a copy to: Texas General 1...and Office 1700 N. Congress Avenue, Room 330 Austin, 'TX 78701. .Attention: CMP Grant Administrator SURRUCIPIENT City of Corpus Christi 1201 Leopard Street Corpus Christi, TX 78401 Attention: Ronald Olson, City Manager Notice given in any other manner shall be deemed effective only if and when received by the party to be notified. Either party may change its address for notice by written notice to the other party as herein provided. 9.08 Govf;RNM. LAW Awn VENUI. `]'his Contract and the rights and obligations of the parties hereto shall be governed by, and construed according to, the laws of the State of Texas, exclusive of conflicts of law provisions. Venue of any suit brought under this Contract shall be in a court of competent jurisdiction in Travis County, 'Texas. Subrecipient irrevocably waives any objection, including any objection to personal jurisdiction or the laying of venue or based on the grounds of forum non conveniens, which it may now or hereafter have to the bringing of any action or proceeding in such .jurisdiction in respect of this Contract or any document related hereto. NO'rBING IN THIS SECTION SHALL BE CONST IA) AS A WAIVER OF SOVEREIGN IMMUNITY BY'I in, GLO. (LO Contract No. 1.3- 046- 000 -6913 Page 16 of 17 9.09 SEVERABILITY If any provision contained in this Contract is held to be unenforceable by a court of law, this Contract shall be construed as if such provision did not exist and the non - enforceability of such provision shall not be held to render any other provision or provisions of this Contract unenforceable. 9.10 DISPUTE RESOLUTION If a Contract dispute arises that cannot be resolved to the satisfaction of the parties, either party may notify the other party in writing of the dispute. If the parties are Unable to satisfiactorily resolve the dispute within fourteen (14) nays of the written notification, the parties must use the dispute resolution process provided for in Chapter 2260 of the 'Texas Government Code to attempt to resolve the dispute. This provision shall not apply to any matter with respect to which either party may make a decision within its respective sole discretion, 9.11 PROPm AU'1'Iloltrry Each party hereto represents and warrants that the person cxccuting this Contract on its behalf has :full power and authority to enter into this Contract. Subrecipient acknowledges that this Contract is effective for the period of time specified in the Contract. Any services performed by Subrecipient before this Contract is effective or after it ceases to be effective are performed at the sole risk of Subrecipient. 9.12 EN'r1RE CONTRACT AND MODIFICATIONS This Contract, its integrated attachment(s) constitute the entire agreement of the parties and are intended as a complete and exclusive statement of the promises, representations, negotiations, discussions, and other agreements that may have been made in connection with the subject matter hereof. Any additional or conflicting terms in such attachment(s) shall be harmonized with this Contract to the extent possible. Unless such integrated attachment specifically displays a mutual intent to amend a particular part of this Contract, general conflicts in language shall be construed consistently with the terms of this Contract. 9.13 COUNT E RPAWI S This Contract may be executed in any number of counterparts, each of which shall be an original, and all such counterparts shall together constitute but one and the same Contract. 9.14 OFFER SUBJECT TO CANCT,L,LAT1ON lie SUBRECIPIENT DOES NOT RETURN THE ORIGINAL SIGNED CONTRAC T TO THE GLO WITUIN T1ILRTY (30) DAYS OF TRANSMITTAL OF TI{li CONTRACT TO SUBRECIPIENT, SUBGRAN1" IaUNOING FOR T1Ik, PROJECT MAY lily, SUB.juur ,ro CANCELLATION. SIGNATURE PACE FOLLOWS GLO Contract No. 13 -046 -000 -6913 Page 17 of 17 SIGNATURE PAGE: FOR GL,O CONTRACT No. 13-046-000-6913 GI?N[s RM, LAND OFMCI?. CITY OF CORI'LIS 0 II2Is n Larry I.. Laine, C,hiefClerk/ By:_ Deputy Land Commissioner Title: Date old execution: Date of execution: REMAINDER OF PAGE INTENTIONAL x LLwi, BLANK ATTAC.I1MEN`I'S FOR GLO CONTRACT No. 13 -046 -000 -6913 ATTACHMENT A PRO EC"I' WORT( PLAN AND BUDGET ATTACII.M.F;N'F A-1 FINAL., AC TAL,13[7mx,,F (TO BE SUIIMIT ' D 13V SMIRF.CIVIF.NT) ATTACIIMF;NT H CMP SUPPL EMENTAL, TIi,RMS AND CONDITIONS M "I'ACHMENT C:' FI;DERAI, AssuRANCES — CONSTRUCTION OR NON- CONSTRUCTION PROGRAMS AND C1i,1 FIFICATIONS RmARDING LOBBYING M I'ACUMENT I) GENERAL AFFIRMATIONS M"I'ACNMENT E.- SAMI'.Lx ADDrrIONAL IZI QUnua) FORMS; Progress Report Forin; Invoice for Federal l-'xpendilures; Monthly Grant Project Equipment Sheet; Monthly Grant Project `1'imesheet; Budget A niendment horin; Audit Reporting Dorm; and Historically Underutilized Businesses JI B) Expense Report Dorm Local Match Expenditure Forms: Monthly Grant Project Equipment Sheet; Monthly Grant Project Timeshect; and Volunteer `himesheet AT`FACIIMENT F: GRANT CLOSEOUT FORM A "FTACHMENTS FOLIsow Attachment A GLO Contract No. 13 -046- 000 -6913 Page 1 of 4 Attachment A - Work Plan and Budget Contract Number: 13 -046- 000 -6913 Project Name: Public Access and Environmental Enhancements at the Hans and Pat Suter Wildlife Refuge Phase 11 Entity: City of Corpus Christi Project Description: Under Phase II, the City of Corpus Christi will increase public access and environmental enhancements by performing; the following activities on the southern portion of the refuge: 1.) Replace a highly degraded 3,300 linear foot asphalt nature trail with an ADA- accessible, water permeable decomposed granite trail; 2.) Reroute the trail away from an eroding shoreline where the trail is in danger of being undermined and washed away; 3.) Install six educational signs interpreting coastal wildlife and explaining the need for environmental enhancements such as water conservation, invasive species control, and nonpoint source pollution abatement; 4.) Build an ADA - accessible wildlife viewing platform; 5.) Remove invasive species such as Brazilian peppertree, lead ball tree, and Chinese tallow; and, 6.) Increase species diversity by planting native plants near trail heads and other locations in the refuge. The Hans & Pat Suter Wildlife Refuge, located on Ennis Jos] in Road near Nile Drive (approximately 27° 42'17.12"N; 97° 20'08.68 "W), with its mix of scrub upland habitat and lowland marsh habitat, provides an ecologically diverse home for many migrating birds along the banks of Oso Bay. The 22 acre refuge is known for the waterfowl and shorebirds that frequent Oso Bay and its outlet into Corpus Christi Bay, and is a primary nesting site for herons and other resident and migratory species. In addition to its importance to area wildlife, the refuge is one of the city's premier nature tourism sites, drawing visitors from across the country. The refuge's value to the region was recognized by area businesses, conservation organizations, and the Visitors and Convention Bureau last year when the groups joined together in an effort to improve the refuge by completing; Phase 1, the northern part of the park. Phase I included the installation of a shade structure, educational signage, irrigation at a butterfly garden, security enhancements, and invasive species removal. The Coastal Fiend Bays foundation (C13Bf) is planning a third phase of enhancements to address shoreline erosion at the park by creating a spartina marsh offshore, on state -owned land, to break and lessen wave energy. Phase III is currently under development and the CBBF is coordinating with the city through project advisory committee meetings. Attachment A GLO Contract No. 13- 046 -000 -6913 Page 2 of 4 Attachment A - Work Plan and Budget Project Budget: Special Award Conditions: 1. This project must be completed as described in this work plan. 2. The GLO and/or NOAA must approve any changes in the scope of work or budget requests that change the total project cost. 3. In the event that the GLO and NOAA determine that the project or property is no longer used for its original purpose, the recipient shall reimburse NOAA for the federal funds received for the project. 4. CMP and NOAA logos, including appropriate acknowledgment statement, must be printed on education /outreach materials, signs, and final reports and/or publications. 5. A portion of the nature trail replacement crosses over a previously recorded archeological site (41NU 15); the Texas Historical Commission has determined a professional archeologist be on site to monitor the removal process and any other activities with potential to impact buried intact cultural resources within the boundaries of the archeological site. Task 1 Description: Construction and Removal Activities Contract for the removal of existing asphalt trail and replacement of the trail (and realignment where necessary from an eroding shoreline) with a new 3,350 linear foot crushed granite trail. Through the use of erosion control devices and selected plantings, the contractor will ensure that the area affected by the construction does not erode during trail construction. Trail costs include the installation of six interpretive signs. Interpretive sign desings need to be submitted to the GLO for review /approval prior to fabrication. CMP Subrecipient Third Party Project Total Salaries $0.00 $0.00 $0.00 $0.00 Fringe $0.00 $0.00 $0.00 $0.00 Travel $0.00 $0.00 $0.00 $0.00 Supplies $0.00 $0.00 $0.00 $0.00 Equipment $0.00 $0.00 $0.00 $0.00 Contractual $100,000.00 $66,667.00 $0.00 $166,667.00 Other $0.00 $0.00 $0.00 $0.00 Subtotal; $100,000.00 $66,667.00 $0.00 $166,667.00 Indirect $0.00 $0.00 $0.00 $0.00 Total: $100,000.00 $66,667.00 $0.00 $166,667.00 Special Award Conditions: 1. This project must be completed as described in this work plan. 2. The GLO and/or NOAA must approve any changes in the scope of work or budget requests that change the total project cost. 3. In the event that the GLO and NOAA determine that the project or property is no longer used for its original purpose, the recipient shall reimburse NOAA for the federal funds received for the project. 4. CMP and NOAA logos, including appropriate acknowledgment statement, must be printed on education /outreach materials, signs, and final reports and/or publications. 5. A portion of the nature trail replacement crosses over a previously recorded archeological site (41NU 15); the Texas Historical Commission has determined a professional archeologist be on site to monitor the removal process and any other activities with potential to impact buried intact cultural resources within the boundaries of the archeological site. Task 1 Description: Construction and Removal Activities Contract for the removal of existing asphalt trail and replacement of the trail (and realignment where necessary from an eroding shoreline) with a new 3,350 linear foot crushed granite trail. Through the use of erosion control devices and selected plantings, the contractor will ensure that the area affected by the construction does not erode during trail construction. Trail costs include the installation of six interpretive signs. Interpretive sign desings need to be submitted to the GLO for review /approval prior to fabrication. Attachment A GLO Contract No. 13 -046- 000 -6913 Page 3 of 4 Attachment A - Work Plan and Budget Contract for design and construction of ADA accessible wildlife viewing platform overlooking Oso Bay. Remove invasive species (primarily Brazilian pepper, leadball, and Chinese tallow) and plant native species (grasses for erosion control, native trees and forbs along the trail and in other areas of the park) for species diversity. The city forester recommends cutting the trees at groundlevel and a singular application of glyphosate to the wound, This method has been used to successfully remove invasive trees at other coastal parks. Deliverables) /Milestone(s): Provide project manual (technical specifications and complete set of construction drawings) for the ADA- compliant crushed granite trail and the ADA- accessible wildlife viewing platform overlooking Oso Bay for GLO Construction Services Division review /approval prior to bidding and awarding a contract(s), September 1, 2013; Laid package(s) (bid matrix, request to bidders), for review /approval prior to bidding the project, upon completion; Provide copies of awarded construction contract(s), upon execution; Provide conceptual design of the interpretive signs for GLO review, September 1, 2013; and Photos of removal of invasive species, completed plantings, installed interpretive signs, CMP sign, granite trail, and viewing platform (provided in final report), December 31, 2013, Deliverable Due Date(s): 1.2 /31/2013 Task 2 Description: Project Reporting Prepare and submit all reports, deliverables, and requests for reimbursement as required in the contract, to CMPReceipts @GLO.TEXAS.GOV, Submit a Final Report including (a) photographs before, during, and after the removal of invasive species, completed plantings, granite trail, and viewing platform; and (b) photographs of the installed interpretive and CMP signs. Monthly Progress reports are due to CMPReceipts cJGLO.TEXAS.GOV on the 10th day of every month starting with .January 10, 2013. Requests for reimbursement are to be submitted in a timely manner to Attachment A GLO Contract N4. 13 -046- 000 -6913 Page 4 of 4 Attachment A - Work flan and Budget CMPReceipts @GI..O,TEXAS.GOV, as specified in the contract. Deliverable(s)/Milestone(s): Monthly progress reports and requests for reimbursement; and Finial Report, Iaecember 31, 2013. Deliverable line Date(s): 3/31/2013 Attachment B Page l of .lit CMP SOBGRANT SUPPIAeMCNTAt, TERMS AND CONDITIONS ARTICLI.1 - ERRANT ADMINISTRATION 1_.1 GENERAL REQUESTS Subrecipient may submit requests provided for in the Contract, in writing via email, in Compliant Format. Requests must cite the nature of the request, the section of the Contract that authorizes the request, and a detailed justification for the request. A request is granted only upon receipt by Subrecipient of written approval from the Grant Administrator. Forms and Deliverables mast be submitted in a compliant format to: cm recei is a) lo.texas. gov 1.2 GRANT ADmINISTRATION Fohms (a) Recurring forms that must be submitted to the GLO Grant Administrator can be downloaded at the following web address: l�ttlr;Uwww. lo.texas.#�nvl�vlrat- eve- dolcarira - for - tyre- eoastl r'ants- furidin �Icrn jI raritee -re uirernents.htYnl A copy of the current version of each recurring form required is included in Attachment E, for convenience. however, as these forms are updated from time to time, Subrecipient should periodically check the website for updated forms. Subrecipient is responsible for using the proper forms. (h) Subrecipient must submit certain additional forms required by the Contract or the Grant to show that Subrecipient has complied with required state and federal laws applicable to the Grant. The fibrins and certifications described below are found in Attachment C. (i) Dither the federal Assurances for Construction Programs (Standard Form 4241)) or Assurances for Non - Construction Programs (Standard Form 42413), as applicable to the Project, is found at Page 1 of Attachment C, and must be executed by Subrecipient. (ii) Certifications Regarding Lobbying Lower Tier Covered Transactions (Form CD -512) is found at Page 3 of Attachment C, and must be executed by Subrecipient. Subrecipient may check for vendor debarment at the Federal General Services Administration's Excluded Parties List System at: htt rs:Ilwww.c ls. ovl (iii) Disclosure of Lobbying Activities Form. (Standard Form -U,L) is found at Page 4 of Attaclunent C, and must be submitted by CMP Subgrant Supplemental Terms and Conditions Attachment B Page 2 of 14 Subrecipient if required by Section 5.5 of the Supplemental 'Ferms and Conditions, relating to Lobbying Disclosure. 1.3 PROGRESS REPORTS Subrecipient shall submit monthly progress reports that must be received by the GLO on or before the I4th day of each calendar month during the term of this Contract, commencing January 10, 2013 ( "Progress Reports "). Progress Reports must be submitted electronically in Compliant Format to the Gant Administrator oil the Progress Report form, a sample of which is attached hereto in Attachment E. The Progress Report forth may be downloaded at: htt s:llwww. lo.texas. fovlwhat- we- dolcarilr - fog•- tlxe- coastl sraalts- f�t��clint; /cmn /grantee- rcgnit �.ments.lrtml All Progress Reports shall include: (a) a brief statement of the overall progress of each task identified on the Work Plan since the last progress report; (b) a brief description of any problems that have been encountered during the previous reporting period that will affect the Work flan, delay the completion of any portion of this Contract, or inhibit the completion of or cause a change in any of the Work Plan objectives; (e) a description of any action Subrecipient plans to undertake to correct any problems that have been encountered; and (d) a status report on the Budget, as defined in this Contract. In addition, Subrecipient trust submit a Project closeout form to the GLO Grants Administrator upon completion of the Project. The closeout form may be found at: litt ):/ /www. lo.texits. ov /wliat- we- (Io /carin T- for -thc- coast/ rtrants- funding /entp /grantee- rec�uirctnents.httnl 1.4 DELIVERABLES Subrecipient shall submit electronically each of the Deliverables set forth in the Work Plan in Attachment A, in Compliant Format, and in the time and manner prescribed therein, to the Grant Administrator. 1.5 RFiMB(JRSEMENT REQUESTS 1 MATCH DOCUMENTATION Each request for reimbursement shall: (a) prominently display "GLO Contract No. 13- 046 - 000 - 6913,°, the failure of which may significantly delay payment under the Contract; (b) be on the approved GI,O forms, which may be downloaded at: http_ / /www.L,lo.texas.gov /what- we- do/cai-iiig- for - the - coast /grants- fun€ling /cmp /grantec -r egnirements.lttmI provided, however, that a university or university system may submit its standard invoice in lieu of a GLO invoice forth. CMP Subgrant Supplemental Ternrs and Conditions Attachment B Page 3 of 14 (c) be supported by an invoice detailing each expense by Budget category in accordance with the Project Budget in Attachment A; (d) include a timesheet or a payroll clearing account spreadsheet; and (e) provide such other information as the GLO may request. Reimbursement requests / match documentation shall be supported by actual receipts, cancelled checks, and /or such other documentation that, in the judgment of the GL0, allows for full substantiation of the costs incurred. Requests for payment must be submitted in Compliant Format via email to the Grants Administrator monthly. R :QtJt!,s,r,s FOR REIMBURSEMENT UNDFR THIS CONTRACT" MUST BE RFCEIVLD BV TIII CLO NOT LATER THAN SIXTY (60) DAYS FROM TILE DA'I'le SUBRECIPII Nh INCURS THE .E;XPENST,. FAIIAJRI, BY SUBRECIPIENT TO COMPLY IN A TIMELY MANNER WITII THIS REQUIREMENT MAY, AT THE GLO's SOLE DISCRETION, RESULT IN DENIAL OF THE RC QUEST IEOR REIMBURSEMENT. Subrecipient shall submit requests f:or .reimburscinent for costs allowed under this Contract at the time and in the manner prescribed in Supplement Article 1, Grant Administration, in Attachment B. Subrecipient may not charge "other operating costs" (i.e., administrative costs, computer usage fee, etc.) in addition to indirect costs, if such costs are already included in the calculation to determine Subrecipient's indirect cost rate. 1.6 BimciE'.T VARIANCE Upon written request and justification by Subrecipient to the Grants Administrator, reallocation arnong; budget categories may be allowed. Subrecipient must use the GLO Budget Amendment Form. "Phis form may be downloaded at: htt p:Uwww rants- Such reallocations may not increase or decrease the amount of the ,grant or total Budget; and shall be effective only after approval by the GLO. Any request for a variance that changes the total budget amount or the Project scope or outcome may be allowed only through the formal, written Contract amendment process. A FINAL, ACTUAL 13UI)GFT, TO BE AT`CACHI!..D TO TTIE CONTRACT AS A,FTAC11n7ENr A-1, SHALL, file SUBSTITUTED FOR THE EXISTING BUDGET IN ATTACIIME:N'r A, AND SHOULD BE SUBMITTED BY SUBRECIPIE,NT NO LATER MAN SIXTY (64) DAYS FROM THE; EXPIRA'.HON OR TERMINATION DATE: OT THE CONTRACT. 1.7 WITHHOLDING(RITAINAGE) AI 'PI =ICABLE:'roAl,I,PROJECTS To ensure full performance, the GLO may withhold (retain) an amount equal to thirty -three percent (33 %) of Subrecipient's grant amount until Subrecipient's delivery, and GLO's approval, of all Deliverables required herein. The GLO shall CMP Subgrant Supplemental 7 erms and Conditions Att €kctinjerrt 11 Page 4 of 14 make a final disbursement only upon receipt of documentation sufficient to determine that Subrecipient has completed the Project in accordance with the Work flan, and that all requirements of the Contract and the relevant provisions of the Grant have been fulfilled by Subrecipient. 1.8 PURCHASES Subrecipient shall not purchase any equipment and/or computer software; not included as a reimbursable item shown on the Budget in Attachment A. Title and possession of any fsquipment will remain the property of Subrecipient finless and until vansl:erred to the GL,O, upon written request by the GLO. Subrecipient shall furnish, with its final request for reimbursement, a list of all Lquiprrrent purchased with grant funds under the Contract, including the narne of the manufacturer, the model number, and serial number. The disposition of any Lquiprnent shall follow the Administrative and Audit Regulations, 1.09 Aun r COMP IANCT (a) The GLO, as a pass - through entity, has the responsibility to ensure that Subrecipients expending rive HUNDIM) T11ot)SANn DOLLARS ($500,000.00) or more in. lcderal awards during each of the Subrecipient's fiscal years of funding have met audit requirements in accordance with U.S. Office of Management and Budget Circular A -133. If applicable, Subrecipient shall complete and return the Audit Reporting Form no later than September lof each year until the Contract is terminated. The Audit Reporting Forin may be downloaded at: litt : / /w+ww. >lo .texas, ,ovhviiat- we- (Iolc,irin - for -tlie- coast/ rarrts- fiijidin wl cL), Il trriiitee- regatireinictits.hnmi (b) In addition, Subrecipient agrees that all relevant records related to this Contract and any Deliverables produced in relation to this Contract, including the records and Deliverables of its Subcontractors, shall be subject to the Administrative and Audit Regulations. Accordingly, such records and Deliverables shall be subject, at any time, to inspection, examination, audit, and copying at any location where such records and Deliverables may be found, with or without notice from the GLO or other government entity with necessary legal authority. Subrecipient agrees to cooperate fully with any federal or state entity in the conduct of inspection, examination, audit, and copying, including providing all information requested. Subrecipient will ensure that this clause concerning federal and state entities' authority to inspect, exandne, audit, and copy records and Deliverables, and the requirement to fully cooperate with the federal and state entities, is included in any subcontract it awards. CMP Subgrant Supplemental Terms and Conditions Attachment B Page 5 of 14 1.10 MATCIL DOCuWATATION l3vidence of match documentation shall: (a) be on the approved GLO forms, which may be downloaded at: htt : / /wvw w. -,lo.texas. ,ov /what- wve- do /cai-in - for -the- coast / rrants- f��r�di���; le��xpl�rantec- � °ec�uirer�ients.htMnl (b) be supported by an invoice detailing each expense by Budget category, in accordance with the Project Budget in Attachment A; and (c) provide such other information as the G1,0 may request. Match funding documentation must be identified clearly and may be submitted with or separate from a payment request. Each invoice shall be supported by copies of receipts, cancelled cheeks, or such other documentation that, in the sole udgmtent of the GL O, allows for full substantiation of the costs incurred. Payment requests may be denied if proper match has not been submitted, RU MAINDER OF PAGE INTENTIONALIN Lcrr BLANK CMP Subgrant Supplemental Perms and Conditions Attachment B Page 6 of 14 ARTICLE 2 - GLO ELECTRONICALLY STORED INFORMATION STANDARDS 2.1. GEOGRAPHIC INFORMATION SYSTEMS. Data, databases, and products associated with electronic Geographic Information Systems (GIS) that have been collected, manipulated, or purchased with CMP grant funds and/or local match funds will be subject to all applicable terms of the Texas Geographic lnfor °ation Standardv of the Texas Geographic Information Council ('r(11C) and 'Texas Administrative Code (TAC) §201.6, Planning and Management of hrfornlation Resources Technologies, Geographic Information Standards. The Geographic Information Standards Rule is available on the World Wide Web at www2.dirs fate. tx. uslsponsoredlticll 'agcslstandards.aspx, or by writing to the Department of Information Resources (DIR), 'l "GIC Administrative Chairperson, P.O. Box 13564, Austin, Texas, 7871.1 -3564, email: rob.aanstoos (a-)di1•.state.tx.us, or phone: 512- 463 -7314. 2.2 TRANSI +'ER OF :DATA. Any GIS data to be transferred or exchanged that is collected, manipulated, or purchased with funds from this contract MUST' be documented as specified in the Federal Geographic Data Committee (F'GDC) document Content Standard for - Digital Geospatial Meladata, version 2 (hGL)C- S`I'D -001 -1998) or later. 'I'hc federal metadata standard is available on the World Wide Web at www�govlmetadatalcsd 'n. Metadata must be submitted in lI "I'MI,, XMI, or ASCII text formats. 2.3 FORMAT. Although many Texas state agencies, including the GLO, have adopted Environtnental Systems Research Institute, Inc. (ESRI) software products as in -house GIS software, this is NOT an endorsement of these, or any other, products. However, any electronic spatial data collected, manipulated, or purchased with CMP grant funds and /or local snatch funds shall be transferred in a mutually- acceptable GIS format, along with corresponding rnetadata (see above). Non - spatial data deliverables (reports, tables, databases, spreadsheets, images) must be delivered in Acrobat 111A,, MS Office, WordPerfect, dBase (Abt), ASCII, or standard image forinats (./PEG, TIFF, Gil,, etc.). Acceptable media.for delivery include DVD, CD -ROM, flash drive, and external hard drive. Subrc,cipient is expected to comply with these guidelines. If Subrecipient cannot comply with these guidelines then Subrecipient must provide a written justification detailing why an exception is warranted. 2.4 COMPLIAN'r, FoaMAT Foiz GRANT ADmINISTRATION Subrecipients should submit written reports, requests in Word format; invoices and supporting documentation in pdf format; and photographs in jpg format and Ibrm unless otherwise agreed by the Grant Administrator. CMP Subgrant Supplemental Terms and Conditions Attacbment B Page 7 of 14 ARTICLE 3 — PUBLICATION AND ACKNOWLEDGEMENT OF SOURCE' OF CMP FUNDS 3.1 PUBLICATION (a) if Subrecipient or its etnployce(s) use NOAH financial assistance; to publish reports and other materials completed as a result of this Contract, the author shall assure that the paper bears the following statement as well as the NOAA and CMP logos on the front cover or title page of such document and other materials: A PUBLICXHON (OR REPOR 1) APPROVED 13Y THE TEXAS LAND COMMISSIONER PURSUANT' To NATIONAL, OCEANIC AND ATmospin RTC ADmINIST'RATION AWARD No. NAI2NOS4190021. (b) if Subrecipient or its employee(s) use NOAA financial assistance to publish a paper based in whole or in part on the work funded by this Contract, the author wall assure that the paper bears the following statement as well as the NOAH and CMP logos on the front cover or title page of the paper: TINS PAPER IS FUNDED ("IN PAR'.