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HomeMy WebLinkAboutC2024-118 - 7/3/2024 - NA USE AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI PARKS & RECREATION DEPARTMENT AND PADRE ISLAND BUSINESS ASSOCATION This Use Agreement Relating to construction, donation, and maintenance of art at Whitecap Seawall Parking Lot(Agreement), by and between the City of Corpus Christi (City),a municipal corporation,and the Padre Island Business Association(PIBA), a 501(c)(6)organization. 1. Premises. The City will allow the use of the southeast corner of the parking lot at Windward parking lot at the corner of the parking lot on the seawall southeast corner (Premises), together with all improvements thereon located at Windward Drive, Corpus Christi, Texas 78418, and depicted as follows: >n 11 '‘....„, Mb , _ fib.-. '44 et a .: ;,..1.10,c.- i �. • �� 'cam Ad } i. ter ;` 1 . w 2. Term. The term of this Agreement is 5 years, effective upon final City Council approval, unless sooner terminated as set out herein. 3. Payment. PIBA agrees to pay $10 a year. All fees are due and payable on or before 1st day of each year for the term of this Agreement. Payment must be made to the order of the City of Corpus Christi and mailed to the Accounts Receivable Division, P.O. Box 9277, Corpus Christi, TX 78469 or delivered to City Hall at 1201 Leopard Street, Corpus Christi, TX 78401. SCANNED 4. Purpose. A. The purpose of this Agreement is to enable PIBA to use the Premises to construct, install, and maintain the art and/or landscaping that encourages and attracts residents and tourists to Whitecap Seawall. B. The Premises must be open to the public at all times, except during construction and maintenance. C. The Premises must not be used for any other purpose without the Director of Parks and Recreation's (Director) approval. 5. Utilities. PIBA must pay cost of electricity or other utilities furnished to or used by PIBA on the Premises. Failure to pay utility bill(s) prior to the due date constitutes grounds for termination of this Agreement. 6. Maintenance. A. Except as provided in this Agreement,PIBA will maintain, at its own expense,the Premises and any and all improvements on the Premises, including all art installations, fixtures, and all personal property thereon, including the art, signage, landscaping, and lighting. B. PIBA, at its own expense, shall obtain any necessary permits and utility services. C. PIBA will maintain the grounds and landscaping of the Premises, including art, lighting, and all signage. D. PIBA will provide a schedule for maintenance to the Director within 30 days of the completion date of the art, installation, or construction and every year thereafter. E. PIBA must respond to requests for maintenance within 14 days. 7. Parking. There is no dedicated parking provided with this Agreement. 8. Construction of Improvements. A. Costs of improvements. The complete cost of developing all necessary plans and specifications, as provided in this Agreement, and the cost of construction or installation of art shall be borne solely by PIBA and be at no expense to the City whatsoever. PIBA shall pay all taxes, special assessments, or levies, if any, assessed during the term of this agreement relating to the improvements on City's property, including ad valorem taxes pursuant to the Texas Property Tax Code. Page 2 of 14 B. PIBA shall not make any alterations, installations, or construction to the Premises without the prior written approval of the Director. All alterations, improvements, installations, and additions made by PIBA to the Premises shall become the property of the City in fee simple without any other action or process of law. C. When constructing the improvements, art, and/or installing landscaping, PIBA shall ensure that the plans and specifications shall be prepared by state-licensed architects or engineers. The plans and specifications must be approved by the City Director of Engineering and the City Director of Parks and Recreation prior to any work is done. D. Except as otherwise specified in this Agreement, PIBA shall include in all PIBA construction agreements the following provision: Contractor does hereby agree to waive all claims, release, indemnify, defend and hold harmless City of Corpus Christi and all of its officials, officers, agents and employees, in both their public and private capacities, from and against any and all liability, claims, losses, damages, suits, demands or causes of action including all expenses of litigation and/or settlement, court costs and attorney fees which may arise by reason of injury to or death of any person or for loss of, damage to, or loss of use of any property occasioned by error, omission, or negligent act of Contractor, its officers, agents, employees, subcontractors, invitees or any other person, arising out of or in connection with the performance of this agreement, and Contractor shall at his or her own cost and expense defend and protect the City of Corpus Christi from any and all such claims and demands. E. Except as otherwise specified in this Agreement, PIBA shall also require the contracts in all construction agreements for the Premises to furnish insurance in such amounts as directed by the Risk Manager. All contractors shall provide a Certificate of Insurance evidencing the required coverages to the Risk Manager before any construction, improvements, and/or landscaping projects are commenced. F. PIBA agrees that all work to be performed by it or its contractors, including all workmanship and materials, shall be of first-class quality and shall be performed in full compliance and in accordance with all federal, state, and local laws, ordinances, codes, and regulations, including but not limited to the Americans with Disabilities Act and the Americans with Disabilities Act Accessibility Guidelines and such work shall be subject to City inspection during the performance thereof and after it is completed. Page 3 of 14 G. PIBA shall discharge all obligations to contractors, subcontractors, materialmen, workmen, and/or other persons for all work performed and for materials furnished for or on account of PIBA as such obligations mature. PIBA expressly agrees that it will neither give nor grant, nor purport to give or grant any mechanic's or materialmen's lien upon the City's property or upon any improvements thereupon in the process of construction or repair, nor allow any condition to exist or situation to develop whereby any party should be entitled, as a