['" IF APPROPRIATE) BY A Gil ANTWOOPERATTVE M. RFEMENT FROM 'I' iE NATIONAL. OCEANIC AND ATMOSPHERIC ADmINIs'rRATION. Tim VIEWS VXPRESSEI) HEREIN ARE THOSE OF THE AUT1101109) AND DO NOT NECESSARILY REI+LECI' TIIE VIEWS oI+ NOAA OR ANY OF ITS SUB - AGENCIES. (c) if the Subrecipient or its employee(s) use NOAA financial assistance to produce signage, the Subrecipient shall assure that the signage bears the following statement as well as the NOAA and CMP logos on all signs: Tms PROJECT IS FUNDED (".IN PART" IF APPROP.RLATE) BY A GRANT APPROVED By 'I'm? TEXAS LAND COMMISSIONER PURSUANT' TO NATIONAL OCEANIC AND A'I'mOSPIIIemic ADMINI.STRWON AWARD No. NAI2NOS4190021. (d) When issuing statements, press releases, requests for proposals, bid solicitations, and other documents describing projects or programs funded in whole or in part with federal funds, including, but not limited to, state and local governments and recipients of federal research grants, the Subrecipient shall clearly state (i) the percentage of the total costs of the project or program which will be financed with federal money; (ii) the dollar amount of federal funds For the project of program; and (iii) percentage and dollar amount of the total costs of the project or program that will be financed by nongovernmental sources, ALL, DOCUMEN'T'S AND MATERIALS MUST CONTAIN ,rim,. NOAA AND CMP LOGOS ON T'HL, FRONT OR TITLE PAGE. (e) THIS PROVISION SHALL SURVIVE TLIE TERMINATION OR EXPIRA'T'ION O THIS CONTRACT. CMP Subgrant Supplemental Terms and Conditions Attachment B Page 8 of 14 3.2 SIGNAGle If facilities or other permanent improvements are constructed, Subrecipient shall provide and erect temporary signs during the construction phase of such projeets that contain the following language: CONSTRUCTION Ole THIS FACILITY WAS MADI+, POSSIBLE BY A GRANT UNDER 11IL COAS'T'AL. ZONE MANAGEMEN'C ACT OF 1 972, AS AMENDED, AND AWARDFI) BY 'rlll-, OI +TWICE OF OCEAN AND COASTAL. RESOURCE MANAGEMENT', NATIONAL OCEANIC AND ATMOSPIIEwc ADMINISTRATION, U.S. DEPARTMENT Of COMMERCE, AND APPROVED BY 'nlE TEXAS LAND COMMISSIONER AND TtIE TEXAS COASTAL MANAGEMENT PROGRAM. At the completion of the aforementioned projects, Subrecipicnt shall replace the temporary signs with permanent signs, to be provided by the GL,O. Permanent signs must also be erected for projects that include land acquisition. 3.3 SURVIVAL TIIE PROVISIONS otF Tills Awnct.,E, 3 SHALL SURVIVE 'I'llE TERMINATION Olt EXPIRATION OIL THE CONTRACT. REMAINDER ol� PACK: INTENTIONALLY LE ri, BLANK CMP Subgrant Supplemental `Perms and Conditions Attachment II Page 9 of 14 ARTICLE 4 e SPECIAL CONDITIONS APPLICABLE ONLY TO REAL ES'T'ATE IMPROVEMENTS AND LAND ACQUISITIONS 4.1 LAND ACQUISITIONS (a) In the event that private land is to be acquired with grant funds, Subrecipient shall have such land surveyed in the following manner: (1) any parcel of land that (i) does not abut any waters and (ii) is acquired by lot and block may be surveyed by a Registered Professional Land Surveyor. Any survey conducted by a Registered Professional Land Surveyor under this section must be accompanied by ccrtified copies of each subdivision block in which the acquisitions will be located, Subrecipient shall record any and all surveys required under, this subsection in the records of the County Surveyor (or the records ol'the County Clerk if there is no County Surveyor) of the county in which the land is Iocated; and (2) any other parcel of land must be surveyed by a. Licensed State band Surveyor. (b) In the event that a coastal boundary survey is required for the Project, Subrecipient must conduct the coastal boundary survey for the Project site in accordance with Section 33.136 of the "Texas Natural Resources Code. For surveys of tracts on or adjacent to Gulf beaches, raps, surveys, and/or profiles shall not delineate or nap vegetation, the line of vegetation, or the landward boundary of the public beach. Such maps, surveys, and /or profiles shall also not include any mention of the location of the line of vegetation or the boundary of the public beach. For any work funded in whole or part by CMP funds, vegetation, the line of vegetation, and /or the landward boundary of the public beach can only be mapped, delineated, or described with specific written authorization from the Gl_O. `The:, coastal boundary survey must contain the following statement: T1118 SURVEY DOFFS NOT, NOR IS IT INTENDED TO BE USED TO, IDENTIFY, DELINEATE, OR FIX THE LING OF VEGETATION OR THE LANDWARD BOUNDARY OF THE PUBLIC BEACH. (c) In addition, Subrecipient shall encumber the land with a conservation easement or a deed restriction, in a form acceptable to the GLO, that will protect the land and its natural resources and preserve the public use and benefit of the land. If Subrecipient chooses to encumber the land with a deed restriction, it must read as follows: THIS PROPERTY MUST BE USED IN PERPETUITY FOR THE PURPOSES FOR WHICH 11' WAS ACQUIRED UNDER THE COAS'rAL MANACYEMENT PROGRAM. IF THE PROPERTY IS EVER SOLD OR USED FOR CMP Subgrant Supplemental Terns and Conditions Attachment 13 Pitge 1.0 of 14 PURPOSES CONTRARY TO THOSE FOR WHICH IT WAS ACQUIRED, THE FEDERAI. AWARDING AGENCY MUST BE COMPENSATED IN ACCORDANCE WITH THE UNIFORM ADMINISTRATIvE.. REQUIREMENTS FOR GRANTS AND COOPVRA'rivi' ACRv,,Em ,N`I;S TO STATE AND LOCAi., GOVERNMENTS (15 C.F.R. PART' 24). (d) All appraisals performed in connection with the acquisition of land under this section shall he completed in accordance with the Uniform Appraisal Standards tar Federal Land Acquisitions and the provisions of the CMP attached Work Plan concerning land acquisitions. Tim S im,,y, APPRAISAL.,, CONSERVA'T'ION EASEMENT (III ANY), AND DEED MUST BE APPROVED BY TIll, G.L0. THE GILO WILL, NOT "HOLD" AN EASEMENT OR ACCFPT A THIRD-PARTY RIGHT OF ENFORCEMENT. 4.2 IMPItOV EMENTS (a) Prior to any construction undertaken. tinder this Contract, Subrecipient shall deliver to the GLO one (1) copy of the final construction contract documents, including the Project manual containing the technical specifications, and the drawings (collectively the "Contract Documents "), Any construction that will be undertaken with funding from this Contract shall be completed in compliance with the final Contract Documents approved by the GLO, and all applicable codes and standards. Upon completion of construction, Subrecipient shall submit a set of record ("as- built") drawings to document the final construction, as well as photographs of the completed construction, in the final report. Subrecipient may not remove any improvements constructed with finds provided under this Contract, unless the federal awarding agency is compensated in accordance with the Uniform administrative Requirements for Grants and Cooperative Agreements to State and Local Governments (15 C.F.R. Part 24). (b) if funds under the Contract are used to improve real property, Subrecipient must the a incmorandum. of agreement in the county records where the property is located notifying third parties as follows: TILTS PROPERTY MIDST BE USED IN PHIPETUITY FOR THE PURPOSES FOR WHICH 11' WAS ACQUIRED UNDER TIII, COASTAL MANAGEMENT PROGRAM. IF Tmic PROPERTY IS EVER SOLD OR USED FOR PURPOSES CONTRARY TO THOSE FOR WHICH IT WAS ACQUIRED, THE NATIONAL OCEANIC AND ATMo,sPi1ERLC: ADMINISTRATION MUST BE COMPENSATED IN ACCORDANCI. WTTII FE,D.T'.RAI, LAW (43 C.F.R. PART 12). (c) Prior to any construction undertaken under the Contract, Subrecipient shall deliver to the GLO one (1) copy of Plans to be used for the Project. Any CMP Subgrant Supplemental Terms and Conditions Attachment B Page I I or 14 construction to be undertaken with funding front the Contract shall be completed in compliance with final flans approved by the GLO. (d) UPON COMPLETION OF CONSTRUCTION, SUBItECII'IEN'I' SIIALL, SUBMIT A FINAL "AS BUILT" DESIGN, IT REQUIRED BV THE LOCAL BUILDING CODE Olt LOCAL BUILDING OFFICIAL, AS WELL AS PHOTOGRAPHS OF TIIE, CONSTRUCTION IN 'I'I °w FINAL, REPOM'. (e) Subrecipicnt may not remove any improvements constructed with fiends provided under the Contract, unless the United States (xovernment is compensated in accordance with the Administrative and Audit Regulations. 4.3 SUItvEYs RcQuwl) (a) Inland Survey. In the event that land is to be acquired with funds under the Contract, any parcel of land that (1) does not abut any waters and (2) is acquired by lot and block inay be surveyed by a "registered professional land surveyor" or "RI'LaS" as that term is defined in Chapter 1071 of the Texas Occupations Code. Any survey conducted by an RPLS under this section must be accompanied by certified copies of each subdivision block in which the acquisitions will be located. Subrecipient shall record any and all surveys required under this subsection in the records of the County Surveyor (or the records of the County Cleric if there is no County Surveyor) of the county in which the land is located. (b) Survey of Land Abutting Water. Any parcel of ]and to be acquired with funds under the Contract other than land described in Section 4.4(a), above, must be surveyed by a "licensed state land surveyor" or "LSLS" as that term is defined in Chapter 1071 of the Texas Occupations Code. The survey must meet the requirements of a Category f A, Land Title Survey, as defined in the Manual of Praclice,for Land 'Yurveying in Texas, published by the 'Texas Society of Professional Surveyors. Any survey conducted by an RPI_,S under this Section must be accompanied by copies of each recorded subdivision plat that includes any portion of the area to be acquired, and appropriate deeds and other documents referenced on the survey plat. (c) Coastal Boundary Survey. In the event that a coastal boundary survey is required for the Project, Subrecipient must conduct the coastal boundary survey for the Project site in accordance with Section 33.136 of the Texas Natural Resources Code. For surveys of tracts on or adjacent to GULF beaches, neaps, surveys, and/or profiles shall not delineate or trap vegetation, the line of vegetation, or the landward boundary of the public beach. Such maps, surveys, and /or profiles shall also not include any Mention of the location of the line of vegetation or the boundary of the public beach. For any work funded in whole or part by funds under the Contract, vegetation, the linc of vegetation, and /or the landward boundary of the public beach can only be mapped, delineated, or described with specific written authorization from the GLO. The coastal boundary CMP Subgrant Supplemental Terms and Conditions Aftachn)Cat T3 Page 12 of 14 survey, as well as surveys of land as described in Section 4.3(b), above, must contain the following statement: "J'11IS SURVEY 'DOTS NoT, NOR IS 11' INTENDED TO 13E USED TO, IDENTITY, DELINEATE, OR FIX THE LINT OF VEGETATION OR mE LANDWARD BOUNDARY OE THE PUBLIC B ACII." (d) REQUIRED I)EF,D LANGUAGE AND RESTRICTIONS. if Bards under the Contract are used to acquire real property, the acquisition deed must contain the following language: 'I'IHS PROPERTY MUST jo, USED IN PERPETUITY FOR THE PURPOSES FOR WHICH IT WAS ACQUIRED UNDER THE COASTAL MANAGEMENT PROGRAM, FUNDED BY NATIONAL OCF'.ANIC AND A'I'MoSPI1ERIC ADMINISTRATION GRAM, NO. NAI2NO8419002'1 (Momz GLO CONTRACT NCI. 13- 046 -000- 6913). )1F' THE PROPERTY IS EVER SOLD Olt USED FOR PURPOSES CON'T'RARY TO THOSE. FOR WHICH IT WAS ACQUIRED, THE FEDERAL AWARDING AGENCY MUST 13E COMPENSA'T'ED IN ACCORDANCE WITH THE UNIFORM ADMINISTRATIVF; REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREI +:;MENTS TO STATE AND Lo( "AL, GOVERNMENTS (15 C.F.R. FART 24). If grant funds under the Contract are used to improve public or private real property, Subrecipient must file in the real property records of the county where the property is located, a memorandum of restriction, conservation servitudes or easements affecting the real property, in a form acceptable to the GLO, that will protect the land and its natural resources and preserve the public use and benefit of the land. 4.4 APPRAISALS All appraisals performed in connection with the acquisition of land and /or casement under this section shall be completed in accordance with the Uniforrm. Appraisal Standards for f=ederal Land Acquisitions. 'These standards can be found at: -*v-*vw.usdpj.gov/eiird/land-acli/yb2OOl.l)df. 4.5 GLO APPROVAL OIL REAL. ESTA'IT DoctimENTS The survey, appraisal, and the meznoranduzm of restrictions, conservation servitudes, casement, or deed must be approved by the GLO. A recorded copy of the lmemorandurn of restrictions, conservation servitudes, casement, or deed must be submitted to the Grant Administer, The GLO will not "hold" an easement or accept a third -party right of enforcement. CMP Subgrant Supplenrental Ternls and Conditions Attachkoent 13 Page 13 of 14 ARTICLE 5 - MISCELLANEOUS TERMS AND CONDITIONS 5.1 fti)m [, IlEGULA'roRY REQUIREMENTS Subrecipient carries the responsibility to be aware of and comply with the cderal regulatory requirements for federal financial assistance awards included in the Code of Federat Regulations. 5.2 COMPLIANCE wIrn TEXAS COASTAL MANAGEMENT PROGRAM (CMP) If the Project is located within a coastal management zone established by Chapter 33 of the `texas Natural Resources Code, Subrecipient shall complete the requirements of the Contract in compliance with the CMP Rules, and shall ensure that the performance of all subcontractors is in compliance therewith. 5.3 FleDER. .., ASSURANCES Subrecipient shall execute the /assurances- ConstructionlNon- Construction Programs Form, attached to the Contract at Pace 1 of Attachment C, and submit it with the signed Contract, assuring that it will comply with all federal statutes listed thereon and, when applicable, shall obtain and return completed assurance of compliance tomes firorn its subcontractor's. 5.4 LOBBYING CERTIFICATION (a) Subrecipient, shall, by executing Standard horn CD -512, included at 11age 3 of Attachment C. certify hat no federal funds have been or will be paid to any person for influencing or attempting to influence any party named therein. Prior to engaging any contractor or subcontractor, Subrecipient shall verify the contractor's or subcontractor's eligibility for receiving state or federal fiends, using: the Federal General Services Administration's Excluded Parties 1,ist System located at: lrttps : /hvFV�v.e_nls.�v 5.5 LOBBYING DISCLOSURE If at any time any non- tederal finds have been paid for such purposes, Subrecipient shall complete and submit the Disclosure of Lobbying Activities Form (Standard l=onn- 1,11,), included at Page 4 of Attachment C. 5.6 HISTORICALLY C1NDERU'I'Lumo BUSINESSES (a) In accordance with State law, it is the G1,0's policy to assist HUBS whenever possible, to participate in providing goods and services to the GLO. The GLO encourages Subrecipient to adhere to this same philosophy in selecting subcontractors to assist in fulfilling Subrecipient's performance under the Contract. In addition to other information required by the Contract, Subrecipient will provide the Purchasing Department of the GLO with pertinent details of any participation by a HUB in fulfilling Subrecipient's performance under the Contract. CMP Subgrant Supplemental 'Perms and Conditions Attachnicut 13 Page 14 of 14 (b) The GLO encourages Subrecipiezrts to partner with certified HUBS that participate in the Comptroller's Mentor Protege Prograra. for rinore information on the program, and how it can assist your firm in meeting good faith effirt goals please visit: www.winc[ow.statc.tx.us/ rocurernent /grog/ mb /mentoir rotelye. (c) Sub.recipient shall suba -tit annually the HUB expense report included in Attacbment F. RimAINDI R OF PAGE INTENTIONALLY Ll',FT BLANK CMP Subgrant Supplemental 'Terms and Conditions ATTACHMENT C Page 1 of 5 QMB Approval No. 0348 -0042 ASSURANCES - CONSTRUCTION PROGRAMS Public reporting burden for this collection of information is estimated to average 15 minutes per response, including tirne for reviewi instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348- 0042), Washington, DC 205Q3, PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT AND BUDGET. SEND IT TO 'rHE ADDRESS PROVIDED BY THE SPONSORING AGENCY. NOTE, Certain of these assurances may not be applicable to your project or program. If you have questions, please contact the Awarding Agency. Further, certain Federal assistance. awarding agencies may require applicants to certify to additional assurances. if such is the case, you will be notified. As the duly authorized representative of the applicant, I certify that the applicant; 1. Has the legal authority to apply for Federal assistance, 8. Will comply with the Intergovernmental Personnel Act and the institutional, managerial and financial capability of 1970 (42 U.S.C. § §47284763) relating to prescribed (including funds sufficient to pay the non - Federal share standards for merit systems for programs funded of project costs) to ensure proper planning, under one of the 19 statutes or regulations specified in management and completion of the project described in Appendix A of OPM's Standards for a Merit System of this application. Personnel Administration (5 C,F.R. 900, Subpart F). 2. Will give the awarding agency, the Comptroller General of the United States and, if appropriate, the State, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to the assistance; and will establish a proper accounting system In accordance with generally accepted accounting standards or agency directives. 3. Will not dispose of, modify the use of, or change the terms of the real property title, or other interest in the site and facilities without permission and instructions from the awarding agency. Will record the Federal interest in the title of real property in accordance with awarding agency directives and will include a covenant in the title of real property aquired in' whole or in part with Federal assistance funds to assure non- discrimination during the useful life of the project. 4. Will comply with the requirements of the assistance awarding agency with regard to the drafting, review and approval of construction plans and specifications, 5. Will provide and maintain competent and adequate engineering supervision at the construction site to ensure that the complete work conforms with the approved plans and specifications and will furnish progress reports and such other information as may be required by the assistance awarding agency or State. 6. Will initiate and complete the work within the applicable time frame after receipt of approval of the awarding agency. 7. Will establish safeguards to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest, or personal gain. 9. Will comply with the Lead -Based Faint Poisoning Prevention Act (42 U.S.C. § §4841 et seq.) which prohibits the use of lead -based paint in construction or rehabilitation of residence structures. 10. Will comply with all Federal statutes relating to non- discrimination. These include but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (P.L. 88 -352) which prohibits discrimination on the basis of race, color or national origin; (b) Title IX of the Education Amendments of 1972, as amended (20 U.S.C. § §1681- 1683, and 1685 - 1685), which prohibits discrimination on the basis of sex; (c) Section . 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. §794), which prohibits discrimination on the basis of handicaps; (d) the Age Discrimination Act of 1975, as amended (42 U.S.C. § §6101 - 6107), which prohibits discrimination on the basis of age; (e) the Drug Abuse Office and Treatment Act of 1972 (P,L, 92 -255), as amended, relating to nondiscrimination on the basis of drug abuse; (f) the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91 -616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (g) § §523 and 527 of the Public Health Service Act of 1912 (42 US.C. § §290 dd -3 and 290 ee- 3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (h) Title Vill of the Civil Rights Act of 1968 (42 U.S.C. § §3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; (i) any other nondiscrimination provisions in the specific statutes) underwhich application for Federal assistance is being made; and, 0) the requirements of any other nondiscrimination statute(s) which may apply to the application. Standard Form 424 (Rev. 7 -97) Previous Edition Usable Authorized for Local Reproduction Prescribed by OMB Circular A -102 Will comply,. or has already compiled, with the requirements of Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91 -646) which provide for fair and equitable treatment of persons displaced or whose property is acquired as a result of Federal and federally - assisted programs. These requirements apply to all interests in real property acquired for project purposes regardless of Federal participation in purchases. 12• Will comply with the provisions of the Hatch Act (5 U.S.C. § §1501 -1508 and 7324 -7328) which limit the political activities of employees whose principal employment. activities are funded in whole or in part with Federal funds. 13• Will comply, as applicable, with the provisions of the Davis - Bacon Act (40 U.S,C. § §276a to 276a -7), the Copeland Act (40 U.S.C. §276c and 18 U,S,C, §874), and the Contract Work Hours and Safety Standards Act (40 U.S.G. § §327- 16 333) regarding labor standards for federally- assisted construction subagreements. ATTACHMENT C Page 2 of 6 i7. National Environmental Policy Act of 1969 (P.L, 91- 190) and Executive Order (EO) 11514; (b) notification of violating facilities pursuant to EO 11738; (c) protection of wetlands pursuant to EO 11990; (d) evaluation of flood hazards in flcodplains in accordance with EO 11988, (e) assurance of project consistency with the approved State management program developed under the Coastal Zone Management Act of 1972 (16 U.S.C. § §1451 et seq.); (f) conformity of Federal actions to State (Clean Air) Implementation Plans under Section 176(c) of the Clean Air Act of 1955, as amended (42 U.S.C. § §7401 et seq.); (g) protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended (P.L. 93 -523); and, (h) protection of endangered species under the Endangered Species Act of 1973, as amended (P.L. 93- 205)., Will comply with the Wild and Scenic Rivers Act of 1968 (16 U.S.C. § §1271 et seq.) related to protecting components or potential components of the national wild and scenic rivers system. 14. Will comply with flood insurance purchase requirements of Section 102(a) of the Flood Disaster Protection Act of 1973 17. Will assist the awarding agency in assuring compliance (P.L. 93 -234) which requires recipients in a special flood with Section 106 of the National Historic Preservation hazard area to participate in the program and to purchase Act of 1966, as amended (16 U.S.C. §470), - EO 11593 flood insurance if the total cost of insurable construction (identification and protection of historic properties), and and acquisition is $10,000 or more. the Archaeological and Historic Preservation Act of 1974 (16 U.S.C. § §469a -1 et seq.). 15. Will comply with environmental standards which may be prescribed pursuant to the following: (a) institution of 18. Will cause to be performed the required financial and environmental quality control measures under the compliance audits in accordance with the Single Audit Act Amendments of 1996 and OMB Circular No. A -133, "Audits of States, Local Governments, and Non - Profit Organizations." 19. Will comply with all applicable requirements of all other Federal laws, executive orders, regulations, and policies governing this program. THIS FORM MUST BE EXECUTED BY AN OFFICIAL AUTHORIZED TO BIND SUB ECIPIEN T SIGNATURE OF AUTHORIZED CERTIFYING OFFICIAL ITITLE APPLICANT ORGANIZATION (DATE SUBMITTED SF -424D (Rev. 7-97) Back ATTACHMENT C Page 3 of 5 FORM CD -512 UA KPARTMEW OF COMMERCE [7.87) LF CERTIFICATIONS REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION ®LOWER. TIER COVERED TRANSACTIONS AND LOBBYING Apptrcanls should refer to the regulations cited below to determine the certification to which thay are required to ailest. Applicants should also review the instructions for certification included in the regulations before completing this form. Signature on this form provides for compliance with certification requirements under 15 CFR Part 26, "Governmentwide Debarment and Suspension (Nonprocurement)" and 15 CFR Part 28, "New Restrictions on Lobbying" 1, DEBARMENT, SUSPENSION. INELIGIBILITY AND VOLUNTARY EXCLUSION —LOWER TIER COVERED TRANSACTIONS As required by executive Order 12549, OLharment and Suspension, and implemented of 15 CFR Part 26, Section 26.510, Participants responsibilities, for prospective participants in lower liar covered transactions (except subcontracts for goods or services under the $25,000 small purchase threshold unless the sublier recipleni will have a critical influence on or substanlive control over the award), as defined at 15 OF Part 26, Sections 26.105 and 26.110 -- (1) 'rho prospective lower tier participant ccdifies, by submission of this proposal, Ihat.neilher it nor its principals is presunliy debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. (2) Where the prospective lower tier participant Is unable to certify to any of the statements in this Certification, Such prospective participant shall allach an explanation to this proposal. 2. LOE313YING As required by Section 1352, Title 31 of the U.S. Code, and implomenlod at 15 CFR Part 28, for persons entering into a grant, cooperative agreement or conlract over $100,000 or a loan or loan guarantee over $150,000 as defined at 15 CFR Part 28, Sections 26,105 and 28.110, the applicant cortifes that to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to tnfluenco an offrcor or employee of any agency, a Member of Congress in conncedion with the owardlnru of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering Into Of any cooperative agreement, and the extensfon, Conlinuatlon, renown[, amendrnent, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Fedora) appropriated funds have been paid or will be paid to any person for Influencing or attempting to influence an officer or employee of any agency. a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this Federal Contract, grant, loan, or cooperative; agreement, the undersigned shall complelo and submit Standard Form•LLL, "[disclosure Form to Report Lobbying." in accordance with its inshucilons. (3) The undersigned shall require that the language of this certificallon be included in thu award documents for all subawards al all tlors (including subcontracts, subgran(s, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclosa accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for mailing or entering into this transaction imposed by section 1352, title 31, U.S Code. Any person who fails to file the required certification shall be subject to a civil penally of not less Than $10,000 and not more than $100,000 for each such failure. Statement for Loan Guarantees and Loan Insurance The undersigned states, to the best of his or tier knowledge and belief, that; In any funds have been paid or will be paid to any person for influencing or attempting to Influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress In connection with this commitment providing for the United Slates to insure or guarantee a loan, ilia undersigned shall complete and submit Standard Form, LLL, "Disclosure Form to Report Lobbying," in acwrdanc e with its rnstruatrons. Submission of this statement is a prerequisite for making or entering into Ihls Irori5action Lrtposad by section 11$52, title 31, U.S. Code, Any person who fails to file the required statement shall hu subject to a civil penalty of not less than $110,000 and not more than $100,000 for cacti such failure, As the duly authorized representative of the applicant, I hereby certify that the applicant wilt comply with the above applicable certif !cation (s). NAME OF APPLICANT PRINTED NAIVE AND TITLE OF AUTHORIZED REPRESENTATIVE SIGNATURE AWARD NUMBER AND /OR PROJECT NAME CDBG -DR ITOME. CONSTRUCTION PROJECTS DATE THIS FORM MUST BE. FXECUTED BY AN OFFICIAL AUTI-IORIZF -D TO BIND SUBRFCIPIENT ATTACHMENT C Rage 4 of 5 DO NOT EXECUTE UNLESS / UNTIL REPORTING LOBBYING ACTIVITIES DISCLOSURE OF LOBBYING ACTIVITIES AppovedbyOMB Complete this form to disclose lobbying activities pursuant to 31 U.S.C. 1352 0348-0046 lSee reverse for public burden disclosure.) 1. Type of Federal Action: 2. Status of Federal Action: 3, [deport Type: a. contract �a. bidlnfferlapplication El a. initial filing b. grant b, initial award b. material change c. cooperative agreement c. post -award For Material Change Only: d. loan year_ quarter e. loan guarantee date of last report �_.. f. loan insurance 4. Name and Address of Reporting Entity: S. if Reporting Entity in No. 4 is a Subawardee, Enter Name �] Prime 0 Subawardee and Address of Prime: Tier if known; re Con ssional District, if known: Con recce, ssionai District, if known: fi. Federal Department/Agency: 7. Federal Program NamelDescription: CFDA Number, if applicable: - 9, Federal Action dumber, if known: 9. Award Amount, lfknown: 10. a. blame and Address of Lobbying Registrant b. individuals Performing Services (including address if (lfIndividual, last narne, first name, MI): different from No. 10a) (last name, first name, Ml): .�.�. tnromvkn requested tluoagh this form Is authNWd by t1Ue 31 U.S.G, seciten 1352. itva cactouav or robbing wtiviries Is a material ropmwntOwl of (ad upe" Midi r9anco was plarod W tho ves abtrra when this transaction rrax made or anrared into. 7h 1+ ufiseicnora is requsrod pursuant la 31 u,5.e. ,352. lhif Y fognOorr VW] be repww to dse congre34 and vNl bo avciiswo r x VAN Inapscdoa. Any pamm Who faits to Glo t" required OW94uro shalt be tubjed to a C" penalty d nat.ress mat 110,000 and not rosin Nan $100.000 for each Wchra"O. Signature: �_- print Name: Title: Telephone No.: _ Date: iss 4_ Avlhnrized for Lngl Ra rnducGnn Standard FormLLL(Rev.7-97) T C r. 4k-M4, • #AA�fV s Rage 5 of 6 INSTRUCTIONS FOR COMPLETION OF SF- LL.L,, DISCLOSURE OF LOBBYING ACTIVITIES This disclosure form shall be completed by the reporting entity, whothor subawardee or prime federal recipient, at rite Initiation or receipt of a covered Federal action, or a waterialchange to a prevtoustiling, pursuant to true 31 U,S.C. section 1352. The filing of a form is required for each payment or agreement to make payment to any lobbying entity for Influencing or attempting to influence an officer or employsoof any agency, a Member of Congress, an officer or employee of Congress, or an emptoyacof a Memberof Congress in connectionwith a covered Federalaclion, Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional Information. 1, Identify the type of covered Federal action for which lobbying activity is and/or has been secured to Influence the outcome of a covered Federal action. 2. Identify the status of the covered Federal action. 3. Identify the appropriate classification of this report. If this Is a followup report caused by a material change to the information provlouslyreported, enter the yearand quarter in which the change amurred. Enter the date of the last previously submitted report by this reporting entity for this covered Federal action. 4. Enter the full name, address, city, State and zip code of the reporting entity. Include Congressional District, if known. Check the appropriate classification of the reporting entity that deslgnatesif It is, or expects to be, a prime or subaward recipient. Identify the Uer of the subawardee,e.g., the first subawardee of the prime Is the 1st tiar. Subawards Include but are not limited to subcontracts, subgfonts and contract awards under grants. 5. If the arganizationfiling the report In item 4 checks "Subawardee, "then enter the full name, address, city. Slate and zip code of the prime Federal recipient. Include Congressional District, If known, 6. Enterthe name of the Federal agency making the award or loan commitment Include at least one organlzaUunallevel below agoncyname, if known. For example, Department of Transportation, United States Coast Guard. 7; Enter the Federal program name or description for the covered Federal action (item 1), It known, enter the hull Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan commitments. 8. Enter the most appropriate Federal Identifying number available for the Federal action Identified in Item 1 (e,g„ Request for Proposal (RFP) number; invitation for Bid (11`8) number; grant announcement number, the contract, grant, or loan award number; the appticallon/proposal control number assigned by the Fede(at agency), Include prefixes, e.g., "RFP -0E- 90-(101 ° 9. For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the Federal amount or the awardlioan commitment for the prlmo entity Identified in item 4 or 5. 10. (a) Enter the full name, address, city, State and zip code of the lobbying registrant under the Lobbying Disclosure Act of 11995 engaged by the reporting entity identified In item 4 to Intiuonco the covered ✓ ederal action. (b) Enter the full names of the individual(s) performing services, and Include full address if different from 10 (a). Enter Last Name, First Name, and Middle HUM (AAi). 11, Tile certifying official shell sign and date the form, print his/her name, title, and telephone number. According to the Poperwork Reduction Act, as amended, no persons are required to respond to a collection of information unless It displays a valid OMB Control Number. The valld OMB control number for this information collection Is OMB No, 034t1.0048, Public reporting burden for this collodion of information is esllmared to average 10 minutes per response, including time for reviewing instructions, searching existing data sources, gathering arid maintaining the data needed, and compteting and reviewing the collection of Informallon. Sand comments regarding the burden estimate or any other aspect of this collection of Information, Including suggesiloris for reducing this burden, to lice Office of Management and Budget, paperwork Reduction Project (0348- 0046), Washington, DC 20503, Attachment D Page I of 2 GENERAL AFFIRMATIONS Provider agrees without exception to the following affirmations: 1. The Provider has not given, offered to give, nor intends to give at anytime hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or smvice to a public servant in connection with this Contract. 2. Pursuant to Title 10, Section 2155.004 of the Texas Government Code, the Provider has not received compensation from the GLO for preparing any part of this Contract. 3. Under Section 231.006, Family Code, the vendor or applicant certifies that the individual or business entity named in this contract, bid, or application is not ineligible to receive the specified grant, loan, or payment and acknowledge's that this contract may be terminated and payment may be withheld if this certification is inaccurate. Any Provider subject to this section must include names and ,Social Security numbers of each person with at least twenty -five percent (25 %) ownership in the business entity named in this Contract. This information must be provided prior to execution of any offer. 4. Provider certifies that the individual or business entity named in this Contract: i) has not been subjected to suspension, debarment, or similar ineligibility to receive the specified contract as determined by any federal, state, or local governmental entity; ii) is in compliance with the State of Texas statutes and rules relating to procurement; and iii) is not listed on the federal government's terrorism watch list as described in executive order 13224. Entities ineligible for federal procurement are listed at http: // ww.ep1s.gov. Provider acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate. 5. Provider agrees that any payments due under this Contract will be applied towards any debt, including, but not limited to, delinquent taxes and child support that is owed to the State of Texas. 6. Provider certifies that they are in compliance with Texas Government Code, Title 6, Subtitle B, Section 669.003, relating to contracting with the executive head of a state agency. If this section applies, Provider will complete the following; information in order for the bid to be evaluated: Name of Former Executive: Name of State Agency: Date of Separation from State Agency, Position. with Provider: Date of Employment with Provider: 7. Provider agrees to comply with Texas Government Code, Title 10, Subtitle D, Section 2155.4441, relating to the purchase of products produced in the State of Texas under service contracts. Attachment 1) . Page 2 of 2 8. Provider understands that acceptance of funds under this Contract acts as acceptance of the authority of the State Aud'itor's Office, or any successor agency, to conduct an audit or investigation in connection with those funds. Provider farther agrees to cooperate frilly with the State Auditor's Office, or its successor, in conducting the audit or investigation, including providing all records requested. Provider will ensure that this clause is included in any subcontract it awards. 9. Provider certifies that if it employs any former employee of the GLO, such employee will perform no work in connection with this Contract during the twelve (12) month period immediately following the employee's last date of employment at the GLO. 10. The Provider shall not discriminate against any employee or applicant for employment because of -race, disability, color, religion, sex, age, or national origin. The Provider shall take affirmative action to ensure that applicants are employed and that employees are treated without regard to their race, color, sex, religion, age, disability, or national origin. Such action shall include, but is not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Provider agrees to post notices, which set forth the provisions of this non - discrimination article, in conspicuous places available to employees or applicants for employment, The Provider shall include the above provisions in all subcontracts pertaining to the work. 11. Provider understands that the GLO does not tolerate any type of fraud. The agency's policy is to promote consistent, legal, and ethical organizational behavior by assigning responsibilities and providing guidelines to enforce controls. Any violations of law, agency policies, or standards of ethical conduct will be investigated, and appropriate actions will be taken, Providers are expected to report any possible fraudulent or dishonest acts, waste, or abuse affecting any transaction with the GLO to the GLO's Internal Audit Director at 512.463.5338 or trac�.hall la.state.tx.us Norm: Information, documentation, and other material in connection with this Contract may be subject to public disclosure pursuant to the "Public Information Act," Chapter 552 of the Texas Government Code. REMAINDER ors` PAGE INTENTIONALLY LrF ]r BLANK ATTACHMENT b Rage 7 of 14 PROGRESS REPORT (Project Name) (GLO Contract No.) (Reporting Period) Task is (Name of task as identified in Attachment A of your contract) Status of the task during this reporting period: []in progress ❑completed ® Estimated Task Percentage Completed E:1% ® Briefly describe major accomplishments for this reporting period. * List the deliverable(s) /milestone(s) completed during this reporting period. (Submit a copy of your completed deliverables) /milestone(s) with this report.) e Were there any problems or obstacles encountered during this reporting period (e.g., delays, remedial action taken, schedule revision). ❑Yes []NO If yes, please explain: ® Briefly describe plans for the next reporting period, (Repeat for each task, If necessary. If work on a particular task has not begun or has been completed, do not include in progress report.) Page 1 of 2 ATTACHMENT Page 2 of 14 Please provide a current budget breakdown. (Double Click on budget tables to activate Excel.) *Obligated includes - Funds that have been incurred by the recipient but have not been paid by the recipient, such as executed contract agreements or acquired supplies /materials /equipment. 'age 2 of 2 Current Federal /CMP Billed to Date Obligated *CMP Budget Remaining CMP Budget Personnel $ - $ - $ _ $ F rin e $ - $ - $ - $ - Travel $ - $ - $ _ $ - S upplies $ - $ $ - $ Equipment $ - $ $ - $ - C ontractuaI $ - $ _ $ - $ Other $ - $ - $ - $ - S ubtotal $ - $ - $ - $ - IndirectCosts $ - $ $ - $ - Totals $ - $ - $ - $ *Obligated includes - Funds that have been incurred by the recipient but have not been paid by the recipient, such as executed contract agreements or acquired supplies /materials /equipment. 'age 2 of 2 Current Local Budget Billed to Date Obligated' Local Budget Remaining Local Budget Personnel $ - $ $ - $ F rin e $ - $ $ - - Travel $ - $ - $ - $ Supplies $ - $ $ - $ E quipment $ - $ - $ - $ Contractual $ - $ $ - $ - Other $ - $ - $ - $ - Subtotal $ - $ - $ - $ - IndirectCosts $ - $ - $ - $ - Totals $ - - $ $ - *Obligated includes - Funds that have been incurred by the recipient but have not been paid by the recipient, such as executed contract agreements or acquired supplies /materials /equipment. 'age 2 of 2 Current 3rd Party Budget Billed to Date Obligated* 3rd Party Budget Remaining 3rd Party Budget Personnel $ _ $ $ - $ F rin e $ - $ - $ - $ Travel $ $ - S upplies $ - $ _ $ - $ Equipment $ - $ - $ - $ - Contractual $ - $ - $ - Other $ - $ S ubtotal $ - $ Indirect Costs $ - $ - $ *Obligated includes - Funds that have been incurred by the recipient but have not been paid by the recipient, such as executed contract agreements or acquired supplies /materials /equipment. 'age 2 of 2 ATTACHMENT E Page 3 of 14 INVOICE FOR CMP FEDERAL EXPENDITURE Invoice Date: Federal ID No.: Invoice No.: Expenditure Period: GLO Contract No,: FINAL Invoice: Yes 1 No Project Title: Subrecipient: Phone: Email Address: Submitted by: Signature: Printed Blame: 1 I Date For GLO Use Only: Expenditure Period : Requisition # Requisition # COBJ : GLO Contract # : Approved by Contract Specialist: Approved by Project Manager : Invoice approved for reimbursement: Grant Manager: Entered in DB by: Date final Documentaion Recevied Invoice Aunt : $ Invoice Amt:, $ Payment Subject to Prompt Pay Act: Yes / No Date: Date: Date: Date: Questions? Contact Sharon Moore 512.463.5$19 or sharon.rnoore @glo. texas.gov Revised 0912019 C!! P Amount Expenditures this Previously Amount Budget Category Budgeted Invoice Invoiced Remaining Personnel $0.00 $0.00 $0.00. $0.00 Friuge $0.00 $0.00 $0.00 $0.00 Travel $0.00 $0.00 $0.00 $0.00 Supplies $0.00 $0.00 $0.00 $0.00 Equipment $0.00 $0.00 $0.00 $0,00 Contractual $0.00 $0.00 $0.00 $0.00 Other $0.00 $0.00 $0.00 $0.00 Subtotal $0.00 $0.00 $0.00 $0.00 Indirect Costs $0.00 $0.00 $0.00 $0.00 Totals $0.00 $0.00 $0.00 $0.00 For GLO Use Only: Expenditure Period : Requisition # Requisition # COBJ : GLO Contract # : Approved by Contract Specialist: Approved by Project Manager : Invoice approved for reimbursement: Grant Manager: Entered in DB by: Date final Documentaion Recevied Invoice Aunt : $ Invoice Amt:, $ Payment Subject to Prompt Pay Act: Yes / No Date: Date: Date: Date: Questions? Contact Sharon Moore 512.463.5$19 or sharon.rnoore @glo. texas.gov Revised 0912019 E \ \ J 2 k § ri ¢ E » CLc � 2 . k I am ATTACHMENT E Page 4 of 14 \ « j \ \ 0x 0 f § \ b 2 §oƒ \ / § /� e § j § / \ / ) \ / %y G to { j tul 3 C4 \ /� M G /« q \Al—t— nij- am ATTACHMENT E Page 4 of 14 \ « j \ \ 0x 0 f § \ b 2 §oƒ \ / § /� e § j § / \ / ) \ / %y G to { j tul LU X W LU z .,J z 0 9 a; L: N E N E z a Z � a � CL a- 1a w n. a m ATTACHMENT E Page 5 of 94 0 w � If If W K w I- u. w W a 0 co LU m °w N F w Z w � � X N N m v H ✓1 L L L L i�7 oJC i i ro CJ If1 µ O Z f C ?; _E +% u L a N OC - d Cr7 c � r1 N N M 2 i O t- i2 i vs LL. 4 c L L L C T ro C7 N u 61 uj F H O N M n fl w cJ �U w a vs m In rN�I m ATTACHMENT E Page 5 of 94 0 w � If If W K w I- u. w W 0 LU m °w F w Z w � � X m v p oJC i�7 oJC Q µ O Z ?; +% u a N OC - S c m N cr O t- LL. } O c c p o a o ac no ro u h uj F O d n fl au cJ �U w a vs ATTACHMENT E Page S of 14 BUDGET AMENDMENT REQUEST Subrecipient Department Address City, State Zip Contact Name ]'[)one Fax GI.O Contract H IsederaI ID# Subtotal $0.00 $0.00 $0.00 $0.00 $0100 50.00 $0.00 $0.00 $0.00 Indirect Costs $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 `50.00 $0.00 Totals $0.00 $0.00 $0100 $0.00 Please justify your request below (include additional shects, as necessary). Signature of Authorizing Officio ►I Only: ]late $0.00 `50.00 $0.00 $0.00 $0.00 ur infor►nal budget amendment is approved. Please retain a copy of this form with your project file. nformal Budget Amendment Approved by Contract Specialist This copy of this form will become part ofyour permanent GLO legal file. Date: Current Requested Requested Requested Revised Current Current Other CMP Local Other Revised CMP Revised Local Other Budget Category CMI' B"dget Local Budget Budget f:hanges Changes Cha�cs Budget Budget Budget Personnel $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Fringe 50.00 $0.00 $0.00 $0.00 50.00 $0.00 $0.00 $0.00 $0.00 "Travel $0.00 $0.00 $0.00 $0.00 $0100 $0.00 $0.00 $0.00 $0.00 Supplies $0,00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Equipment $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Contractual $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Other $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 Subtotal $0.00 $0.00 $0.00 $0.00 $0100 50.00 $0.00 $0.00 $0.00 Indirect Costs $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 `50.00 $0.00 Totals $0.00 $0.00 $0100 $0.00 Please justify your request below (include additional shects, as necessary). Signature of Authorizing Officio ►I Only: ]late $0.00 `50.00 $0.00 $0.00 $0.00 ur infor►nal budget amendment is approved. Please retain a copy of this form with your project file. nformal Budget Amendment Approved by Contract Specialist This copy of this form will become part ofyour permanent GLO legal file. Date: ATTACHMENT E Audit Reporting Form Page 7 of 14 Subrecipients receiving (granted/awarded) federal funds, through the General Land Office (GLO), are subject to the requirements of the Single Audit Act of 1996, Office of Management and Budget (OMB) Circular No. A -133, (hf; /lwww.oqib.gov/ grants). Subrecipients expending (spending/reimbursed) federal funds totaling $500,000 or more in a fiscal year are required to conduct an audit in accordance with the Single Audit Act. Please complete this questionnaire, scan and email to CM1?Reccipts lgo tcxas.got or mail to: General hand Office Atttt. Coastal Management Program Coastal Resources Division P,O. Box 12873 Austin, Texas 78711 -2873 Section 1: Futi Information Name of Entity (Subreeipicnt) Project "Title and GLO Contract Number (additional grants rmy be listed on a separate purge) What is your entity's fiscal year? through Month / Year Month 1 Year Section 2: Single .Audit Requirement For your most recently completed fiscal year, account for all federal fiords (awards /grants) expended (spent/rcimbursed) regardless of the source. (Provide your most recently completed fiscal year below) For Fiscal Year 20 : What was the total amount of federal funds (awards /grants) expended (spent /reimbursed)? S ❑ If less than $500,000 in total federal fiords (awards /grants) were expended: Your entity is exempt from farther audit requirements for the reporting period. Complete Sections 4 and 5 (Federal Awards Information and Signature Sections). ❑ If $500,000 or more in total federal funds (awards/grants) were expended: Complete all remaining sections. Section 3: Audit Information a Date of your Entity's last completed audit: (Date) * Period Covered by Audit: through Month /Year Montli/Year * Audit Findings: ❑ No Findings (it is not necessary to submit a copy of your audit report package) ❑ Findings (provide a copy of your audit reporting package if findings were related to funds issued through the GLO. If findings were unrelated to GLO issued funds submit the sehedule of findings and questioned costs.) ® Next audit scheduled for: (Month /Year) ® Period to be covered by next scheduled audit: through Month /Year Month /Year Section 4: Federal Awards Information For the fiscal year provided, account for all federal fiutds (awards /grants) received (granted /awarded) regardless of the source. For Fiscal Year 20— (fiscal year must match fiscal year provided in section 2) What was the total amount of federal funds (awards/grants) received(granted /awarded)? $ (tor the fiscal year listed, use the following table to list the federal funds ( awards/grants) your entity received) Name of federal award(s) granted Period of Award Amount CFDA Number (mn»th /vr ,riniiYi�lrirl Section 5: Signature Section Signature of Preparer• Printed Name of Preparer and Date Preparer's Contact hnformation: Title Email: Phone:{ _ T ext. ATTACHMENT E Page g of 14 Instruction Sheet for the Audit Reporting Form The purpose of the Audit Reporting (AR) Forrn is to assist the General Land Office (GLO) in its obligations to adhere to federal guidelines for pass through entities issuing federal funds. The AR Form is equally beneficial in assisting entities receiving federal funds, through tile, GLO, to meet their audit reporting requirement. Federal guidelines for pass through agencies issuing federal awards and the subrecipients of those fluids are set forth in the Single Audit Act of 1996, Office of Management and Budget (OM13) Circular No. A-133. The OMB's websitc, k�ttg: /lwvaw_oEnEignv /grants, contains information regarding the Single Audit Act and its requirements. Review the following instructions for assistance in completing the Audit Repotting Form. Section 1: Entity Information. • Name of Entity --- The "Name of Entity" should match the name on the grant contract. • Protect Title and GLO Contract, Number – Provide the "Project Title and GLO Contract Number" for your entity's grant. The project title must match the title of the project found in "Attachment A" of the grant contract. A separate sheet listing additional project titles and contract numbers may be attached if necessary. • Ln–t–ty 's Fiscal Year –Provide the period covered by your entity's fiscal year. (i,e. tan. `06 through Dec. `06) Section 2. Single Andit Requirement. Following the text "For Fiscal Year 20—", insert your entity's fiscal year end for the reporting period (the most recently complete fiscal year). For the fiscal year listed, provide file total amount of federal funds (awards /grants) expended (spent/rcimbursed). Account for al] federal fiends expended, regardless of the source. Choose one of the following options: 1 . Mark the first box, if your entity has expended less than $500,000 in total federal funds. Your entity is exent)t from further audit requirements for the reporting period, but must complete Sections 4 and 5. 2. Mark the second box, if your entity has expended $500,000 or more in total federal fiords. Your entity is note gxempt from further audit requirements and must complete all remaining sections of the form. Section 3: Audit Information, • Date of Last Completed Audit -- Indicate the date of your entity's last completed audit. • Period Covered by Audit- Provide the period covered by your entity's last completed audit. "Phis period should correspond to the audit indicated on the previous line. • Audit Fludis – Choose one of the following options: I. Mark the box before "No findings" if your cntity's last completed audit disclosed no findings. If there were no findings, it is not necessary to provide a copy of your audit reporting package. 2, Mark the box before "Findings" if your entity's last completed audit disclosed findings. If there were findings, submit a copy of the audit reporting package, if the findings were related to GLO issued funds. If the findings were unrelated to GLO issued funds submit a copy of the schedule of findings and questioned costs. • Next Audit Scheduled for _ Provide the month and year of your entity's next scheduled audit. • Period Covered ley Next Audit -- indicate the period to be covered by your entity's next scheduled audit. Section 4: Federal Awards Information. • Following the text "For Fiscal Year 20 ", insert your entity's fiscal year end for the current reporting period (should match tkre fiscal year provided in Section 2). For the fiscal year listed, provide the total amount of federal funds (awards /grants) your entity has received (granted/awarded). Account for all federal funds received, regardless of the source. It is possible for the amount of federal funds received /awarded to not agree to the amount expended /spent. • Federal Grants Table - -For the fiscal year listed, use the table to provide: 1) the grants /awards that comprise the total amount of federal funds your entity received; 2) the period of awards (i.c, May '06 -- May `08); 3) amount of awards; and, 4) the Catalog of Federal I]omestic Assistance (CEDA) numbers for each award, If fire CFDA number is unknown, you may contact the issuing agency. If additional space is needed, attach a separate sheet listing the abovementioned federal grant information. Section 5: Signature Section. • Si nature of Preparer –The person who prepared the AR form must sign and date the form. • Printed Name of Preparcr – Print the name and title of the person who prepared the AR Dorm. • Preparer's Contact Information --- Provide an email address and phone number for the preparer. Form Return Information --- Use the return infonnation near the top of the Audit Reporting Dorm. Far additional assistance contact Melissa Porter, CMP Tearn Leader, at 512 -475 -1393 or by email at melissa•norter a�glo•statc.tx.us. ATTACHMENT E Page 9 of 14 HISTORICALLY UNDERUTILIZED BUSINESSES (HUB) EXPENSE RE, PORT (Project Name) (GLO Contract No.) (Reporting Period) In accordance with state law, it is the General Land Office's (GLO) policy to assist Historically Underutilized Businesses (HUBs), whether minority or women- owned, whenever possible in providing; goods and services to the GLO. The GLO encourages you to adhere to this same policy when selecting; sub - contractors to assist your organization in fulfilling its contractual obligations with the GLO, In that regard, please provide us with the estimated amount of project funds your organization paid to HUB vendors during the FY 20_ state fiscal year (September 1, 20 to August 31, 20__x. PROJECT AMOUNT PAID: TYPE OF ItUB VENDOR: American Women (WO) Hispanic Americans (111) Black Americans (BL) Asian Pacific Americans (AS) Native Americans (NA) Other 1 am not sure if this vendor is a I-IUD: Vendor's name Amount paid o1• No project funds were paid to a HUB vendor during the stated time period. Please scan and email this form to CM_PIZ.ecgipts cr�glp,texas.gov. If you should have any questions, please contact Ms. Sharon Moore at (512) 463 -5819 or at Sharon .n1oore�cr7&0.tcxas -&qy- ATTACHMENT E Page 10 of 14 LOCAL MATCH EXPENDITURES Submission Date: Federal ID No.: Submission No,: Expenditure Period: GI,O Contract No.: Project Title: Subrecipient: Phone: Email Address: Submitted by: Signature: Printed Name: 1 / n1tG Subtotal Local Amount Expenditures this Previously Amount Budget Category Budgeted Submission Submitted Remaining Personnel $0.00 $0.00 $0.00 $0.00 Fringe $0.00 $0.00 $0.00 $0.00 Travel $0.00 $0.00 $0.00 $0.00 Supplies $0.00 $0.00 $0.00 $0.00 Equipment $0.00 $0.00 $0.00 $0.00 Contractual $0.00 $0.00 $0.00 $0.00 Other $0.00 $0.00 $0.00 $0.00 Subtotal $0.00 $0.00 $0.00 $0.00 Indirect Costs $0.00 $0.00 $0.00 $0.00 Totals $0.00 $0.00 $0.00 $0.00 V: GLO Contract #: Expenditure Period: FY: FY: pproved by Contract Specialist: tered in Database: Scanned to DoeuShare: Date Final Documentation Received: Match Amount: $ Match Amount: $ Date: Date: Date: Questions? Contact Sharon Moore 512.463.5519 or sharon.moore a glo. texas. gov Revised 09/2011 Submission Date: Submission No.: GLO Contract No.: Project Title: Subrecipient: Phone: Email Address: Submitted by: ATTACHMENT E Page II of 94 THIN PARTY MATCH EXPENDITURES Signature: Printed Narne: Federal 1D No.: Expenditure Period: 1 I Date Subtotal $0.00 $0.00 Amount $0.00 Jndirect Costs Third Party Expenditures this Previously Almount Budget Category Ainount Budgeted Submission Submitted Remaining Personnel $0.00 $0.00 $0.00 $0.00 Fringe $0.00 $0.00 $0.00 $0.00 Travel $0.00 $0.00 $0.00 $0.00 Supplies $0.00 $0.00 $0.00 $0.00 Equipment $0.00 $0.00 $0.00 $0.00 Contractual $0.00 $0.00 $0.04 $0.00 Other $0.00 $0.00 $0.00 $0.00 Subtotal $0.00 $0.00 $0.00 $0.00 Jndirect Costs $0.00 $0.00 $0.00 $0.00 Totals $0.00 $0.00 $0.00 $0.00 I`or (xLu Use [fatty: GLO Contract #: Fxpenditure Period: FY: FY: Approved by Contract Specialist: Entered in Database: Scanned to DocuShare: Date Final Documentation Received: Match Arnount: $ Match Amount: $ Date: Date: Date: Questions? Contact Sharon Moore 512.463.5819 or Sharon. moore @glo. texas. gov Revised 0912011 / ( � § 2 » > J _ ATTACHMENT e A 12 of 14 § j \ / § 0 \ k \ § \ §oA § } § §S e \ j E \ / \ \ j E \ \ 2y J 2 e § ] ƒ/ \� 3 C4 M /m q ƒ / f 2 ƒ f f 2 / ƒ o w 00 e _ ATTACHMENT e A 12 of 14 § j \ / § 0 \ k \ § \ §oA § } § §S e \ j E \ / \ \ j E \ \ 2y J 2 e § ] ƒ/ � ? LU � � � m � � � w 2 « � q � I \ A & E E 2 \ ] / R t; 0 � � 3 k / d � ■ § k �x § � 0 §o § § E ATTACHMENT E Page 13 of 14 m § { ? x R 0 ° t \ � k } &Ld jjƒ §M/ §cc m \d //\ m =3 § » / �= w j§ \j ba ru CL U m R$ LU / � 8 ' }� q e / }m 3 co i2 t2 t2 /_ G q ■ § k �x § � 0 §o § § E ATTACHMENT E Page 13 of 14 m § { ? x R 0 ° t \ � k } &Ld jjƒ §M/ §cc m \d //\ m =3 § » / �= w j§ \j ba ru CL U m R$ LU � : Q � c §_ > k / 0 & 3 §, $ 0 IL m ATTACHMENT e Page 14 of 44 ATTACHMENT F Page 1 of 13 Texas Coastal Management Program Grant Closeout Form For more information, please contact Melissa Porter at Phone: 1(800) 998 -4GLO or (512) 475 -1393 Fax: (512) 475 -0680 Email: Melissa.Porter@aglo.texas.gov This form is intended to aid the Texas Coastal Management Program in its ability to quantify management outcomes and report the success of the Texas Coastal Management Grant Program to its federal partner, the National Oceanic and Atmospheric Administration, Office of Ocean and Coastal Resource Management. i'f -11110213 W _ 110 1 NA I Project Name: GLO Contract Number: Contract Period: to Organization Name: Organization Type:Select Organization Type Project Manager/ Principal Investigator: Address: Phone: Email: NOAA Award Number: County(ies):Select County(les) where project is located ATTACHMENT F Page 2 of 13 Project Category Please choose the project category that most appropriately describes your project, even if multiple categories are addressed. GOVERNMENT COORDINATION: Grant activities that improve government coordination and efficiency in ❑ coastal management while supporting active stakeholder and public participation. PUBLIC ACCESS: Grant activities that create public access sites by acquisition or easement'and /or ❑ enhance. public access for recreational purposes in the coastal zone. COASTAL, HABITAT: Grant activities that protect coastal habitat by acquisition or easement and /or ❑ restore previously degraded or altered coastal habitat in the coastal zone. COASTAL. HAZARDS: Grant activities that reduce damage from future hazards and/or increase public ❑ awareness of hazards in the coastal zone. COASTAL. DEPENDENT USES AND COMMUNITY DEVELOPMENT: Grant activities that help coastal [❑ communities develop and/or implement sustainable development ordinances, policies, or plans and/or update port or waterfront ordinances, policies, or plans. 1. Amount of CMP dollar spent 2. Amount of nonfederal matched dollars applied 3, Amount of leveraged dollars applied Texas GLO Coastal Management Program - Grant Closeout Corm Page 2 ATTACHMENT F Page 3 of 13 Dollars- repo ii" ed';should reflect the amount spent during the reportlrig period from all'awards or grants thr either technical, ar fi'rnan;cial assistance to'local govemmerfs. Please quantrfyAhe toWAroount of received acid matched'dollars spent an technical assistance to local contract period 4. Amount of CMP dollars spent on technical assistance to local governments. S. Amount of matched dollars spent on technical assistance to local governments. Texas GLQ Coastal Management Program e Grant Closeout Form Page 3 1. Number of overnrr eat Coordination educational activities offered with assistance from CMP funds, 2. Number of Plij,_Access educational activities offered with assistance from CMP funds. 3. Number of -OppstAlAlabitat educational activities with assistance; from CMP funds, 4. Number of CocstaMazq ss, educational activities offered with assistance from CMP funds. 5. Number of Coastal educational activities offered with assistance from CMP funds. Texas GLO Coastal Management program - Grant Closeout ]Form Page 4 y� ■ 0 The CIVI,P Program provides scientific and technical Jnformatlon artd.skrH buflding opportunities to intllviduals -who are;respons }ale for ... making decisions that - affect coos }al rssou�ces Using a lar ge of approaches CMP5lprovide= coasta.. 'Islas =makers with knowledge srid.fc�oI they need to address cnttcal- resource management issues Please'quantify the tofal number ,of traln' In' or autr ®ach;events offered by your proleet and fhe total, number of participants for each event for he" t rant contract enod by category, 1. Number of Government C.Qordin�.iinn training events offered with assistance from CMP funds. 2, Number of Pirb is gcce is training events offered with assistance from CMP funds. 3. Number of Coastal HaWal training events offered with assistance from CMP funds. 4. Number of CoasWUIazard-s training Events offered with assistance from CMP funds, 5. Number of Coa_ is ai e amen ntiJs s_ nd Col nnm— )t Deve_[_opmeot training events offered with assistance from CMP funds. 0 0 0 0 0 Texas GLO Coastal Management Program - Grant Closeout Form Page 5 1. Number of 0 overnment.C-oo-rdinati -m coordination events offered with assistance from CMP funds. 2. Number of F?u c Access coordination events offered with assistance from CMP funds. 3. Number of,(!aaAaL[WbtIaI coordination events offered with assistance from CMP funds. 4, Number of Goas- WIRazar -ct coordination events offered with assistance from CMP funds. 5. Number of SSoa a-ta I ()Qpend ant W.ea and C.omin .ni�y-.gevef�t i coordination events offered with assistance from CMP funds. Texas GLQ Coastal Management Program e Grant Closeout Form 0 0 0 0 0 Page 6 ATTACHMENT F Page 7 of 13 1, Number of public access sites created through acquisition or easement with assistance from CMP funds or staff. 2. Number of existing public access sites enhanced with assistance from CMl' funding. p Texas GLO Coastal Management Program a Grant Closeout Form Page 7 ATTACHMENT IF Page 8 of 13 2118014�4111`--E OWN WAN M 1. Number of tidal wetlands sites protected by acquisition or easementwith assistance from CMP funds or staff. Z Number of tidal wetlands sites restored with assistance from CMP funds or staff. 3. Number of beach and dune habitat sites protected by acquisition or easement with assistance from CMP funds or staff. 4. Number of beach and dune habitat sites restored with assistance from CMP funds or staff. 5. Number of nearshore habitat sites protected by acquisition or easement with assistance from CMP funds or staff. 6. Number of nearshore habitat sites restored with assistance from CMP funds or staff. T Number of other habitat sites (e.g, nontidal wetlands, coastal prairie, riparian forest, etc.) protected by acquisition or easement with assistance from CMP funds or staff. Texas GLQ Coastal Management Program e Grant Closeout Form 4 0 0 0 0 0 0 Page 3 ATTACHMENT F Page 9 of 13 Number of other habitat sites (e.g. nontidal wetlands, coastal prairie, riparian forest, etc.) restored with assistance from CIVIP funds or staff. "Texas GLO Coastal Management Program -Grant Closeout Form Page 9 ATTACHMENT F Page 10 of 13 1. Number of marine debris removal activities completed with assistance from CMP funds or staff. 0 Texas GLO Coastal Management Program m Grant Closeout Form Page 10 ATTACHMENT F Page 11 of 13 he purpose of this measure is.td describe the role of the;CIVIP Progra upport ng coastal cammumties'to reduce`.Ioss of Nfe and;; raperty from coastal hazards, enhance the ability. of state and local goven rpents and communities to respond to hazatd' events nd rise public awareness of coastal hazards lease.quan ify the totbl: number of coastal communities it the.coastalzone that colnplatad profects;to retluce future damage from azards andlor increase:; public awareness of hazards will i assistance from your project during the grarif contract period DEFINITiOW4 nt, (murdcApahly or county) Pr a spe�laf unit of cdayernrnent s4ch:`as a they are firs (ado 4 ring th.6 graritcontrz 1. Number of coastal communities that completed a project to reduce future damage from hazards with assistance from CMP funds or staff. 0 2: Number of coastal communities that completed a project to increase public awareness of hazards with assistance from CMP funds or staff: 0 Texas GLO Coastal Management Program - Grant Closeout Form Page it ATTACHMENT P Page 12 of 93 Wi 9. Number of coastal communities that developed or updated sustainable development ordinances, policies, and plans with assistance from CMP funds or staff. 2. Number of coastal communities that completed a project to implement a sustainable development ordinance, policy, or plan with assistance from CMP funds or staff. 3 Number of coastal communities that developed or updated port or waterfront redevelopment ordinances, polices, and plans with assistance from CMP funds or staff. g Number of coastal communities that completed a project to implement a port orwaterfront redevelopment ordinance, policy, or plan with assistance from CMP funds or staff. 5. Number of coastal communities that developed or updated polluted runoff management ordinances, policies, and plans with assistance from CMP funds or staff. 6. Number of coastal communities that completed projects to implement polluted runoff management ordinances, policies, and plans with assistance from CMP funds or staff. �l�blllkt t]�rnl�l� - t?rillt l Qrm 0 0 0 0 0 0 Texas GLO Coastal Management Program a Grant Closeout Form Page 12 ATTACHMENT F Page 13 of 13 User Email: Password: Sularn�t Form To IJataiaase' Texas GLO Coastal Management Program a Grant Closeout Form Page 13 0 AGENDA MEMORANDUM First Reading for the City Council Meeting of February 12, 2013 1852 Second Reading for the City Council Meeting of February 26, 2013 DATE: January 21, 2013 TO: Ronald L. Olson, City Manager FROM: Michael Morris, Director MichaelMo@cctexas.com 361- 826 -3494 Texans Feeding Texans Grant Award for the Home Delivered Meal Program CAPTION: Ordinance authorizing the City Manager or designee to execute all documents necessary to accept and appropriate a $140,220.79 grant from the Texas Department of Agriculture Texans Feeding Texans Program in the No. 1067 Parks and Recreation Grants Fund for the FY 2013 Senior Community Services, Elderly Nutrition Program. PURPOSE: Appropriate grant funds to supplement the Elderly Nutrition Program Home Delivered Meals Program. BACKGROUND AND FINDINGS: The City receives grant funding for the Senior Community Services Program through Federal and State grants that must be appropriated each year. Additional grant opportunities are also sought to expand program operations and fund special initiatives. This grant does not require any City match funding. The Texas Department of Agriculture's Texans Feeding Texans Program provides state funding to directly supplement or extend meal services to homebound persons that are elderly or disabled. The Senior Community Services, Elderly Nutrition Program coordinates the home delivered meals operations to provide a fully prepared, well - balanced noon meal to senior center members and homebound and /or disabled persons throughout the City. The meals are prepared at the Nutrition Education and Service Center located on the Del Mar College West Campus. Funding for this program is contingent on an approved resolution through the county in which meals are served. The Nueces County Commissioners Court approved a resolution to authorize the City of Corpus Christi's application for FY 2013 funding. The City of Corpus Christi's grant allocation was to be determined by census data for elderly living in Nueces County as included in the grant application submitted by Nueces County. Last year's funding for this grant was $117,301.38. The Texans Feeding Texans Program provides funds to supplement the food and food supply budget; supports two full time staff positions dedicated to the Home Delivered Meal Program and will allow for cost sharing the purchase of a new Client Data Management Software System. ALTERNATIVES: Do not accept the grant. OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: Not applicable. EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Legal, Accounting, Budget 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 140,220.79 140,220.79 Encumbered / Expended Amount This item 140,220.79 140,220.79 BALANCE 140,220.79 140,220.79 Fund(s): Grant Fund 1067 Comments: There is no required match for this grant. RECOMMENDATION: Staff recommends approval as submitted. LIST OF SUPPORTING DOCUMENTS: Ordinance Grant Agreement Ordinance authorizing the City Manager or designee to execute all documents necessary to accept and appropriate a $140,220.79 grant from the Texas Department of Agriculture Texans Feeding Texans Program in the No. 1067 Parks and Recreation Grants Fund for the FY 2013 Senior Community Services, Elderly Nutrition Program. Be it ordained by the City Council of the City of Corpus Christi, Texas: SECTION 1. The City Manager or designee is authorized to execute all documents necessary to accept and appropriate a $140, 220.79 grant from the Texas Department of Agriculture Texans Feeding Texans Program in the No. 1067 Parks and Recreation Grants Fund for the FY 2013 Senior Community Services, Elderly Nutrition Program. That the foregoing ordinance was read for the first time and passed to its second reading on this the day of 7 , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb That the foregoing ordinance was read for the second time and passed finally on this the day of by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb PASSED AND APPROVED, this the day of ATTEST: Armando Chapa City Secretary Nelda Martinez Mayor Application # HDM -13 -1100 Texas Department of Agriculture Texans Feeding Texans Program Ms. Mindy Fryer, Grants Specialist 1700 N. Congress Avenue Austin, Texas 78701 Dear Ms. Fryer: Enclosed is the signed Grant Agreement and Attachments for the Texans Feeding Texans Grant FY -13. Please advise if you need additional information. Sincerely, el Elsa Munoz, Superintendent Senior Community Services Parks and Recreation Department City of Corpus Christi 1201 Leopard Corpus. Christi, Texas 78401 361 - 826 -3145 Office 361 -826 -3151 Fax ElsaM @cctexas.com TODD SIAPLES COMMISSIONER Date: January 4, 201.3 To: 2013 IloYne Delivered Meal Provider From: Karen Reichek, Grants Coordinator PC Re: Texans Feeding Texans: Home-Delivered Meal Grant Program Agreement The Texas Department of Agriculture (TDA) is pleased to inform you that your 2013 application to the Texans Feeding Texans: flome- Delivered Meal Grant Program has been approved. Acceptanee of this grant is conditional upon the completion and return of the enclosed Grant Agreement ('Agreement"), Carefully review the Agreement to determine whether your agency can meet the conditions. The Agreement includes a budget form that must also be completed and returned. The budget should indicate how the organization intends to expend the 2013 grant funds. While we urge you to represent.your budget as accurately as possible, there are mechanisms described in the agreement, Section IX, 9.5, to revise the budget during the grant year, if necessary. Please note that the grant award will be distributed in two installments; once in February and the remaining funds in August. Grant funds must be used to dk9 ! p rent or extend existha meal services to hone otn ersons that are elder and/or have a disability. Grant funds may not be used for the purchase of capital assets, which would include any equipment valued at $5;000 or more. In order for TDA to monitor the expenditure of grant funds, you will be required to provide Quarterly Grant Spending Reports. It is important to know that the Quarterly Reports will require you to detail how TDA grant funds are spent. Please sign Agreement and attachments and return ALL DOCUMENTS b close of lousiness January 22, 2013. Physical Address: Ms. Mindy Fryer, Grants Specialist Texas Department of Agriculture 1700 North Congress Avenue Austin, Texas 78701 Mailing Address: Ms. Mindy Fryer, Grants Specialist Texas Department of Agriculture P.O. Box 12847 Austin, Texas 78711 A copy of the fully executed Agreement will then be returned to you for your records. If TDA does not receive your signed Agreement by the due date, your initial grant payment ivill be delayed. If you have any questions please contact Ms. Mindy Fryer at (512) 463 -6908 or by email at QKatlts(c-, exits_A,t'igW(ure�tyov_. P.O. Box 12847 Austin, Texas 78711 (512) 463 -7476 Fax: (888) 223 -8861 www-TexasAgricult ure.gov GRANT AGREEMENT Granter: Texas Depatrti ent of Agriculture P.O. Box 12847 Austin, 'i'exas 78791 Grantee: City of Corpus Christi, Parks and Recreation Department, Setlior C(:)ttattaunity Service. 1201 Leopard St. Corpus Ch-risti, Texas, 78401 Grant Program: Texans Feeding'Texans: Home- Delivered Meal Grant Progratir U.tatttAward: $140,220.79 `fern ofAgreen�ent: February 1, 2013 through January 31, 2014 Grant Number: fiDM -13 -1100 'I'DA - HDM HD.M -13 -1100 Trade & Business Development Grants Office Attachment A - Budget Article 1 Recitals 1.1 WHEREAS, Grantor: has established the 'Texans Feeding Texans: Home- Delivered Meal Grant Program ( "Program ") to distxibute giant funds to eligible organizations drat provide home,- delivered meals to homebound persons who are elderly and /or have a disability; and 1.2 WHEREAS, Grantee has applied for a grant from the Program and has met all requitements for receiving the (.rant. 1.3 NOW, THEREFORE, in consideration of the mutual promises and corisxcleration contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Article 2 Program Purpose and Grant Defined 2.1 In accordance with Section 12.042 of the Texas Agriculture Code, funds have been appropriated to the Grantor to help defray the costs of providing home- delivered rxicals that are not fully fctnded by the Department of Aging and Disability Services or an area agency Oil agitrg. 2.2 "Agreement" means this Grant Agreement and all attachments hereto. 2.3 "Department" —'T'he Texas De:partixtent of .1lgricu.lt:ure. 2.4 "Disability„ means a physical, t- rental or developmental impairnreut, tcri porari.ly or permanently limiting an individual's capacity to adequately perform one or more essential activities of daily living, which include, but are not limited to, personal and health care, moving around, communicating, and housekeeping. 2.5 "Elderly„ means an individual who is 60 years of age or older. 2.6 "Grant" means the funds awarded to Grantee by Grantor, subject to the mclui rein ent:s of this .Agreement, Texas Administrative Code Title 4, Part 1, Sections 1.950 et seq. and other Program requh:ements, in the amount: of $140,220.79 to be used in Nueces County. 2.7 "Homebound" means a person who is unable to leave his or her residence without aid or assistance or whose ability to travel from his or het: residence is substantially itnpaired. 2.8 Grantee: City of Corpus Christi, Parks and Recreation Department, Senior: Community Service, 1201 Leopard St,, Corpus Christi, Texas, 78401. 2.9 Grantor: 'Texas Department of Agriculture, 2.10 Grant Program: Texans Feeding'T'exans: Home- Delivered Meal Grarrt Program. 2.11 Grant Number: HDM- -13 -1100 2.12 Term of Agreement: February 1, 2013 through January 31, 2014. TDA -- HIM Page I of & Trade & Business Development -- Grants Office HDM -13 -1100 Article 3 Grantor and Grantee Obligations 3.1 Award by Grantor. Subject to the provisions of this Agreement and `Texas .A(1nlitlistratiVe Code 'T'itle 4, Part 1, Sections 1.950 et seq., Grantor hereby awards to Grantee the Grant, which Grantee shall use only to supplement attd extend existing services related clirectly to the delivery of meals to 1- lontehound Persons that are Elderly and /or have a Disability. 3.2 Payment Schedule. The Grantor shall ntake a grant award not later than February 1 to Grantee. Fifty percent (50 1/6) of grant funds awarded shall be allocated and distr.il)uted to C:aratttee on or before February 1. The remaining fifty percent (50 %) of such gratzt award shall be allocated and distributed to Grantee on or before .August 1. Notwithstanding arty other provision of this subchapter, the Department naay deny, revolve, suspend, ox withhold a grant award for misuse of grant funds, or failure to comply with any requirement of 1'exas Administrative Code 'Title 4, Part 1, Chapter 1, Subchapter- Q, Sections 1.950 et seq. 3.3 Performance by Grantee. Grantee shall. use Grant in accordance with the tetras of this . Agreement and 'T'exas .Administrative Code "title 4, Part 1, Chapter 1, Suhchahter Q, Sections 1.950 et secs. 3.4 Non- expended Grant Funds. Grantee rinderstands and acknowledges that grant funds that are not expended by Grantee prior to the end of the 'Term of Agreement, including any authorized extensions, must be returned to the Grantor. Failure to remit unused funds may result in legal action against Grantee, including, without litriitation, making Grantee in eligible for future Program funds. 3.5 Grantee's Menu and Substitution Procedure. Grantee shall have all menus and meal substitution procedures approved by a registered dietician or a person with a bachelor's degree (o.r higher) in food and nutrition, dietetics, or food service tnanagetuent, who is currently employed as a dietitian or dietary consultant in a hospital, nursing facility, school, home- delivered meal organization, or in private practice. Grantee shall Maintain documentation of such approval. 3.6 Grantee Meal Delivery and Temperature Standards and Procedures. Grantee shall taintain policies to ensure compliance with meal temperature standards and the Program's four -.hour delivery requi.retnent at each nteal preparation location. Grantee shall also maintain records demonstrating compliance with Grantee's policies. If Grantee does not comply with ineal temperature standards and the four --hour delivery requirement due to exceptional circumstances, the Grantee should seek a written waiver. from Grantor as soon as practicable following the occurrence of the exceptional event or circumstances. If Grantee fails to comply with the Program's four -hour delivery regiuretttent, Grantee will be. required to intpletnent corrective action, as determined by TDA, prior to applying for future funds. 3.7 Failure to Obtain a Food Establishment Permit or Comply with Texas Food Establishment Rules (TFER). If it is detertined that Grantee failed to obtain a required food establishment pertnit, or that Grantee failed to comply with TFER, Grantor, at its sole discretion, may exercise the remedies set forth in sections 6.1 and 7.1 of this Agreement, including, without ]imitation, termination of the Agreement and taking legal action to obtain full repayinent of the Grant.. TDA FIDM Page 2 of 8 Trade & Btainess Development - - Grants Office HDM- I3 -110o Article 4 Reporting Requirements 4.1 Budget. Grantee shall provide a detailed budget for the year:, attached hereto as "Aaachinerrt A ", not to exceed $140,220.79 for the Term of the Agreement, signed by the Grantee, using the budget categories by which Grantee shall be submitting Quarterly Deport information. 4.2 Quarterly Report. Grantee shall provide to Grantor a quarterly report in a format prescribed by Grantor. The report niust track the expenditure of Grant funds in sufficient detail to assure cotrrpliance with Program rules. Report due dates are as follows: • Mine 1, 2013 for the period February 1, 2013 — April 30, 2013. • September 1, 2013 for the period May 1, 2013 - -,July 31, 2013. • December 1, 2013 for the period .August.l, 2013 -- October 31, 2013. • Marcb 1, 2014 for the period November 1, 2013 —January 31, 2014. 4.3 Failure to Comply with Reporting Requirements. Failure of Grantee to corTrply with any of the reporting requirements in this Agreement may result in the withholding or revocation of a Grant, requirement for Grantee to refund Grant funds dishuesed, arid/or Grantee's .ineligibility for fitture Program £fiords. 4.4 Notice of Failure to Receive County Grant. Grantee shall promptly notify the Grantor of ,my failure to receive or reduction in the amount of the county grant funds required by Texas Administrative Code Title. 4, Part 1, Chapter 1, Subchapter C), Section. 1.953 as reported by Grantee in its application for funds under this Program. Failure of Grantee to receive, or reduction in the amount of, county grant funds i-nay result in the withholding or revocation of a Grant or require Grantee to refund Grant funds disbursed, 4.5 Eligible Meals. The Grant is based on the number: of Eligible Meals served by City of Corpus Christi, Parrs and Recreation Department, Senior Comirtu -ity Service. 1-11igible Meals are calculated by subtracting the meals funded by the 1'exas Department of Aging and Disabilities and /or Area _Agency on Aging, 72,600, from the total number of meals delivered as reported by City of Corpus Christi, Parks and Recreation Depa.rtmxment, Senior. Corrinaunity Service in Nueces County between Septernber 1, 2011 and August 31, 2012, 148,186. 'The Grant is calculated on the remaining number, or 75,586 meals. For purposes of this Grant, any meals that are not Eligible Meals are classified as Ineligible Meals. If an audit or review of the Grant reveals that Grantee has received Grant funds based on .Ineligible Meals, Grantee will be required to repay Grantor the amount of the excess Grant funds received, on terms and conditions as may be set by Grantor. Article 5 Recordkeeping, Access, Inspections, Audits and Investigations 5.1 Access to Records. During the Term of Agreement and for at least. three years after tent- aination of the .Agreement, Grantee shall allow representatives of Grantor acrd /or the State Auditor's Office upon request by such, access to acrd the right to examine the premises, books, accounts, records, files and other papers or property belonging to or ill use by Grantee and pertaioing to the Agreement. Such records shall be maintained by Grantee at a 1 DA - -- I1DM Page 3,)f8 Trade & Business Development -- Grants Office HDM 13 -1100 location that is .readily accessible to Grantor and /or the State Auditor's Office_ Further, Grantor and /or the State Auditor's Office have the authority to monitor Gxrantee's work and snake a visual inspection of any assets purchased or constructed with grant funds. 5.2 Authority to Audit and Investigate. Grantee understands that acceptance of gY:a I funds under the Agreement: acts as acceptance of the authority of the State Auditor's Office, its successor agency, and any representative of the Grantor to conduct an audit or inve"tigation is connection with such funds. Grantee farther agrees to cooperate fully with the State Auditor's Office, its successor or any representative of the Grantor in the conduct of the audit or investigation, .including providing all records requested and ptoviding the State. Auditor or. any representative of the Grantor with access to any information tli(.,,y consider relevant to the investigation or audit. Grantee shell ensure drat the clause concetniirg the authority to audit funds received i rdirectly by any subcontractors used by Grantee and their requirement to cooperate is .included in any subcontracted awards. 5.3 Disallowance of Grant Funds. Grantee understands and agrees that Grantee shall be liable to the Grantor for any costs disallowed as a .result of any audit, investigation or review. Article 6 Use of Grant Funds 6.1 Allowable Expenditures. Allowable expenditures include, but are not limited to, food costs and related preparation and packaging expenses, gasoline, costs for obtaitl:itzg any required food establishnient pernut from the applicable governmental entity or perinitting authority, costs for obtaining an inspection report from a kitchen food sanitation expert, if applicable, and other operational costs, but shall not be used for the purchase of capital assets. Grant funds shall not be used for expenditures that are not made in compliance with any applicable State purchasing laws and regulations. Grantee shall not, under any circumstances, use grant funds for alcoholic beverages, entertainment or charitable or political contributions. If requested by Grantor, Grantee must be able to produce proof of payment (stamped paid invoices or receipts) of all allowable expenditures. 6.2 Misuse of Grant Funds. Grantor may require a full or partial refund of the Grant If (a) Grant funds are ruisused, (b) Grants funds are used for Ineligible Meals; (c) Grant funds are used in an illegal manner, (d) Grant: funds are used for non - allowable expenses, (e) Grantee violates the terms and conditions of this Agreement, or (f) Grantee made any misrepresentations to Grantor in obtaining this Grant. 'Phis provision is not exclusive of other grounds for withholding or recouping of funds or any other rernedy, civil or criminal, which may be available to Grantor. 6.3 No Duplication of Services. Grant funds shall not be used to duplicate services provided to Grantee's clients. Grantee shall have a system in place to prevent the duplication of services to Grantee's cheats. 6.4 Availability of State Funds. This Agreement is subject to the availability of state funds. If such funds become unavailable during the 'feria of Agreeaent and Grantor is unable to obtain sufficient funds, this Agreement shall be reduced or ternu.inated. 6.5 Grantee in "Good Standing." Grantee understands that in order to be eligible for payment from Grantor, Grantee shall be in "good standing" with the Texas Comptroller of Public Accounts. TD,4 —11004 Page 4 of 8 Trade & Business Development - -- Grants Office HDM 13 -1100 Article 7 Term and Termination of the Agreement 7.1 Terin and Termination. 'lie Agreement may be terminated at any time by mutual coarsen. In addition, either party may terminate the - Agreenent, without cause, upon thirty days written notice via .registered or certified email, return receipt requested, to tlae other party. Early teri-nination of the Agreement shall not relieve Grantee froze the reporting requirements contained in .Articles 4, 5 and 6 of this .Agreenaent..if one party tern- linates the Agreement, pursuant to this section, then the effective date. of termination. is 30 days f-oin the elate that the non- terzuinating party receives the notice of termination. 7.2 No Reimbursement Upon Termination. In the event of termination of this Agreement, Grantor shall make no further disbursenrcnt of Grant funds to Grantee beyond those already approved at the tithe of termination, and Grantee specifically waives all rights to any such funds. Article 8 Use and Disposition of Property 8.1 use of Property. During tjie 'Perm of Agreement, any property acquired with Grant funds shall be used in accordance with this Agreement, to accomplish the purposes of the programn. 8.2 Records of Property. Grantee shall maintain appropriate records of goods or property purchased with Grant funds and shall develop a conttol system to ensure adequate- safeguards to prevent loss, damrrage, or theft: of such goods or. property. Article 9 Agreement Modifications 9.1 Amending Agreement. Except as provided in paragraph 9.6 below, this Agreement embodies the entire agreement between the parties, and there are no covenants, agreements, representations, warranties or restrictions between the parties other than those specifically set forth herein. Except as provided in paragraph 9.2 below, no modification or amenchnent to this Agreement is valid unless in writing and signed by the parties. 9.2 Notification of Change in Grantee's Address. Grantee must notify Grantor in writing within 30 days if Grantee's address changes during the Term of Agreement. Failure to submit required notice mnay be grounds for termination of this Agreetent. 9.3 Grantor Request for Amendment. Grantor may amend this Agreement by submitting the requested change to Grantee in writing. Continued performance hereunder shall he deemed acceptance of such.Amendmetit by Grantee. 9.4 Grantee Request for Amendment. Grantee may request an amendment to the Agreement by submitting the requested change, in writing, to Grantor. All requests for an arimendment to the Agreement trust include a summary of Grantee's home - delivered meal services and a statement explainitig the need for the change. TDA - HDM Page S a f8 Trade & Business Development -- Grants Office NDM 13 -IIOQ 9.5 Budgetary Revisions. '.I'he Grantee may make a one -tinie budget revision (not_ affectixig the overall budget amount) without prior approval during the program year, so long as the revision floes not require an increase or decrease in any budget line item over 1.0% of the item's approved budget. All other budget. revisions require prior written approval. The grantee shall request written approval for a budget change by subrnitting a statenxent explaining the need for the change, specifying the anxount, and identifying the expenditure categories affected by the change on a form prescribed by the Grantor. 9.6 Approved Changes Become Part of Agreement. Once approved ill accordance \vith the article, approved changes become a part of the Agreement, superseding all provisions that are inconsistent lierei.n. Article 10 General Terms and Conditions 10.1 Delegation to Third - Party. Grantee is not relieved of its duties and obligations imposed by this Agreement through delegation by G),rantee to a third- party. 10.2 Agreetent Binding. The Agieenxew shall he bitichug on and inure to the benefit of the patties and their officers, administrators, legal representatives, and successors except as otherwise expressly provided herein, Grantee inay not assign or transfer this Agreement without the written consent of Grantor. The parties intend to be legally bound and have executed this Agreement as evidenced by their signatures oil the date indicated below. This Agreement is not effective unless and until it has been signed by both parties. 10.3 Agreement does not Create Debt. Ibis Agreenent shall not be construed as creating any debt on behalf of the State of Texas, and /or Grantor in violation of Article III, Section 49, of the Texas Constitution. In cornphance with Article VIII, Section 6, of the Texas Cotistitution, all obligations of the State of "Texas or Grantor, hereunder are subject to the availability of appropriations and authorization to pay by the 'texas Legislaturc. 10.4 Delivery Methods. Unless specifically provided herein, any notice, tender, or delivery to be given hereunder by any party to another party must be affected by personal delivery it, wilting or by mailing the same by registered or certified alail, return receipt requested. All notices shall be addressed to the parties at the address stated in the Agreement tithless a change of address has been given in the manner provided for in this paragraph. 10.5 Aiithotized Representative. Each person signing expressly represents that lie of she .is duly authorized to do so and to bind the party on whose behalf they are signing. All legal documents prepared for Grantee's signattire must be executed by an individual with the authority to legally bind Grantee. 10.6 Indemnification. Grantee shall indemnify and hold liartxhless Grantor, its agents and employees, from any and all claims, demands, and causes of action arising from or related to Grantee's performance under this Agreement, including reasonable attorneys' fees incurred in defending or settling any such claims to the extent allowed by law. 10.7 Grantee Not Employee of Grantor. Grantee, its employees, contractors, and /or: subcontractors shall not present themselves as or be construed as employees or agents of Grantor. Neither Granteee nor its employees have in employer - employee relationship with Grantor. TDA — IIDAI Page 6 of 8 Trade & Business Develrgpsjent Grants (?ffiee IIDM --13 -1100 10.8 Representations and Warranties of Grantee. Grantee represents acid warrants that: it has the full right and authority to enter into the Agreement and to Bestow on Grantor the rights and privileges set forth in the Agr_eernent; it has obtained all necessary apprc)va.ls prior to execution of the Agreement; it is in good standing with the "Texas Comptroller c> f Public Accounts, and in all other jurisdictions in which it is required to be so qualified for performance of the Agreemment; and it has paid all necessaty fees, and it has obtained all necessary certifications, registrations, approvals and licenses necessary to perform the Agrecinen t. 10.9- Applicable Law. The Agreement shall be governed by and construed in accordalice with the laws of the State of Texas. Exclusive venne shall lie in the District Courts of Travis County, Texas. 10.10 Headings. Captions and headings of the sections or paragraphs of the .Agreement are for convenience a.nd reference only and shall not affect; modify or amplify the provision.,' of the Agreement, not shall they be employed to interpret or aid in the constroction of the Agreement. 10.11 Seve:rability. If any part of the A.geect exit is declared by a court of competent jurisdiction to be .invalid or unenforceable, such portion shall be deemed severed horn the Agr-eeinent and the remaining part shall remain in frill force and effect, and the parties shall promptly negotiate to replace invalid or unenforceable provisions that are essential parts of the Agreement. 10.12 Waiver. A. waiver by Grantor of any provision hereunder shall not operate as a waiver of any other provision, or continuing waiver of the same ptovis.iotn in the future. 10.13 Construction of Agreement. Both parties hereby agree that they participated in the creation of this Agreement, and the terms hereof are a product of the negotiation between the parties. In the event there is a dispute regarding the rucarung of any provision of this Agreement, no provision shall be construed in favor of or against any party's position oil the grounds that said Party was the drafter of this Agreement. 10.14 Exhibits. The following instruments are incorporated into this .Agreement as attachments; • Attachment A — Grant Budget • Attachment B --- W -9 1 ^ornr 10.15 Uniform Grant Management Standards (UGMS). In accordance with Texas Government Code 4783.007, this Agreement shall comply in all respects with the Uniform Grant Management Standards (UGMS). In the case of any conflicts between UGMS and this .Agreement, the UGMS shall control. TDA — HIM 1'age 7 of 3 Trade & Business Development Grants Qf m HDM -13-1100 Article 11 Texas Public Izxl'ctnnation Act Notice All infor:inatiutr provided by Grantee pursuant to the .Agrcexirmt, inchrding infomiation atr.cl 111atc:rrial referred to in paa-agraph 5.1 of the Agterrrrelit, .is s lbjeet. t0 the Texas Piibli.c hifottnatioir Act, ' I-exas Governmoit Code, Chaptex 552, find may be sijbject to disclosure to the 1rubhc_ 'I. his Agrectwut is (Necuted by the. forties ift their Capacities as stated below. Accepted wid -Agreed: Grauto r: Texas Departmetrt of A ticultrite P,O, Box 1284 -7 /1tistiir, Texas 78711 Datc: Brew 1 eButy, Deputy Cotnirrissiotict Grantee City of Corpus Christi, Paelts and Recreation Depat-trrrew, Senior (,or,rrYZtimity Service 1201 Leopard St. Corpus Oidsti, Texas 78401 Date: Authd-ired OfficiM Michael Morris, Director, Park and Recreation Department 11.611ted .Name and 'title IDA - HDA4 Page 8 01,8 Trade & Busuresv Development -- G•rm a 0jrIce 71I)M 13 -1100 Form j social security number Request for Taxpayer GKre Form to the (Rev. December2011) Identification Number and Certification requester. Do not oapartment of the Treasury Note. If the account is in more than one name, see the chart on page h for guidelines on whose send to the IRS. internal Revenue Service Name (as shown on your income tax return) City of Corpus Christi - Parks & Recreation Department/Senior Community Services Division N Business name /disregarded entity dame, if different from above N Check appropriate box for federal tax classification: c' ❑ Individual /sole proprietor ❑ C Corporation ❑ S Corporation ❑ Partnership ❑ TrusUeslate G O P= b Exempt payee L ❑ Limited liability company. Enter the tax classification (C =C corporation, S =S corporation, parinership) N rt' C G ❑J Other (see instructions) 9- Municipality >E Address (number, street, and apt. or suite no.) Requester's narne and address (optional) 1201 Leopard Street City, state, and ZIP code n Corpus Christi, TX 78401 List account number(s) here (optional) Enter your TIN in the appropriate box. The TIN provided must match the name given on the "Name" line j social security number avoid backup withholding. For individuals, this is your social security number n page However, fora resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other T entities, it is your employer identification number (EIN). If you do not have a number, see Now to get a TIN on page 3. Note. If the account is in more than one name, see the chart on page h for guidelines on whose Employer identification number number to enter. [� a MUMUOUMMMIr Certif ication Under penalties of perjury, I certify that: The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to mo), and 2. 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that 1 aryl subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. 1 am a U.S. citizen or other U.S. person (defined below). Certification Instructions. You must cross out item 2 above it you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured properly, cancellation of debt, contributions to an individual retirement arrangement (iRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions on page 4. sign Signature of � �� I Here U.S, person ® .1.lfl. J Date ® General InstructionS t Section references are to the Internal Revenue Code unless otherwise noted. Purpose of Form A person who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) to report, for example, income paid to you, real estate transactions, mortgage interest you paid, acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA. Use Form W -9 only if you are a U.S. person (including a resident alien), to provide your correct TIN to the person requesting it (the requester) and, when applicable, to: 1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued), 2. Certify that you are not subject to backup withholding, or 3. Claim exemption from backup withholding it you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business Note. If a requester gives you a form other than Form W -9 to request your TIN, you must use the requester's form it it is substantially similar to this Form W -9. Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are: An individual who is a U.S. citizen or U.S. resident alien, e A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States, a An estate (other than a foreign estate), or e A domestic trust (as defined in Regulations section 301.7701 -7). Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax on any foreign partners' share of income from such business. Further, in certain cases where a Form W -9 has not been received, a partnership is required to presume that a partner is a foreign person, and pay the withholding tax, Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or busyness in the United States, provide Form W -9 to the partnership to establish your U.S. status and avoid withholding on your share of partnership income. is not subject to the withholding tax on foreign partners' share of effectively connected income. Cat. No. 10231X Formes -9 (Rev. 12 -2611) A l y.j.fic�i(1ViIE N.[ .A HOME DELIVERED MEAT, GRANT BUDGET Nime ofgrantce: City o(C:otpus Cluisti, Parks and Recreation Department, Senior Commutkity Service'JDA Application No.. IIDM -13 -1100 Calftaty it) tivilic]1 weals are pwvided: T ucces Total ls-am amouiw $140,220.79 COM LI;TI :C ,I1 ?TABLE RELOW, Please estimate, to the belt of your ability, [lowTex.ttis Feeding'I'exas: Home Delivered Meal Grafit Prograto fuacis will be expended for your orgataizatiotl d €tring the gratlt period. Xax crxi�xtlir� C',�r� ox` -„ - ; .Lsti�z��nt�.tl.rl4tzac�xrrxt l�ctsonflcl 67,793.43 rood /Meals 67,507.36 I dl�ihn�ent � .� Bililding Oc(:clpanc.y TrattlsPo alloU Office Supplies and Servl(.(:s fj Other: Please shccafy exactly a. Home Delivered Meal Software 5,000,00 b, "Total GrantAtnoltttt $140,220.79 l uriog the Griot Year, (.Aantec n3ilst dcf7 onstr -ae thtit'1DA grant fun(k were used to directly Slippie117(:11t of extend existing meal servic €s to homebound persons that are elderly and /or have a disability. By signing, l certify that the information c otered on this form is tctte acid correct to the best of my knowledge. Signature: . .......... .._ .. �s . YA -- r1»M IInM -13 -1100 7'rmle & Business Development -- Grants O%J)ee Allac'1177 ent A - 131111get 0 AGENDA MEMORANDUM First Reading for the City Council Meeting of February 12, 2012 852 Second Reading for the City Council Meeting of February 26, 2012 DATE: January 21, 2013 TO: Ronald L. Olson, City Manager FROM: Michael Morris, Director MichaelMo@cctexas.com 361- 826 -3494 Establishment of Tree Advisory Committee and provision for diseased trees CAPTION: Ordinance amending the City Code of Ordinances to establish the Tree Advisory Committee and include provision to address diseased trees. PURPOSE: In Spring 2012, the City Council directed the Parks and Recreation Department to work with the local 12,000 Trees for 2012 group to prepare an application for the Tree City USA designation. The proposed ordinance will help the city meet two of the standards as it establishes a Tree Board to be appointed by City Council and list minimum standards for tree planting and management on public property. BACKGROUND AND FINDINGS: Tree City USA, sponsored by The Arbor Day Foundation in cooperation with the USDA Forest Service and the National Association of State Foresters, provides direction, technical assistance, public attention, and national recognition for urban and community forestry programs in thousands of towns and cities. In order gain the Tree City USA designation, a community must meet four established standards: 1. Have a tree board or urban forestry department 2. Approve a tree care ordinance 3. Observe Arbor Day via events and proclamation 4. Have a community forestry program with annual budget of at least $2 per capita The proposed ordinance will help the city meet two of the standards as it establishes a Tree Board to be appointed by City Council and list minimum standards for tree planting and management on public property. The Tree Board will be responsible for working with city staff to develop a detailed tree planting and management plan and reviewing the plan annually. The Parks and Recreation Department has been observing Arbor Day on an annual basis for years through tree planting events, tree trimming workshops and coordinating a City Council proclamation to recognize the day. AEP's tree trimming program coupled with the Department's tree planting and care program meet the final standard for the Tree City USA standard. ALTERNATIVES: Do not approve the ordinance and end the pursuit of the Tree City USA designation OTHER CONSIDERATIONS: Not applicable. CONFORMITY TO CITY POLICY: City Council must approve all changes to the City Code of Ordinance EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Legal; The Parks and Recreation Advisory Commission approved the proposed ordinance on October 10, 2012. The Planning Commission approved the proposed ordinance on December 19, 2012. FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital x Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: N/A RECOMMENDATION: Staff recommends the approval of the ordinance LIST OF SUPPORTING DOCUMENTS: Ordinance Copy of Tree City USA application form Page 1 of 7 Ordinance amending the City Code of Ordinances to establish the Tree Advisory Committee and include provisions to address diseased trees. Whereas, trees are a valuable asset that provide shade, beauty and wildlife habitat; while improving the quality of air, soil and waters around them; increasing property values; and making the City more attractive to visitors and potential new citizens; Whereas, the City desires to receive designation as Tree City USA; Whereas, the four standards of Tree City USA are: 1) a tree board or department; 2) a tree care ordinance, 3) a community forestry program with an annual budget of at least $2 per capita; and 4) an Arbor Day observance and proclamation; Whereas, pursuant to standards of Tree City USA, the tree ordinance must designate the establishment of a tree board or a forestry department and give them the responsibility for writing and implementing an annual community forestry work plan; Whereas, the City Council desires to establish a tree advisory committee to assist the city in its management and care of trees on City property Now, therefore, be it Ordained by the City Council of the City of Corpus Christi, Texas: Section 1. That Chapter 2 of the City Code of Ordinances, Article IV, Miscellaneous Boards, Commissions and Committees, is amended to establish Tree Advisory Committee, to read as follows: " Section 2 -315. Creation and Establishment of Tree Advisory Committee, The City Council hereby establishes a Tree Advisory Committee for the City of Corpus Christi, Texas, which shall consist of five (5) members to be approved by the Citv Council. Members of the Committee shall serve without comaensation. Membership of the Committee shall consist of one (1) Landscape Architect, one (1) Certified Arborist; one (1) representative from electric utility provider AEP, and two (2) At -Large community members. Page 2 of 7 Committee Liaisons shall be a representative from the Parks and Recreation Advisory Committee and also from the Planning Commission. The Committee Liaisons shall have no voting power. Staff Liaisons to the Committee shall be an employee from each of the following City departments: Parks and Recreation, Planning, Development Services, Traffic Engineering, Engineering, and Code Enforcement." "Section 2 -316. Term of Office; Chair and Vice - Chair, and Quorum requirements. Terms of office for the Tree Advisory Committee members shall be two years. The Committee shall choose a Chair and Vice - Chair, upon approval of the majority of the Committee members present and voting. The Committee shall comply with the Texas Open Meetings Act. A majority of the Committee members shall be a quorum for the transaction of meetings." Section 2 -317. Duties and Responsibilities. A. Development of City's Public Tree Plan. 1) It shall be the responsibility of the Tree Advisory Committee to review and recommend a formal written plan to the City Council for the care, preservation, pruning, planting, replanting, removal or disposition of Public Trees. The plan must not conflict with the Parks and Recreation Master Plans. The Committee shall provide a recommendation to Planning Commission on any proposed amendments to the Unified Development Code pertaining to planting and landscaping requirements. 2) A Public Tree is defined for purposes of this Ordinance as trees, shrubs, bushes and all other woody vegetation planted in land owned by the City of Corpus Christi, Texas. 3) The Committee shall work with the staff of the Parks and Recreation Department to develop a recommended list of tree species for Public Trees to be planted on lands owned by the City. The list shall be broken into categories of small, medium, and large trees, such terms to be defined in the Citv's Public Tree Plan. Page 3of7 4) The City's Public Tree Plan shall provide for the following: a. No Public Tree may be closer than the following distances from the curb or sidewalk: small trees, 2 feet; medium trees, 3 feet, and large trees, 4 feet. b. No Public Tree shall be planted closer than 20 feet to any street corner. measured from the aoint of curbs and curblines of the nearest intersection. c. No Public Tree shall be planted closer than 10 feet to any fire hydrant. d. The City shall retain all rights to plant, prune, maintain, and remove Public Trees, plants and shrubs on City owned property. e. The Public Tree Plan shall incoraorate all aaalicable Citv ordinances regarding tree care and maintenance, including but not limited to the provisions of Section 53 -264 which requires that every owner of any tree overhanging any street or right -of -way within the city shall prune the branches in accordance with Section 53 -264 so that such branches shall not obstruct the light from any street lamp or obstruct the view of any street intersection and so that there shall be a clearance space of at least seven feet (7') above the surface of the sidewalk and at least thirteen (13) feet above the surface of the street. f. The plan shall address unnecessary topping of Public Trees. Trees severely damaged by storms or other causes or certain trees under utility wires and other obstructions where alternative pruning practices are impractical may be exempt from the plan at the determination of the Tree Advisory Committee. 5) The written plan shall be presented to the City Council for review and consideration for approval. Upon approval by the City Council, such plan shall constitute the official Public Tree Plan for the City of Corpus Christi. 6) The Tree Advisory Committee shall periodically review such approved plan for recommended updates to the City Council. Upon City Council approval, the Committee shall work with the Parks and Recreation Department to implement the plan. Page 4 of 7 B. Other duties. 1) The Committee may recommend to the Parks Director the removal of any Public Tree or part thereof which is damaged by disease, storm or which is in an unsafe condition. 2) The City Council may request the Tree Advisory Committee to consider, investigate, make findings, report or recommend upon any special matter of question pertinent to the City Public Tree plan. 3) The Tree Advisory Committee shall provide a recommendation to Planning Commission on any proposed amendments to the Unified Development Code pertaining to tree planting and landscaping requirements. Section 2. That City Code of Ordinances, Chapter 23, Health and Sanitation, Article III, Unhealthful or Dangerous Conditions, is amended to add provisions regarding diseased trees, to read as follows: "Sec. 23-70. - Tali weeds, brush, and diseased trees prohibited on lots. (a)No person who owns or occupies any lot or parcel of land in the city may permit or allow weeds or brush twelve (12) inches or higher to grow on the lot or parcel of land. No person who owns or occupies any lot or parcel of land in the city may permit or allow any diseased tree to remain on the lot or parcel of land. For purposes of this chapter, a diseased tree means a tree or plant infected by a lethal disease communicable to another tree or plant as determined by a certified arborist. (b) Upon conviction of a violation under this section, the person must be fined an amount not less than one hundred dollars ($100.00) and not more than two thousand dollars ($2,000.00) per violation; provided, however, in the event a person has once previously been convicted under section 23 -70 of this article, the person must be fined an amount not less than two hundred dollars ($200.00), and must be fined not less than three hundred dollars ($300.00) for a third conviction and for each conviction thereafter." "Sec. 23-72. - Work or improvements y municipality. (a) If the owner of property in the municipality does not comply with a municipal ordinance or requirement relating to stagnant water, filth, Page 5of7 carrion, weeds, rubbish, brush, diseased trees, and other objectionable, unsightly, unwholesome, or unsanitary matter, or conditions under this chapter within seven (7) days of notice of a violation, the director of public health, the director of housing and community development, or the director of solid waste services, or their designees, may: (1) Do the work or make the improvements required; and (2) Pay for the work done or improvements made and charge the expenses to the owner of the property. (b) The notice must be given: (1) Personally to the owner in writing; (2) By letter addressed to the owner at the owner's address as recorded in the records of the appraisal district in which the property is located; or (3) If personal service cannot be obtained, notice to the property owner must be: a. By publication at least once; b. By posting the notice on or near the front door of each building on the property to which the violation relates; or c. By posting the notice on a placard attached to a stake driven into the ground on the property to which the violation relates. (c)lf the director of public health, the director of housing and community development, or the director of solid waste services, or their designees, mails a notice to a property owner in accordance with subsection (b)(2) of this section and the United States Postal Service returns the notice as "refused" or "unclaimed," the validity of the notice is not affected and the notice is considered delivered. (d)ln a notice provided under this section, the director of public health, the director of housing and community development, or the director of solid waste services, or their designees, may inform the owner by regular mail and a posting on the property, or by personally delivering the notice, that if the owner commits another violation of the same kind or nature that poses a danger to the public health and safety on or before the first anniversary of the date of the notice, the director of public health, the director of housing and community development, or the director of solid waste services, or their designees, may correct the violation, without further notice, at the owner's expense and assess the expense against the property. If a violation covered by a notice under this subsection occurs Page 6 of 7 within the one -year period, and the director of public health, the director of housing and community development, or the director of solid waste services, or their designees, has not been informed in writing by the owner of an ownership change, then the municipality without notice may take any action permitted by subsections (a)(1) and (2) and assess its expenses as provided by section 23 -73." Section 3. Inapplicability to Electric Franchisee Nothing in this Ordinance shall be applied or interpreted to reduce or alter any of the rights granted to AEP Texas Central Company or their assignees in Ordinance No. 028022. Section 4. Effective Date. This Ordinance takes effect on date of publication after final City Council approval. Page 7 of 7 That the foregoing ordinance was read for the first time and passed to its second reading on this the day of 7 , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb That the foregoing ordinance was read for the second time and passed finally on this the day of , by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb PASSED AND APPROVED, this the day of , ATTEST: Armando Chapa City Secretary Nelda Martinez Mayor TREE WY USA Mail completed application with requested attachments to your state forester no later than December 3 I. The TREE CITY USA award is in recognition of work completed by the community during the calendar year. Please provide information for the year ending. (Some states require information in addition to the requested on this application. Check with your state foresters.) rgw� f (Title - Mayor or other city official) I" herewith make application for this community to be officially recognized and designated as a Tree City USX For , having achieved the standards set forth by The National Arbor Day Foundation as noted below. (year) Standard 1: A Tree Board or Department List date of establishment of board, board members, and meeting dates for the past year, or name of city department and manager. Standard 2: A Community Tree Ordinanki Date or4liaxce esta'ills!ted Attach ordinance. Standard 3-. A Community Forestry Program with an Annual Budget of at Least $2 Per Capita Community population ................ ---- ... —.— ............ ........ --- ...... Attach annual work plan outlining the work earned out during the past year. Attach breakdown of community forestry expenditures. Standard 4: An Arbor Day Observance and Proclamation Date observance was held Attach program of activities and/or news coverage. Attach Arbor Day proclamation. IWIM 1 Title Date City Forestry Contact: Name: Title: Address: City, State, Zip: Phone Email: NOTE: Application will not be processed without attachments. 0011103WOT M14 V - MR-307709='i (Community) the application and have concluded that, based on the information contained herein, said community is eligible to be recognized and designated as a Tree City USA, for the calendar year, having in my opinion met the four standards of achievement in urban forestry. Signed State Forester Person in State Forester's Office who should receive recognition material: Name: UPS Address: Title: City, State, Zip: Agency: PH #: Email: W Ordinance amending the Code of Ordinances, Chapter 14, "Development Services," Article II, "City of Corpus Christi Technical Construction Codes," Division 8, "Residential Code," Section 14 -291, "Residential construction code," by creating new subsection (6.1) pertaining to Section R302.1 of the International Residential Code for One- and Two - Family Dwellings, which relates to exterior walls and fire - resistant construction, in order to establish new exception language and include modifications to the applicable table; providing for severance, penalties, publication and an effective date. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The Code of Ordinances, Chapter 14, "Development Services," Article II, "City of Corpus Christi Technical Construction Codes," Division 8, "Residential Code," Section 14 -291, "Residential construction code," is amended by creating new sub- section (6.1) pertaining to Section R302.1 of the International Residential Code for One - and Two - Family Dwellings, which relates to exterior walls and fire - resistant construction, in order to establish new exception language and include modifications to the applicable table, to read as follows: "Sec. 14 -291. Residential construction code. With the following additions, deletions, and revisions, the International Residential Code for One- and Two - Family Dwellings, 2009 Edition (Including Appendix O, Gray Water Recycling Systems (see International Residential Code Section R102.5 2009 Edition)), as published by the international Code Council, a copy of which, authenticated by the signatures of the Mayor and City Secretary of the City of Corpus Christi, made public record by this Section, and on file in the City Secretary's office, is incorporated by reference and adopted as the Residential Construction Code for the City of Corpus Christi: "(6.1) R302.1 Exterior walls. Construction, projections, openings and penetrations of exterior walls of dwellings and accessory buildings shall comply with Table R302.1. "Exceptions: fig "6. Proiections may extend bevond the exterior wall on zero lot line construction. Projections shall be constructed from non - combustible material on the underside and may allow manufactured perforated soffit material installed for attic ventilation. The soffit may project a maximum of 24 inches, excluding noncombustible gutters, over the adjacent property line. The projection into the adjacent Property must have a private easement between owners, and must be recorded on the plat." "TABLE R302.1 EXTERIOR WALLS" EXTERIOR WALL ELEMENT MINIMUM FIRE- RESISTANCE RATING MINIMUM FIRE SEPARATION DISTANCE Walls (Fire- resistance rated) 1 hour - tested in accordance <5 feet with ASTM E 119 or UL 263 with exposure from both sides (Not fire - resistance rated 1 0 hours >_5 feet (Fire- resistance rated) 1 hour on the underside z 2 feet to -54eet Projections (Not fire - resistance rated 1 0 hours 3 feet Not allowed N/A <3 feet Opening in Walls 25% maximum of wall 0 hours 3 feet area Unlimited 0 hours 5 feet Penetrations All Comply with Section R317.3 <5 feet 5 feet None required "For SI: 1 foot = 304.8 mm. N/A = Not Applicable." SECTION 2. If, for any reason, any section, paragraph, subdivision, sentence, clause, phrase, word, or provision of this ordinance is held to be invalid or unconstitutional by final judgment of a court of competent jurisdiction, such judgment shall not affect any other section, paragraph, subdivision, sentence, clause, phrase, word, or provision of this ordinance, for it is the definite intent of this City Council that every section, paragraph, subdivision, sentence, clause, phrase, word, or provision of this ordinance be given full force and effect for its purpose. SECTION 3. A violation of this ordinance or the requirements implemented under this ordinance constitutes an offense punishable under Sections 1 -6, 1 -6.1, and any other applicable provisions of The Code of Ordinances, City of Corpus Christi. Unless otherwise specifically stated within the provisions of this ordinance or The Code of Ordinances, City of Corpus Christi, any violation of this ordinance or requirements implemented under this ordinance punishable by a fine that exceeds the amount authorized by Section 12.23 of the Texas Penal Code shall require a culpable mental state of "criminal negligence." SECTION 4. 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. IRC Text Amdmt Fire Sep vFinal Page 2 of 3 SECTION 5. This ordinance and its requirements take effect on and after April 15, 2013. The foregoing ordinance was read for the first time and passed to its second reading on this the day of , 20137 by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb The foregoing ordinance was read for the second time and passed finally on this the day of , 20137 by the following vote: Nelda Martinez Chad Magill Kelley Allen Colleen McIntyre Rudy Garza Lillian Riojas Priscilla Leal Mark Scott David Loeb PASSED AND APPROVED this the ATTEST: Armando Chapa City Secretary day of , 2013. Nelda Martinez Mayor IRC Text Amdmt Fire Sep vFinal Page 3 of 3 Ga O� AGENDA MEMORANDUM NoP ©gyp EO Future Item for the City Council Meeting of February 12, 2013 1852 Action Item for the City Council Meeting of February 26, 2013 DATE: January 21, 2012 TO: 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 Debbie Marroquin, P.E., DebbieM @cctexas.com (361) 855 -6924 Director of Gas Operations Michael Armstrong, Director of Municipal Information Systems MichaelAr@cctexas.com (361) 826 -3740 Approval of Contract for Professional Services Padre Island Water Supply Study CAPTION: Motion authorizing the City Manager, for Professional Services with Urban $182,976.00, for a total restated fee Supply Study. PURPOSE: or designee, to execute Amendment No. 2 to the Contract Engineering of Corpus Christi, Texas in the amount of not to exceed $597,216.00, for the Padre Island Water The purpose of this Agenda Item is to execute the amended contract for the Padre Island Water Supply Study so professional services may continue. BACKGROUND AND FINDINGS: The existing water feed to Padre Island is a 24 -inch ductile iron pipe which has been in service for more than thirty years. This project involves construction of a new 18 -inch diameter water transmission main, eight -inch diameter natural gas line, and a four -inch diameter Municipal Information System (MIS) conduit from Laguna Shores Boulevard to Padre Island. The original scope of this project did not include a gas line or MIS line. Subsequent discussions with the Gas and MIS departments, during the initial design phase, led to the conclusion that it would be more cost effective to have these two lines permitted and constructed simultaneously with the water line. Adding these lines at a later date would warrant a separate and more costly alignment which would trigger additional permitting requirements. The attached amendment will compensate the consultant for required revisions and additions to the initial scope of services. The required revisions and additions result in an extended design period for a better, multi - operational and integrated project. The proposed consultant contract amendment provides Contract Documents which include the new alignments, permit modification and services during construction of the eight -inch gas main and the four -inch MIS conduit, meetings with City staff, assisting the City in bidding the project, providing construction administration, preparing Texas General Land Office Miscellaneous Easement applications, and assisting the City with public outreach meetings. ALTERNATIVES: 1. Award the Contract Amendment No. 2 for Professional Services to Urban Engineering as proposed. 2. Do not award the Contract Amendment No. 2 for Professional Services with Urban Engineering 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, Gas Department, MIS Department FINANCIAL IMPACT: ❑ Ooeratina ❑ Revenue FICaoital ❑ Not applicable Fund(s): Water CIP #15, Gas CIP #4, MIS Operating Project to Fiscal Year 2012 -2013 Date Expenditures Current Year Future Years TOTALS (CIP only) Line Item Budget $423,700.00 $4,926,381.00 $5,320,000.00 $10,670,081.00 Encumbered / Expended Amount $423,700.00 $70,000.00 $493,700.00 This Item $182,976.00 $182,976.00 Future Anticipated Expenditures This Project $4,673,405.00 $5,118,135.00 $9,791,540.00 BALANCE 1 $0.001 $0.00 $201,865.00 $201,865.00 Fund(s): Water CIP #15, Gas CIP #4, MIS Operating RECOMMENDATION: City Staff recommends the approval of the Amendment No. 2 to the Contract for Professional Services with Urban Engineering of Corpus Christi, Texas in the amount of $182,976.00, for a total restated fee not to exceed $597,216.00, for the Padre Island Water Supply Study. LIST OF SUPPORTING DOCUMENTS: Project Budget Location Map Contract Project Schedule Presentation PROJECT SCHEDULE CITY OF CORPUS CHRISTI, TEXAS PADRE ISLAND WATER SUPPLY STUDY Date Activity August 1, 2011 Begin Study November 18, 2011 Begin Preliminary Phase June 20, 2012 Prepare Waterline Pre -Final Submittal October 3, 2012 60% Waterline Design Submittal October 18, 2012 Pre -Final Waterline Design Meeting April 19, 2013 Pre -Final Gas & MIS Line Design Meeting June 3, 2013 100% Final Submittal July 15, 2013 Advertise for Bids July 24, 2013 Pre -Bid Conference August 7, 2013 Contract Award October 3, 2013 Begin Construction April 3, 2014 Complete Construction PROJECT BUDGET ESTIMATE PADRE ISLAND WATER SUPPLY STUDY Future Item for the City Council Meeting of February 12, 2013 Action Item for the City Council Meeting of February 26, 2013 FUNDS AVAILABLE: Water CIP ......................................................................... ............................... $8,104,500.00 GasCIP ........................................................................... ............................... $2,500,000.00 MISOperating ................................................................... ............................... $65,581.00 TOTAL FUNDS AVAILABLE ................................................ ............................... $10,670,081.00 FUNDS REQUIRED: Construction ( Estimate) ....................................................... ............................... 8,100,000.00 Contingencies ( 10%) ........................................................... ............................... 810,000.00 Consultant Fees: Consultant Design (Urban Engineering) * ................................ ............................... 597,216.00 Geotechnical Testing (Kleinfelder Central, Inc.)** ....................... ............................... 70,000.00 Reimbursements: Contract Administration (Contract Preparation/ Award/ Admin) ...... ............................... 182,250.00 Engineering Services (Project Mgt /Constr Mgt /Traffic Mgt) .......... ............................... 283,500.00 Construction Observation ..................................................... ............................... 283,500.00 Finance............................................................................ ............................... 101,250.00 Misc. (Printing, Advertising, etc.) ............................................ ............................... 40,500.00 TOTAL............................................................................. ............................... $10,468,216.00 ESTIMATED PROJECT BUDGET BALANCE .......................... ............................... $201,865.00 *Consultant Design Contract awarded on June 21, 2011 to Urban Engineering by Motion No. 2011 -134. CITY OF CORPUS CHRISTI AMENDMENT NO. 2 CONTRACT FOR PROFESSIONAL SERVICES The City of Corpus Christi, Texas hereinafter called "CITY", and Urban Engineering, hereinafter called "ENGINEER," agree to the following amendment to the Contract for Professional Services for Padre Island Water Supply Study (Project No E10172), as authorized and amended by: Original A/E Agreement November 5, 2010 Administrative Approval $49,870.00 Amendment No. I June 21, 2011 Motion M2011-134 $364,370.00 dr- EXHIBIT "A", SECTION 1. SCOPE OF SERVICES shall be amended as specified in the attach A. EXHIBIT "A", SECTION 3. FEES shall be amended as specified in the attached Amendment No. 2 Exhibit "A" Summary of Fees, for a revised fee not to exceed 1182,976.00 (One Hundred Eighty -Two Thousand Nine Hundred Seventy-Six Dollars and Zero Cents), for a total restated fee not to exceed $597,216.00 (Five Hundred Ninety-Seven Thousand Two Hundred Sixteen Dollars and Zero Cents). Monthly invoices shall be submitted in accordance with Exhibit "B". All other terms and conditions of the November 5, 2010 contract and amendments between the City and Engineer will remain in full force and effect. Oscar R. Martinez, Date Assistant City Manager iIAMOMIN, F4,11 441 N k 19 14 1 AMEND. NO. 2 Page l_ of 2 K ENGINEERING DATAEXCHANGE1JENNIFERNWATER4F-10172 PADRE ISLAND WATER SUPPLY STUDYIPROFESSIONAL SERMMAMENDMENT NO 2iCONTRAGT.DOCX Office of a!' Date i Budget u AMEND. NO.. 2 Page 2 of 2 K (ENGINEERING DATAEXCHANGEiJENNIFERIWATER1E10172 PADRE ISLAND WATER SUPPLY STUDYIPROFESSIONAL SERVICES"ENDIVIIENT NO.21CONTRACT.DOCX Exhibit "A" Padre Island Water Supply Study (Project No.: E10172) Amendment No. 2 The following is the proposed scope of Basic Services to be added to the existing contract with the City of Corpus Christi, Basic Services (8 -inch Gas Transmission Main and 4 -inch Conduit) Design Services The A/E will prepare plan and profile sheets for construction of an 8 -inch gas transmission main and 4 -inch MIS conduit. The P & P sheets will be included in the bid package with the water transmission main P & P sheets. The plan and profile sheets will be in addition to the sheets already included in the bid package but will utilize the survey and utility information obtained for the water transmission main. The design services will also include specifications for installation of the 4 -inch conduit. (Note: Specifications for the 8 -inch gas transmission main will be furnished by the City of Corpus Christi. These specifications will include but not be limited to the following; pipe material, pipe diameter, pipe wall thickness, pipe coating, pipe backfill and handling, corrosion protection, welding procedures, valves and pressure testing.) Bid Phase Services The A/E will assist the COCC in bidding the 8 -inch gas transmission main and 4- inch MIS conduit, including attending the pre -bid meeting, answering RFI's, attending the bid opening, and recommending award of the contract. Construction Phase Services The A/E will assist the COCC during the construction phase by attending the pre - construction meeting, answering RFI, reviewing submittals, conducting the final walk through, and preparing the record drawings. The following is the proposed scope of Additional Services to be added to the existing contract with the City of Corpus Christi, Additional Services USCOE Permit Additional width is required to accommodate the 8 -inch gas transmission main along the proposed construction alignment. This requirement increases the footprint that will be disturbed within the USCOE jurisdictional boundary. This M increased footprint requires additional coordination efforts to obtain the USCOE permit to work within the jurisdictional boundary. TxDOT Permit Additional width is required to accommodate the 8 -inch gas transmission main along the proposed construction alignment. This requirement increases the footprint that will be disturbed within the jurisdictional boundary. This increase requires additional coordination efforts with TxDOT to obtain a permit in their ROW. Wetland Delineation Additional width is required to accommodate the 8 -inch gas transmission main along the proposed construction alignment. This requirement increases the footprint that will be disturbed within the jurisdictional boundary. This increase requires additional wetland assessment efforts and preliminary design conceptualization in order to obtain the USCOE permit to work within the jurisdictional boundary. TGLO Miscellaneous Easement (ME) The A/E will prepare the ME applications and submit them to the TGLO for their review and approval. A total of three (3) ME applications are required along the alignment at the following locations; from Flour Bluff to the Humble Channel, at the Humble Channel and at the Gulf Inter - coastal Water Way. The scope covers preparation of the lease application package, coordination with the TGLO to get the easement granted, field survey of State submerged land boundary, survey exhibits, filing the information with Nueces County, deliverable to TGLO and follow up with the TGLO. Public Out -Reach Meeting The A/E will assist the City in preparing for and conducting two (2) public out- reach meetings. The A/E will prepare mountable exhibits showing the proposed improvements (mounting to be completed by the City) and submit to the City for review. The A/E will also assist the City in preparing the following public meeting documents, Attention Form, Meeting Agenda, Project Fact Sheet, Frequently Asked Questions and Citizens Comments Sheet. AMEND. NO.2 EXHIBIT "A" Page 2 OF 4 PROJECT SCHEDULE CITY OF CORPUS CHRISTI, TEXAS PADRE ISLAND WATER SUPPLY STUDY Date Activity August 1, 2011 Begin Study November 18, 2011 Begin Preliminary Phase June 20, 2012 Prepare Waterline Pre -Final Submittal October 3, 2012 60% Waterline Design Submittal October 18, 2012 Pre -Final Waterline Design Meeting April 19, 2013 Pre -Final Gas & MIS Line Design Meeting June 3, 2013 100% Final Submittal July 15, 2013 Advertise for Bids July 24, 2013 Pre -Bid Conference August 7, 2013 Contract Award October 3, 2013 Begin Construction April 3, 2014 Complete Construction L . I IT "A" 3OF4 'G r N N W r` W o t; r W O 3Za a aA'i g lC0 .� � a � a 0 0 0 o a A A 0 0 0 0 0 0 a 0 0 0 0 0 0 0 f` CO O O O r co r CO LD Ln r rINI Ir 0l6l0) olololC5 la 0 0 0 0 0 O 0 0 0 0 0 0 0 o C: o 6 Cs Q 0 O O M O N A r r Ln P' Ln O O O CA O r s F- 0 . � N N O 0 . 0 . 0 . 0 . 0 . O . O . V 0 0 0 o a A A 0 0 0 0 0 0 a 0 0 0 0 0 0 0 f` CO O O O r co r CO LD Ln r rINI Ir 0l6l0) olololC5 la MNO.2 T `LA" OF4 O O O O O O 0 0 0 0 0 0 0 0 0 0 0 O O o 0 A O O O O O O 0 0 . 0 0 . 0 . 0 . 0 . 0 . 0 . 0 . 0 . O . O . O . O . O . a oa O A . . O . '00 . O a 0 0 'o 0 0 0 0 a0 O Oa ((D N LO Ln tp Ln Oct h N O ' Cr) r O Lt) N N M co r � 0 0 0 0 a O Cl x 0 Co 0 0 Cl 0 0 0 0 0 0 0 0 O 0 0 0 0 0 O 0 0 0 0 0 0 0 0 0 0 0 O O O O O O. a O N tD� O 0 O O C 0 co O a 0 0 O O O N N d ea L(V N Oct Ln CO CO to LO A Llj O N r� N 00 M �- N cm to Z LN �y z LU x 0 0 0 0 O A Q O O O O O O O O a O O O O O N 0 r 0 0 0 0 0 O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O o 0 0 0 0 Co Co o c Cl c c co W m � 0)(D 40 ^ ti M Q CD O tp N w 07 C) fA CD CD cd c A 0 0 0 0 O O O O O O O O O A A A O O O O O O O O O O O 0 0 0 0 0 0 0 0 0 0 0 O O O O O C 0 0 O O O O C G O G G O 0 0 00 0 G 69 CD 1* 0 It m r L[i tU r� Z O O O O O O 0 0 0 0 0 0 0 0 0 0 0 9 9 9 O O 0 0 0 0 0 o c o 0 0 o 0 o 0 0 0 0 0 0 0 0 o r �r o000o a o0o Oro CD o C•� r O M r 0 O CO O to W) r CD � M M r r O a CM CM 0 1- O Oi O N r O M Ln Lo t,- v N r Z Z ^ - Co N r r r r 0) CO O r N n O L a a o 0 0 0 0 0 0 0 0 0 Co a A A a o 0 0 0 0 A H 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 a o o a o 0 0 0 0 0 o a A 0 o c o c c 0 0 0 o A Q Z R CAD Go 0. 5-a,z v ° a vo 00 r a MNO.2 T `LA" OF4 U `o 4)$R o O Lo cr N 0 Cl '.0 12 i+ 0 0 0 0 O 0 O ` CO m O O CL O- 0 oO H d 7 v _O ._ .> > m = CL - 3 v O ' Q � W o O Lo v 0 Cl 0 O M �a 0 0 0 0 O 0 O V co V Lu N r 0 M N 0 0 0 0 N a?Z 0 0 0 o z° O > E -i IL Q CL CD ° 2 allo N U z ° m O O E can Q � V L LO C O a O O O r o O Lo 0 O 0 Cl 0 O M 0 0 N 0 0 0 0 0 O 0 O 0 O 0 r O M 0 r r 0 M N 0 0 0 0 0 0 0 o p p p 0 0 0 0 CD ° allo N ° a O O Lo can L°r) � C LO Lo r O U. N � � 2 7 "a 0 U c/5 d _y 00 Co ° ° 00 LOL ° ° p p p °� °o ° 00 O 0 Lo O w Lo 6% U r Q Lo A Lo °� U I" I" o Q a. 69 a o co 69 CO) m Q I-- 69 00 0 0 0 0 00 p p p °o °o CD m Lo LA Lo N � � ~ ~ d~9 r � O O O O O co O h Q Q Q h O h h O O o O LA O N N O O h to N O r 0 P P P h N h m ° ° O ° N p p p N N r- 69. 1U) LLo 609 m m LLo N O N co CD N (O 00 r r 69 r r 69 r 69 r N lfl °O °° NN° p p p N O N N 69 O O O H H H r O r r r r 69 r r 69 r 69 r N to 0 °° p p p 0 O 0 0 0 0 0 0 0 O O Lo LLB O O m m m 0 O O O rfi3 N N N69 64 � N � � AMEND. NO.2 EXHIBIT "B" Page 1 of 1 N 2 rn N d � � N O m �E U allo N m a 0 m U can AMEND. NO.2 EXHIBIT "B" Page 1 of 1 rn N U N LL C N O U. N L 2 7 "a 0 U c/5 d _y Q Z► 2 LOL co Cn O w � U r Q U A °� U cNa o Q a. s a o co co CO) m Q I-- AMEND. NO.2 EXHIBIT "B" Page 1 of 1 SUPPLIER NUMBER t0 11t:. ASS1(jNF'D B) _(_ 7_ 111[itCHASIN(i bIVtSION' CITE' O CORPUS CHRISTI Citr Co,rpus DISCLOSURE INTEREST T Chrkii City of Corpus Christi Ordinal= 17112. as amended. requires all persons or firms seeking to do business with the City to rowide the folio %vine; infonnataon. I:wery question trust be answered. if the question is not appii'cable, aE svver'with " A". Sec reverse side for Filing equirej ents, Certifications and definitions. COMPANY NAME: Urban Engineering S") BEET r'kDDR SS. 2725 S4wantner CITY: Corpus Christi ZIP: FIRM IS: 1. Corporation ?. Partnership 9 3. Sale Owner Q -t. Association 5. Other DISCLOSURE QUESTIONS If additional space is necessary =, please use tits reverse side of this pa �c or attach separate sheet. 1. State the names of each "employee" of the City" of Corpus C` tristi having an -,ownership interest'" constituting 3`��'� car more of the ownership in the above named -firin.' Name .Iola Title and C °its Department (if known) '. State: the names of each `°official" of the C`ity� of Corpus Christi havinso an "o"�nership interest'` constituting 31% or more Of the ownership in the above named "-firm.'° Name Title 3. State the names of each "board tai mhe;r' of the City of Corpus Christi having an "caws aaership interest" constituting 3% or more of "tile ownership in the above natnicd "itrill." Name Board, Commission or Committee 4. State the names of each emplo -yee or ollica r of as '`consultant" for the City of Carpets Christi who worked can any matter related to the suajic: t of` this contract and has an ' "caawnership interest ", constituting 3% or more of the ownership in the above named firm." Manna; Consultant EM FILING REQUIREMENTS If a person who requests official action oil a matter know.,; that the requested action will coni'er ail economic benefit on any City Officilil, or employee that is distingo i sit able from the effect that tile action will have on members of public in general or 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 tile matter, unless the interest of tile City ofricial or employee in the matter is a The disclosure shall also be made in at signed writing riled with tile City Secretary. [pparent. :�tllics 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: X -;) v _ Title: 2c� &r-4s.1 (Tyjw Air Prin 0 Signature of Certifying Date: Person: DEFINITIONS a. "Board member," A member of any board, commission. or committee appointed by [lie City Council of the City of Corpus Christi, Texas. b. "Economic benefit". Ali action that is likely to affect an economic interest if it Is likely to have an effect oil that interest that is distinguishable froth its effect on members of the public in general or a substantial segment thereof. c. --Employee.­ Any person employed by the City ofCorpus Christi, Texas either on a full or part-time basis. but not as ail independent contractor. d. 'T'irm." Any entity operated for ecolloitlic 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 tile (brin 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. Mayor. members of tile city Council, City Manager, DepLItV CitV manager, Assistant City Managers, Department and Division Heads. and NIunicipai court Judges of the Citv of Corpus Christi, Texas. f l.egat or equitable interest. vviiether actualiv or constructively held, r- estate- or holding in a firm, including wheil such interest is held through an agent, tnist, g entity. -,Constructively held*' refers to holdings or control established through voting trusts, proxies, or special terms ot'venture or partnershipaurceincriti." g. "Consultant.'" Any person or firma, such as ellaineers and architects, hired by the City of Corpus Christi for tile purpose of professional consultation and recommendation. CITY COUNCIL EXHIBIT CITY OF CORPUS CHRIST, TEXAS PADRE ISLAND WATER SUPPLY STUDY DEPARTMENT OF ENGINEERINGI SERVICES PAGE: 1 of 1 = _ i,I • F--1 km O 4� 4� V r 0 N N c� Lei 4� Im I I a) O U 4--+ U 4� O' N t � L e� U W Im I I a) O U 4--+ U 4� O' N l Im I a) U U O co 1� O N N c� C) gl� w � N p - ct O •� � O O � U � O U '4-j O � •o Q � � o o a� 0 0 u `o t � L e� U W l Im I a) U U O co 1� O N N c� C) gl� w � N p - ct O •� � O O � U � O U '4-j O � •o Q � � o o a� 0 0 u `o # WE oo I I 4--1j h 1 M� U P1 .7 Li J m J cn 0 Z D LL O O t � O O O O O L W O O O O O 0_ O U W # WE oo I I 4--1j h 1 M� U P1 .7 Li J m J cn 0 Z D LL O O O O O O O O O O O O O O O O O 0 O O 0 O 0 0 7- � O O CO O O (6 6 O O 00 co O O 0 0 T- W LO O LO 0 O O N O O N w ,;:f O Ln 0 O O ti O � 00 T- 0 0 0 ti O � O ti O O O LO Ef} w 00 LO Ef} m I�r N 6c3 6c3 6c3 Ea. CO (\A O CO O K? K? K? LU J m J 0) 0 cn Z U a Q J U o Q (�6 C/) ~ 0 LU D 0 cn 0 Z D LL N E U LU O O U O , U it m y O O L (D U N L LU C: O (D � Y o ? 0) O• O U .0) N to F- T u- m 0) v O N O U U U U N N U — I J H 0 LU U Z Q J Q m H LU 0 m H U LU O a 0 W Q cn W r Ti O O N N O O N Z 6 C Z O c O O O O � U N C: 0) CU c � LU � N cu C) L L Q% 70 O 4- r O Y N O N N a� o N C'7 N O L N O L- U 3o C O U -0 CU ell U 3: c ca O U U) Ca D � O U � c O U ~ u 0 AGENDA MEMORANDUM Future Item for the City Council Meeting of February 12, 2013 1852 Action Item for the City Council Meeting of February 26, 2013 DATE: January 28, 2013 TO: 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 Execute Construction Contract Oso Water Reclamation Plant Nutrient Removal Project (Ammonia) — Phase 1 CAPTION: Motion authorizing the City Manager, or designee, to execute a Construction Contract with CSA Construction of Houston, Texas in the amount of $3,461,025.00, for Oso Water Reclamation Plant Nutrient Removal Project (Ammonia) — Phase 1. PURPOSE: The purpose of this Agenda Item is to execute the Construction Contract for Oso Water Reclamation Plant Nutrient Removal Project (Ammonia) — Phase 1. BACKGROUND AND FINDINGS: This project is the second package of construction to enable the Oso Water Reclamation Plant to meet new Texas Commission on Environmental Quality (TCEQ) permit criteria for ammonia. The work consists of construction of a Breakpoint Chlorination (BPC) chemical feed system including two (2) concrete storage containment areas, storage tanks, peristaltic feed pumps, PVC piping, valves, flow meters, mixers, and appurtenances for sodium hypochlorite, sodium hydroxide, and sodium bisulfite. The chemical feed systems will also include electrical improvements, analyzers, monitoring equipment, communication radios, sample pumps, equipment racks, cable trays, PLC controllers, prefabricated fiberglass building, and the programming and automation of the entire system. A single system integrator shall oversee, incorporate and ultimately be responsible for the integration of each of the chemical feed, automation, monitoring, and control component subsystems into a single combined system. A work station will be installed in the existing administration building for monitoring and controlling the entire system. The project also includes the installation of three (3) skid mounted electric self - priming centrifugal pumps. On January 16, 2013, the City received proposals from two (2) bidders and their respective bids are as follows: Contractor Base Bid CSA Construction $3,461,025.00 Houston, TX Fiscal Year J S Haren Company $3,885,000.00 Athens, TN TOTALS The City's consultant, LNV, Inc., conducted a bid analysis of the two (2) proposals submitted to the City. The lowest bidder, based on the Total Base Bid, is CSA Construction of Houston, Texas. Based on the information submitted for Special Provisions A -28, A -29, and A -30, CSA Construction has the experience and resources to complete the project. ALTERNATIVES: 1. Execute the Construction Contract with CSA Construction as proposed. 2. Do not execute the Construction Contract with CSA Construction as proposed. OTHER CONSIDERATIONS: Award of construction contract is required to enable Oso Water Reclamation Plant to comply with recent TCEQ ammonia permit limits criteria (4 mg /L). Permit criteria must be met on or before October 2013. CONFORMITY TO CITY POLICY: Conforms to statues regarding bid process; FY 2012 -2013 Wastewater Capital Improvement Planning (CIP) Budget. EMERGENCY / NON - EMERGENCY: Non - emergency DEPARTMENTAL CLEARANCES: Wastewater Department FINANCIAL IMPACT: ❑ Ooeratina ❑ Revenue MCaoital ❑ Not applicable Fund(s): Wastewater CIP #2 Project to Fiscal Year Date Current Year Future Years TOTALS 2012 -2013 Expenditures (CIP only) Line Item Budget $1,354,100.00 $8,635,400.00 $2,927,000.00 $12,916,500.00 Encumbered / Expended Amount $1,354,100.00 $6,373,903.00 $7,728,003.00 This item $2,226,497.00 $1,234,528.00 $3,461,025.00 Future Anticipated Expenditures This Project $35,000.00 $1,608,088.00 $1,643,088.00 BALANCE $0.00 $0.00 $84,384.00 $84,384.00 Fund(s): Wastewater CIP #2 Comments: This project requires 180 calendar days with anticipated completion approximately September 2013. The Construction Contract will result in the expenditure of an amount not to exceed $3,461,025.00. This amount will be funded over two years, with FY 13 funding $2,226,497.00 and FY 14 will be required in the amount of $1,234,528.00. Additional CIP money will be requested at a later date in the amount of $900,000.00 for FY 14. RECOMMENDATION: City Staff recommends the approval of the Construction Contract with CSA Construction of Houston, Texas in the amount of $3,461,025.00 for the Oso Water Reclamation Plant Nutrient Removal Project (Ammonia) — Phase 1. LIST OF SUPPORTING DOCUMENTS: Project Budget Location Map exhE09007. oCFq S AQ n sgRq� c o 0 Of a T0� N 6� �0 O0- �, ek PROJECT #E09007 COR2LS C P,Tsi'T B-Ay PROJECT LOCATION OR j F CA y0 DEL OS� 10R. o� nN pq J c� L0CATION MAP NOT TO SCALE KA "N'l NAS -L_aGu qvA .MADAE Qso Water Reclamation Plant CITY COUNCIL EXHIBIT CITY OF CORPUS CHRISTI, TEXAS DEPARTMENT OF ENGINEERING SERVICES Nutrient Removal Project (Ammonia) PAGE: 1 of 1 PROJECT BUDGET OSO WATER RECLAMATION PLANT Belt Press Facility /Nutrient Removal Project No. 7423 & E09007 FUNDS AVAILABLE: Wastewater CIP ( 2010 - 2014) ................................................ ............................... $12,016,500.00 Future Wastewater CIP Request ............................................ ............................... 900,000.00 TOTAL AVAILABLE ............................................................ ............................... 12,916,500.00 FUNDS REQUIRED: Construction for Belt Press (CSA Construction, Inc.)* ................. ............................... $6,311,200.00 Contingency ( 10%) .............................................................. ............................... 631,120.00 Construction for Nutrient Removal (CSA Construction, Inc.) ......... ............................... 3,461,025.00 Contingency ( 10%) .............................................................. ............................... 346,102.00 Consultant Fees for Belt Press Design Consultant (Harmon Engineering)** .............................. ............................... 393,334.00 Geotechnical Consultant (Arias & Associates, Inc.) .................... ............................... 4,500.00 Materials Testing (Raba Kistner) ............................................ ............................... 39,052.00 Consultant Fees for Nutrient Removal: Design Consultant (LNV Engineering, Inc.)*** ........................... ............................... 648,559.00 Peer Review Consultant (Freese Nichols, Inc.) ............... ............................... 76,762.00 Water Sampling Consultant (Analysys, Inc.) .......................... ............................... 7,201.00 Construction Observation (LNV Engineering, Inc.) * * ** ................ ............................... 247,395.00 Testing & Inspection Services (Kleinfelder, Inc. - Allowance) ........ ............................... 35,000.00 Reimbursements Contract Administration (Contract Preparation/ Award/ Admin) ....... ............................... 240,330.00 Engineering Services (Project Mgt /Constr Mgt /Traffic Mgt) .......... ............................... 240,330.00 Finance Reimbursement ....................................................... ............................... 120,165.00 Misc. (Printing, Advertising, etc.) ............................................ ............................... 30,041.00 TOTAL ............................................................................. ............................... $12,832,116.00 ESTIMATED PROJECT BUDGET BALANCE .......................... ............................... $84,384.00 *Construction Contract was approved by City Council on January 31, 2012 by Motion M2012 -027. * *The Consultant Contract was approved by City Council on April 21, 2009 by Motion M2009 -094. ** *The Consultant Contract was approved by City Council on August 24, 2010 by Motion M2010 -197. * ** *Professional Services Contract approved by City Council on January 31, 2012 by Motion M2012 -028. 0 FMW .n W IJ no O -a--� C'r) � N � N V � O � U w -C:L v V� _ .- CL o U W � \ }�S .�. I C\l N t i cO G 22 N is L is i V O 00 ca .E LA W V O a co O O o O O O O O O O O O O O O O o 0 O O o O O O O O O O O O O O O O o 0 O O O O O 6 N .4 O N O . 6 O 6 (D 4 O O O O N N O M O LO LO O O O O O W S O W N O M L O Lr N M O a0 r M (D O (D - — — 0 M A O w O r— LO O N� O T— — M 0qqt O M qqt r— qqt M M M w O O 69 M 0qqt M M O N O DO Eii N N (D M N T— (f} T— (A bf} E:} N O O O N O O O O N N C C O O O O N O O O O N N M N •L co Q � Q c U U ° C co O .0 r. O U 7 .. _ Q U C.) c c :3 O c O .. (.v C3 U • O C r. 0) >, Q U) U > C 0 O N C O U L a� N ai c> N >, a) � -a > o U c Q y L Z >, c a� > °- > N N .� 0x L w Y ° Q co '�/� U) O i W N C +' r- C •� N> N Q Z N z co a° •(B CU CD N a Y w L a J C N �. m �. z >. ° a m � cu L O d a) CO m z co U) - 0 .. _ Cl U J 0 w _ w `� O a H w L cu m m w m .. o z .. o 0 � � � ch � C U (on O U cu a L O L O w m ° w m O 0) - V a 0 ° JQ U J U N U O E U cu > > w o o o CU a) (n o 3: E ° m ° •C-) � N a co a w C..i a) (.i a) U .� cn +��+ U .Q) > m •C..i 06 L U 0 co 3 J CO 3 o to v a o N N ch 0) ch 0) � a� O � z z c c c c i cn O i n a) "' c a U~ L LL � L L � 0 U U w Kii Cyr PH v AGENDA MEMORANDUM �aRPO,a,E Future Item for the City Council Meeting of February 12, 2013 1852 Action Item for the City Council Meeting of February 26, 2013 DATE: February 12, 2013 TO: Ronald L. Olson, City Manager FROM: Michael Barrera, Assistant Director of Financial Services mike cctexas.com (361) 826 -3169 Debbie Marroquin, Director of Gas Operations eiem cctexas.com (361) 855 -6924 Hot Tap Fittings CAPTION: Motion approving a supply agreement with M.T. Deason Company, Inc., Birmingham, Alabama for hot tap fittings in accordance with Bid Invitation No. BI- 0052 -13 based on only bid for an estimated annual expenditure of $69,257.50, of which $40,400.21 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 Gas Department in FY 2012-2013. PURPOSE: The fittings are used for tapping into existing pressurized natural gas lines in order to block off a section of line in need of repair or to add an additional line for new gas service. BACKGROUND AND FINDINGS: The option to extend the previous contract was not exercised due to the vendor's unwillingness to extend the contract without a 21% price increase. Re- bidding the commodity resulted in a price increase of only 5 %. 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: Gas Department FINANCIAL IMPACT: x Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012- 2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $359,382.55 $28,857.29 $388,239.84 Encumbered / Expended Amount $122,374.18 $0 $122,374.18 This item $40,400.21 $28,857.29 $69,257.50 BALANCE $1967608.16 $1967608.16 Fund(s): Gas Fund Comments: The $40,400.21 financial impact shown above represents seven months of expenditures that will be encumbered through the end of this fiscal year. The remaining $28,857.29 for the last five months of the contract will be requested during the normal FY 2013/2014 budget approval process. 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 1.0 Control Fittings 1.1 Control Fitting - 2" 1.2 Control Fitting - 4" 1.3 Control Fitting - 6" 1.4 Control Fitting - 8" Three -Wav Stopple 2.0 2.1 2.2 2.3 2.4 Tee Fittings Three Way Stopple - 2" Three Way Stopple - 4" Three Way Stopple - 6" Three Way Stopple - 8" BID TABULATION BID INVITATION NO. BI- 0052 -13 HOT TAP FITTINGS M.T. DEASON COMPANY, INC. BIRMINGHAM, AL UNIT TOTAL QTY I UNIT PRICE I PRICE 200 40 15 10 180 40 15 10 each each each each each each each each TOTAL: $32.50 $218.00 $391.00 $576.50 $65.50 $336.00 $543.50 902.50 $6,500.00 $8,720.00 $5,865.00 $5,765.00 $11,790.00 $13,440.00 $8,152.50 $9,025.00 $69,257.50 E i7ibl 1 DATE: February 12, 2013 Future Item for the City Council Action Item for the City Council TO: Ronald L. Olson, City Manager FROM: Michael Barrera, Assistant Director of Financial Services ieb cctexas.co 361- 826 -3169 AGENDA MEMORANDUM Meeting of February 12, 2013 Meeting of February 26, 2013 Uniformed Guard Security Services CAPTION: Motion approving a service agreement with Eddie Garza Security & Investigations, of Corpus Christi, Texas for uniformed guard security services for City Hall, Frost Bank Building, Central Library, Ben F. McDonald Library, Janet F. Harte Library and the O.N. Stevens Water Treatment Plant in accordance with Bid Invitation No. BI- 0035 -13 based on lowest local bid for an estimated twelve month expenditure of $296,186.63 of which $123,411.10 is required for the remainder of FY 2012 -2013. The term of the agreements shall be for twelve months with options to extend for up to two additional twelve months periods, subject to the approval of the supplier and the City Manager or designee. Funds have been budgeted by the using departments in FY 2012- 2013. PURPOSE: Security Services are required at City Hall, Frost Bank Building, Central Library, Ben F. McDonald Library, Janet F. Harte Library and the 0. N. Stevens Water Treatment Plant. BACKGROUND AND FINDINGS: The contractor shall be responsible for opening the buildings in the morning's, deactivating the alarm system, monitoring fire alarm system, onsite monitoring of the security system and video surveillance system, patrolling and monitoring all spaces contained within the building and surrounding parking areas to ensure safety and order are maintained. ALTERNATIVES: Not Applicable. OTHER CONSIDERATIONS: The recommended award is based on Section 26 of the Council Policies of the City of Corpus Christi Code of Ordinance. The ordnance provides for local preference when the local bidder is within 5% of a non local bidder. 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. DEPARTMENTALCLEARANCES: Corpus Christi Public Libraries, Facility Maintenance and Water Department FINANCIAL IMPACT: X Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2012 -2013 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget $811,524.05 $172,775.53 $984,299.58 Encumbered / Expended Amount $357,791.67 $357,791.67 This item $123,411.10 $172,775.53 $296,186.63 BALANCE $330,321.28 $330,321.28 Fund(s): Corpus Christi Public Libraries, Facility Maintenance and Water Department Comments: The $123,411.10 financial impact shown above represents five months of expenditures that will be encumbered through the end of this fiscal year. The remaining $172,775.53 will be requested during the normal FY 2013 -2014 budget approval process. RECOMMENDATION: Staff recommends approval of the motion as presented. LIST OF SUPPORTING DOCUMENTS: Bid Tabulation. C R FL M .0 Lo a E M U) R p 00 > �` J R H Z N ` N 0 U) a a H -OU w Q R - m 1 J � (7 R > Q E >. m in E 0 o Z Fn Z) LL Cl) O Oro Q N Q } U) 0 Q Z d _ Q m 0�?2w (n i J W Z) 0 w w d 0 z <0 0 U) o = M z Lu > j 0 U a M U U 00 00 0 N O O O 0 O ON Q - N o U >� d W N V N M O) co co CO CO 0 r CD - M - I� M M2 CO M o M N � x N F O O 00 O O M M M M M M O 0 .. N a V, V V, V V V 69 A 41 o y F o N k d W Loo oo o N O O O 0 O O O O Lo o o) o o W N Lo N O 69 69 Lo U Ooo Ooo O O U 69 o D U 3 N F N k a W MO O O o O O LO LQ V o COO o co LO LO V o) V N O LO O Ln O O N LO N LO M fl N y R U C7 y LO LO LO LO LO LO N N N N N N N N N N N N .E N N o 0 C 0 W C) N N E R X d W 0 0 0 o O N V N o O CO V O V O M CO O O O 0 r LO O LO o) O N Ln N co N LO Q Zn ~ O fl o o o o o o o o .. WQEa m m .. m 0 0 0 0 0 0 > (n Z (n N U o o 0 0 o O O O O O O M o D o M 3 a LL, �v ornv rn O N V N LM N �F y, o o E o O O O O O O O O O O O O m Ln iz X U F N U d W Lo o o O o V N V N N CO co Lo O 0 I� M r M LO o) r co (O CO o V (O V o) V o) O N V N LM N O 0 69 E N O N o V V V V V V O O O O O o) t F co o Lo o o o Co o o (D o V V O) N V N V N co a � o 9 Y N— N Im N J N U_ o co Y n o co N Z O TU Q o o o �� Ty U (n Y "6 � Y "6 Y (6 U N Z 0 0 o 0 o o o 0 -O E `0 U E `0 U E o7 ° [7 + [7 + C O N C o O o o-E y R Y a a �-o m U �a m a? o m S E m(D co �- m- U �- m m E E's E's a� E m O C N J J LL N CD w N CD W N m W F o M M Efl N Ln o O co UH W LD N M V O 0) Efl 0 V 0 0) co co Efl v N S 'a R R O � R N O E Lo o r- U :E w 3 F !!L Attachment I SERVICE AGREEMENT Service Agreement No. SA THIS Uniform Guard Security Service CONTRACT (this "Agreement ") is entered into by and between Eddie Garza security and Investigations (the "Contractor ") and the City of Corpus Christi, a Texas home -rule municipal corporation (the "City ") effective for all purposes upon execution by the City Manager. WHEREAS Contractor has proposed to provide Uniform Guard Security Services in response to Bid Invitation No. BI- 0035 -13 in accordance with Specification No. 1155, dated September 10, 2012, Specification No. 1156, dated September 10, 2012, Specification No. 1157, dated September 10, 2012, 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 perform the Uniform Guard Security Services in accordance with Specification No. 1155, Specification No. 1156, and Specification No. 1157. 2. Term. This Agreement is for 12 months commencing on the date signed by the last signatory hereto. 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 or his designee ( "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 non - performance and authorizations for payment. All of Contractor's notices or communications regarding this Agreement must be directed to the Contract Administrator, who is the Facility Manager. 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 Contractor be considered as an employee of the City. Page 1 of 5 5. Insurance. Before activities can begin under this Agreement, Contractor's insurance company(ies) must deliver a Certificate of Insurance, as proof of the required insurance coverages, with applicable policy endorsements to the Contract Administrator. Additionally, the Certificate must state that the Facility Manager will be given at least 30 days notice of cancellation, material change in the coverages, or intent not to renew any of the policies by certified mail. The City must be named as an Additional Insured. The City Attorney must be given copies of all insurance policies within 15 days of the City Manager's written request. Insurance requirements are attached and incorporated into each specification and may be revised annually by the City Manager upon 30 days written notice to Contractor. 6. Assignment. No assignment of this Agreement or any right or interest therein by Contractor is effective unless the City first gives its written consent to such assignment. The performance of this Agreement by Contractor is of the essence of this Agreement 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, which fiscal year ends on July 31 annually, is subject to appropriations and budget approval providing for such contract item as an expenditure in that budget. The City does not represent that the budget item will be actually adopted, 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 Specification No. 1155, Specification No. 1156, or Specification No. 1157 or Contractor's bid submitted in response to Bid Invitation No. BI- 0035 -13 waives any subsequent breach of the same. 9. Compliance with laws. This Agreement is subject to all Federal laws and laws of the State of Texas. 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. Contractor may use subcontractors in connection with the work performed under this Agreement. When using subcontractors, however, Contractor must obtain prior written approval from the Facility Manager. In using subcontractors, Contractor is responsible for all their acts and omissions to the same extent as if the subcontractor and its employees were employees of Contractor. All requirements set forth as part of this Agreement are applicable to all subcontractors and their employees to the same extent as if the Contractor and its employees had performed the services. Page 2 of 5 11. Amendments. This Agreement may be amended only by written agreement signed by duly authorized representatives of the parties hereto. 12. Termination. The City Manager may terminate this Agreement for Contractor's failure to perform the services specified in Bid Invitation No. BI- 0035 -13 or Specification No. 1155, Specification No. 1156, or Specification No. 1157. Failure to keep all insurance policies in force for the entire term of this Agreement is grounds for termination. The Contract Administrator must give Contractor 5 work day's 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, City may terminate this Agreement upon 20 days written notice to Contractor. However, City may terminate this Agreement on 24 hours written notice to Contractor for failure to pay or provide proof of payment of taxes as set out herein. 13. Taxes. Contractor covenants to pay payroll taxes, Medicare taxes, FICA taxes, unemployment taxes, and all other related taxes according to Circular E Employer's Tax Guide, publication 15, as it may be amended. Contractor must provide proof of payment of these taxes within 30 days after City Manager's written request therefore. Failure to pay or provide proof of payment is grounds for the City Manager to immediately terminate this Agreement. 14. Drug Policy. Contractor must adopt a Drug Free Workplace and drug testing policy that substantially conforms to the City's policy. 15. Violence Policy. Contractor must adopt Violence in the Workplace and related hiring policy that substantially conforms to the City's policy. 16. Notice. Notice may be given by fax, hand delivery, or certified mail, postage prepaid, and is deemed received on the day faxed or hand delivered or on the third day after deposit if sent certified mail. Notice shall be sent as follows: IF TO CITY: City of Corpus Christi Attention: Jim Davis, Director of General Services P.O. Box 9277 Corpus Christi, Texas 78469 -9277 PHONE: (361) 826 -1986 FAX No.: (361) 826 -1989 IF TO CONTRACTOR: Contractor Name: Eddie Garza Security & Investigations Contact Person: Bill Garza Address: 4333 Kostoryz Rd City, State, Zip: Corpus Christi TX 78415 FAX No.: 361 - 853 -7803 Page 3 of 5 17. Month -to -Month Extension. If the City has not completed the bidding process and awarded a new supply agreement upon the expiration of the original contract period or any extension period, the Bidder shall continue to provide goods /services under this Agreement, at the most current price under the term of this supply agreement or extension, on a month to month basis, not to exceed six months. This supply 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. 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 CONTRACT OR THE PERFORMANCE OF THIS CONTRACT, 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 SATISFACTORY TO INDEMNITEES AND PAY ALL CHARGES OF ATTORNEY 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. Page 4 of 5 SIGNED this 12 day of November 20 12, Contractor: Name: Title: Mor CITY OF CORPUS CHRISTI Michael Barrera Assistant Director of Financial Services Incorporated herein, by reference: Exhibit A: Bid Invitation No. BI- 0035 -13, Specification No. 1151 Specification No. j 156, and Specification No. I J 57. Page 5 of 5 Date Resolution Authorizing the submission of a grant application in the amount of $79,188.69 to the State of Texas, Criminal Justice Division for funding available under the Victims of Crime Act (VOCA) fund for the Police Department's Family Violence Unit with a city match of $16,964.54 and $4,000 in -kind services for a total project cost of $100,153.23; and authorizing the City Manager or the City Manager's designee to apply for, accept, reject, alter or terminate the grant. Therefore, be it resolved by the City Council of the City of Corpus Christi, Texas: SECTION 1. The City Manager, or the City Manager's designee, is authorized to submit a grant application to the State of Texas, Criminal Justice Division in the amount of $79,188.69 for funding available under the Victims of Crime Act (VOCA) Fund for the Police Department's Family Violence Unit with a City match of $16,964.54 and $4,000 in kind services for a total project cost of $100,153.23. SECTION 2. The City Manager, or the City Manager's designee, may apply for, accept, reject, agree to alter the terms and conditions, or terminate the grant, if the grant is awarded to the City. SECTION 3. In the event of the loss or misuse of these State of Texas, Criminal Justice Division funds, the City of Corpus Christi assures that the funds will be returned to the State of Texas, Criminal Justice Division in full. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Nelda Martinez Mayor K Corpus Christi, Texas of The above resolution was passed by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott Resolution Authorizing the submission of a grant application in the amount of $47,351.74 to the State of Texas, Criminal Justice Division, for funding available under the Violence Against Women Act (VAWA) fund for the Police Department's Family Violence Unit with a city match of $16,573.28, an in -kind match of $5,400, for a total project cost of $69,325.02; and authorizing the City Manager or the City Manager's designee to apply for, accept, reject, alter or terminate the grant. Therefore, be it resolved by the City Council of the City of Corpus Christi, Texas: SECTION 1. The City Manager, or the City Manager's designee, is authorized to submit a grant application in the amount of $47,351.74 to the State of Texas, Criminal Justice Division, for funding available under the Violence Against Women Act (VAWA) Fund for the Police Department's Family Violence Unit with a City match of $16,573.28, an in- kind match of $5,400, for a total project cost of $69,325.02. SECTION 2. The City Manager, or the City Manager's designee, may apply for, accept, reject, agree to alter the terms and conditions, or terminate the grant, if the grant is awarded to the City. SECTION 3. In the event of the loss or misuse of these State of Texas, Criminal Justice Division funds, the City of Corpus Christi assures that the funds will be returned to the State of Texas, Criminal Justice Division in full. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Nelda Martinez Mayor K Corpus Christi, Texas of The above resolution was passed by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott DATE: January 29, 2013 TO: Ronald L. Olson, City Manager FROM: Floyd Simpson, Chief of Police Floods cctexas.com 886 -2603 Approval to submit a grant application to the State of Texas, Criminal Justice Division for funding available under the Victims of Crime Act (VOCA) Fund to establish a Victim Outreach Program CAPTION: Resolution authorizing the submission of a grant application in the amount of $67,660.55 to the State of Texas, Criminal Justice Division. For funding available under the Victims of Crime Act (VOCA) fund for the Police Department's Family Violence Unit to establish a Victim Outreach Program with a city match of $13,533.07 and $3,000 in- kind services, for a total project cost of $84,193.62; and authorizing the City Manager or designee to apply for, accept, reject, alter, or terminate the grant. PURPOSE: This funding is available from the State of Texas, Criminal Justice Division, to provides funds to projects with the primary mission of providing direct services to victims of crime. BACKGROUND AND FINDINGS: The grant is a new project for the Victim Assistance Program. Community Outreach is designed to assist victims in stabilizing their lives after victimization. In high crime rate districts, many victims are resistant to cooperation with law enforcement and the criminal justice system due to the emotional and physical impact of the crime. The grant will provide funding for a victim case manager to provide community outreach to identify resistant or reluctant victims of crime and assist victims in understanding and participating in the criminal justice system. Through public presentations, multi - disciplinary meetings and legal advocacy, the case manager will provide crisis intervention and follow up services in order to establish rapport and build resiliency of victims in districts at high risk for violence. A Staff Assistant keep accurate and timely records, including information properly entered into database systems. The State provides for the salary /benefits of one Victim Case Manager, one Staff Assistant, equipment, supplies, training, and mileage, volunteer hours contribute in -kind contribution, and the City contributes $13,533.07 for training, travel, supplies and miscellaneous equipment as the required match. The funding is not on a declining percentage or ending funding cycle. This grant period will be 9/1/2013 — 8/31/2014. ALTERNATIVES: None OTHER CONSIDERATIONS: CONFORMITY TO CITY POLICY: Conforms to all city policies. EMERGENCY /NON- EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Finance Legal 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 Encumbered / Expended Amount This item 0 $13,533.07 1 $13,533.07 BALANCE 0 $13,533.07 1 $13,533.07 Fund(s): General Comments: RECOMMENDATION: Staff recommends submission of the grant application LIST OF SUPPORTING DOCUMENTS: Resolution Authorizing the submission of a grant application in the amount of $67,660.55 to the State of Texas, Criminal Justice Division for funding available under the Victims of Crime Act (VOCA) fund for the Police Department's Family Violence Unit to establish a Victim Outreach Program with a city match of $13,533.07 and $3,000 in -kind services, for a total project cost of $84,193.62;; and authorizing the City Manager or the City Manager's designee to apply for, accept, reject, alter or terminate the grant. Therefore, be it resolved by the City Council of the City of Corpus Christi, Texas: SECTION 1. The City Manager, or the City Manager's designee, is authorized to submil a grant application to the State of Texas, Criminal Justice Division in the amount of $67,660.55 for funding available under the Victims of Crime Act (VOCA) Fund for the Police Department's Family Violence Unit to establish a Victim Outreach Program with a city match of $13,533.07 and $3,000 in -kind services, for a total project cost of $84,193.62. SECTION 2. The City Manager, or the City Manager's designee, may apply for, accept, reject, agree to alter the terms and conditions, or terminate the grant, if the grant is awarded to the City. SECTION 3. In the event of the loss or misuse of these State of Texas, Criminal Justice Division funds, the City of Corpus Christi assures that the funds will be returned to the State of Texas, Criminal Justice Division in full. ATTEST: THE CITY OF CORPUS CHRISTI Armando Chapa City Secretary Nelda Martinez Mayor K Corpus Christi, Texas of The above resolution was passed by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott 0 AGENDA MEMORANDUM Future Item for the City Council Meeting of February 12, 2013 1852 Action Item for the City Council Meeting of February 26, 2013 DATE: January 29, 2013 TO: Ronald L. Olson, City Manager THRU: Eddie Ortega, Director E dieO _cctexas.com 826.3224 FROM: Rudy Bentancourt, CD Administrator RudyBpcctexas.com 826.3021 Resolution of the City Council of the City of Corpus Christi supporting the proposed Woodland Creek Apartments; acknowledging an application for 9% Low Income Housing Tax Credits to the Texas Department of Housing and Community Affairs; and acknowledging the local support for the HOME Investment Partnership Program funds from the City of Corpus Christi. CAPTION: Resolution of the City Council of the City of Corpus Christi, Texas in support of the proposed affordable housing project known as Woodland Creek Apartments to be developed by TG 110, Inc. PURPOSE: Woodland Creek Apartments is an affordable housing development located at 11641 Leopard St., Corpus Christi, TX 78410. TG 110, Inc. proposes the demolition and reconstruction of 94 apartments (100% Section 8) serving low- income families, seniors, and individuals. If selected for Low Income Housing Tax Credits, the development will be primarily funded through TDHCA LIHTC's, private debt, and HOME funds through the City of Corpus Christi. The request of HOME funds for this project is $470,000. ALTERNATIVES: None OTHER CONSIDERATIONS: This resolution will not prioritize one applicant over the other applicants competing with them in the Corpus Christi market, but does acknowledge their application and consideration of HOME funds from the City of Corpus Christi. CONFORMITY TO CITY POLICY: Council approval is required for the passing of the resolutions. 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 Fund(s): Comments: RECOMMENDATION: Staff recommends that City Council recognize the applicant's applications for HOME Investment Partnership Program Funds from the City of Corpus Christi and to support Affordable Housing. LIST OF SUPPORTING DOCUMENTS: �►D_1 Resolution of the City Council of the City of Corpus Christi, Texas in support of the proposed affordable housing project known as Woodland Creek Apartments to be developed by TG 110, Inc. Whereas, TG 110, Inc. has proposed a development project to demolish and reconstruct 94 apartments to provide affordable housing to be located at 11641 Leopard Street, Corpus Christi, Texas 78410 and named Woodland Creek Apartments ( "Woodland Creek Apartment Project "); and Whereas, TG 110, Inc. intends to submit an application to the Texas Department of Housing and Community Affairs ( "TDHCA ") for 2013 Housing Tax Credits for the Woodland Creek Apartment Project; and Whereas, TG 110, Inc. has applied for HOME funding for the Woodland Creek Apartment Project in the amount of $470,000 from the City of Corpus Christi which represents $5,000 in funding per affordable rental unit; and Whereas, Section 11.9(d)(3)(B) of the 2013 State of Texas Qualified Allocation Plan states that one point may be added in the Housing Tax Credits evaluation process if the applicant provides a firm commitment of funds in the form of a resolution from the unit of general local government in its application; and Whereas, the City of Corpus Christi intends to set aside HOME Funds in the City of Corpus Christi FY 2013 Consolidated Annual Action Plan ( "CAAP ") to support the TG 110, Inc. Woodland Creek Apartment Project subject to an award of Low Income Housing Tax Credits from the Texas Department of Housing and Community Affairs to TG 110, Inc., and subject to receipt of sufficient available Department of Housing and Urban Development funding. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: Section 1. The City Council for the City of Corpus Christi hereby supports the proposed Woodland Creek Apartment Project. Section 2. The City Council for the City of Corpus Christi hereby acknowledges the support for the allocation of Housing Tax Credits for the Woodland Creek Apartment Project. PASSED AND APPROVED this day of _ , 2013 at a Regular Meeting of the City Council of the City of Corpus Christi, Texas. ATTEST: Armando Chapa City Secretary Corpus Christi, Texas of The above resolution was passed by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott CITY OF CORPUS CHRISTI Nelda Martinez Mayor 0 AGENDA MEMORANDUM Future Item for the City Council Meeting of February 12, 2013 1852 Action Item for the City Council Meeting of February 26, 2013 DATE: January 29, 2013 TO: Ronald L. Olson, City Manager THRU: Eddie Ortega, Director E dieO _cctexas.com 826.3224 FROM: Rudy Bentancourt, CD Administrator RudyBpcctexas.com 826.3021 Resolution of the City Council of the City of Corpus Christi supporting the proposed Lexington Manor Apartments; acknowledging an application for 9% Low Income Housing Tax Credits to the Texas Department of Housing and Community Affairs; and acknowledging the local support for the HOME Investment Partnership Program funds from the City of Corpus Christi. CAPTION: Resolution of the City Council of the City of Corpus Christi, Texas in support of the proposed affordable housing project known as Lexington Manor Apartments to be developed by TG 110, Inc. PURPOSE: Lexington Manor Apartments is an affordable housing development located at 5201 Kostoryz Rd., Corpus Christi, TX 78415. TG 110, Inc. proposes the demolition and reconstruction of 153 apartments (52 at Section 8 units) serving low- income families, seniors, and individuals. If selected for Low Income Housing Tax Credits (LIHTC), the development will be primarily funded through TDHCA, private debt, and HOME funds through the City of Corpus Christi. Lexington Manor will serve residents at 30 %, 50 %, and 60% of Area Median Income. The request of HOME funds for this project is $765,000. ALTERNATIVES: None OTHER CONSIDERATIONS: This resolution will not prioritize one applicant over the other applicants competing with them in the Corpus Christi market, but does acknowledge their application and consideration of HOME funds from the City of Corpus Christi. CONFORMITY TO CITY POLICY: Council approval is required for the passing of the resolutions. 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 Fund(s): Comments: RECOMMENDATION: Staff recommends that City Council recognize the applicant's applications for HOME Investment Partnership Program Funds from the City of Corpus Christi and to support Affordable Housing. LIST OF SUPPORTING DOCUMENTS: Resolution Resolution of the City Council of the City of Corpus Christi, Texas in support of the proposed affordable housing project known as Lexington Manor Apartments to be developed by TG 110, Inc. Whereas, TG 110, Inc. has proposed a development project to demolish and reconstruct 153 apartments to provide affordable housing to be located at 3126 Ray Ellison / 5201 Kostoryz, Corpus Christi, Texas 78415 and named Lexington Manor Apartments ( "Lexington Manor Apartment Project "); and Whereas, TG 110, Inc. intends to submit an application to the Texas Department of Housing and Community Affairs ( "TDHCA ") for 2013 Housing Tax Credits for the Lexington Manor Apartment Project; and Whereas, TG 110, Inc. has applied for HOME funding for the Lexington Manor Apartment Project in the amount of $765,000 from the City of Corpus Christi which represents $5,000 in funding per affordable rental unit; and Whereas, Section 11.9(d)(3)(B) of the 2013 State of Texas Qualified Allocation Plan states that one point may be added in the Housing Tax Credits evaluation process if the applicant provides a firm commitment of funds in the form of a resolution from the unit of general local government in its application; and Whereas, the City of Corpus Christi intends to set aside HOME Funds in the City of Corpus Christi FY 2013 Consolidated Annual Action Plan ( "CAAP ") to support the TG 110, Inc. Lexington Manor Apartment Project subject to an award of Low Income Housing Tax Credits from the Texas Department of Housing and Community Affairs to TG 110, Inc., and subject to receipt of sufficient available Department of Housing and Urban Development funding. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: Section 1. The City Council for the City of Corpus Christi hereby supports the proposed Lexington Manor Apartment Project. Section 2. The City Council for the City of Corpus Christi hereby acknowledges the support of the allocation of Housing Tax Credits for the Lexington Manor Apartment Project. PASSED AND APPROVED this day of _ , 2013 at a Regular Meeting of the City Council of the City of Corpus Christi, Texas. ATTEST: Armando Chapa City Secretary Corpus Christi, Texas of The above resolution was passed by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott CITY OF CORPUS CHRISTI Nelda Martinez Mayor 0 AGENDA MEMORANDUM Future Item for the City Council Meeting of February 12, 2013 1852 Action Item for the City Council Meeting of February 26, 2013 DATE: January 29, 2013 TO: Ronald L. Olson, City Manager THRU: Eddie Ortega, Director EieO _cctexas.com 826.3224 FROM: Rudy Bentancourt, CD Administrator RudyBpcctexas.com 826.3021 Resolution of the City Council of the City of Corpus Christi supporting the proposed Riverstone Apartments; acknowledging an application for 9% Low Income Housing Tax Credits to the Texas Department of Housing and Community Affairs; and acknowledging the local support for the HOME Investment Partnership Program funds from the City of Corpus Christi. CAPTION: Resolution of the City Council of the City of Corpus Christi, Texas in support of the proposed affordable housing project known as Riverstone Apartments to be developed by MDS Housing Corpus Christi, Ltd. PURPOSE: Riverstone Apartments, once constructed, will be an affordable housing development located at the intersection of Northwest Blvd. and County Road 69, Corpus Christi, TX 78410. MDS Housing Corpus Christi, LTD. proposes the construction of 72 apartments serving low- income families, seniors, and individuals at 30 %, 50 %, and 60% Area Median Income. If selected for Low Income Housing Tax Credits, the development will primarily be funded through TDHCA LIHTC's, private debt, and HOME funds through the City of Corpus Christi. The request of HOME funds for this project is $1,080,000. ALTERNATIVES: None OTHER CONSIDERATIONS: This resolution will not prioritize one applicant over the other applicants competing with them in the Corpus Christi market, but does acknowledge their application and consideration of HOME funds from the City of Corpus Christi. CONFORMITY TO CITY POLICY: Council approval is required for the passing of the resolutions. 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 Fund(s): Comments: RECOMMENDATION: Staff recommends that City Council recognize the applicant's applications for HOME Investment Partnership Program Funds from the City of Corpus Christi and to support Affordable Housing. LIST OF SUPPORTING DOCUMENTS: Resolution Resolution of the City Council of the City of Corpus Christi, Texas in support of the proposed affordable housing project known as Riverstone Apartments to be developed by MDS Housing Corpus Christi, Ltd. Whereas, MDS Housing Corpus Christi, Ltd. has proposed a development project to construct 72 apartments to provide affordable housing to be located at intersection of Northwest Blvd. and County Road 69, Corpus Christi, Texas 78410 and named Riverstone Apartments ( "Riverstone Apartment Project "); and Whereas, MDS Housing Corpus Christi, Ltd. intends to submit an application to the Texas Department of Housing and Community Affairs ( "TDHCA ") for 2013 Housing Tax Credits for the Riverstone Apartment Project; and Whereas, MDS Housing Corpus Christi, Ltd. has applied for HOME funding for the Riverstone Apartment Project in the amount of $1,080,000 from the City of Corpus Christi which represents $15,000 in funding per affordable rental unit; and Whereas, Section 11.9(d)(3)(B) of the 2013 State of Texas Qualified Allocation Plan states that one point may be added in the Housing Tax Credits evaluation process if the applicant provides a firm commitment of funds in the form of a resolution from the unit of general local government in its application; and Whereas, the City of Corpus Christi intends to set aside HOME Funds from the City of Corpus Christi FY 2013 Consolidated Annual Action Plan ( "CAAP ") to support the MDS Housing Corpus Christi, Ltd. Riverstone Apartment Project subject to an award of Low Income Housing Tax Credits from the Texas Department of Housing and Community Affairs to MDS Housing Corpus Christi, Ltd., and subject to receipt of sufficient available Department of Housing and Urban Development funding. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: Section 1. The City Council for the City of Corpus Christi hereby supports the proposed Riverstone Apartment Project. Section 2. The City Council for the City of Corpus Christi hereby acknowledges the support of the allocation of Housing Tax Credits for the Riverstone Apartment Project. PASSED AND APPROVED this day of _ , 2013 at a Regular Meeting of the City Council of the City of Corpus Christi, Texas. ATTEST: Armando Chapa City Secretary Corpus Christi, Texas of The above resolution was passed by the following vote: Nelda Martinez Kelley Allen Rudy Garza Priscilla Leal David Loeb Chad Magill Colleen McIntyre Lillian Riojas Mark Scott CITY OF CORPUS CHRISTI Nelda Martinez Mayor Cyr PH v AGENDA MEMORANDUM �aRPO,a,E Future Item for the City Council Meeting of February 12, 2013 1852 Action Item for the City Council Meeting of February 26, 2013 DATE: January 31, 2013 TO: Ronald L. Olson, City Manager FROM: Armando Chapa, City Secretary armandoc@cctexas.com (361) 826 -3105 Appointing Board Members to the Corpus Christi Housing Finance Corporation and the Corpus Christi Industrial Development Corporation CAPTION: Motion appointing Council Members Nelda Martinez, Kelley Allen, Rudy Garza, Priscilla Leal, David Loeb, Chad Magill, Colleen McIntyre, Lillian Riojas and Mark Scott as Board Members to the Corpus Christi Housing Finance Corporation and the Corpus Christi Industrial Development Corporation. PURPOSE: The City has three corporations for which the City Council serves as the Board of Directors. These corporations are the Corpus Christi Community Improvement Corporations (CCCIC), the Corpus Christi Housing Finance Corporation (CCHFC), and the Corpus Christi Industrial Development Corporation (CCIDC). Of the three corporations, the Corpus Christi Community Improvement Corporation is incorporated under the Texas Nonprofit Corporations Act and therefore appoints its own membership, as opposed to the other two for which the City Council makes the appointments. BACKGROUND AND FINDINGS: Not Applicable. ALTERNATIVES: Not applicable. OTHER CONSIDERATIONS: Not Applicable. CONFORMITY TO CITY POLICY: Not Applicable. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Neighborhood Services Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: Not Applicable RECOMMENDATION: Staff is recommending approval of the Motion as presented. LIST OF SUPPORTING DOCUMENTS: None. Cyr PH v AGENDA MEMORANDUM �aRPO,a,E Future Item for the City Council Meeting of February 12, 2013 1852 Action Item for the City Council Meeting of February 26, 2013 DATE: January 31, 2013 TO: Ronald L. Olson, City Manager FROM: Armando Chapa, City Secretary armandoc@cctexas.com (361) 826 -3105 Appointing Board Members to the Coastal Bend Health Facilities Development Corporation and the Coastal Bend Cultural Education Facilities Finance Corporation CAPTION: Motion appointing Council Members Nelda Martinez, Kelley Allen, Rudy Garza, Priscilla Leal, David Loeb, Chad Magill, Colleen McIntyre, Lillian Riojas and Mark Scott as Board Members to the Coastal Bend Health Facilities Development Corporation and the Coastal Bend Cultural Education Facilities Finance Corporation. PURPOSE: The Coastal Bend Health Facilities Development Corporation was formed in 1984 to facilitate the financing of health care facilities through the issuance of tax - exempt revenue bonds as authorized by federal tax laws. The Coastal Bend Cultural Education Facilities Finance Corporation was created in 2009 to replace the Coastal Bend Health Facilities Development Corporation. Since the Coastal Bend Health Facilities Development Corporation still has bonds outstanding from earlier financing, it cannot be dissolved until those bonds are either retired or refunded. Council Members are appointed to serve on both of these corporations in order to maintain continuity for both organizations until the Health Facilities Development Corporation can be dissolved. BACKGROUND AND FINDINGS: Not Applicable. ALTERNATIVES: Not applicable. OTHER CONSIDERATIONS: Not Applicable. CONFORMITY TO CITY POLICY: Not Applicable. EMERGENCY / NON - EMERGENCY: Non - Emergency DEPARTMENTAL CLEARANCES: Neighborhood Services Legal FINANCIAL IMPACT: ❑ Operating ❑ Revenue ❑ Capital ❑ Not applicable Fiscal Year: 2011- 2012 Project to Date Expenditures (CIP only) Current Year Future Years TOTALS Line Item Budget Encumbered / Expended Amount This item BALANCE Fund(s): Comments: Not Applicable RECOMMENDATION: Staff is recommending approval of the Motion as presented. LIST OF SUPPORTING DOCUMENTS: None.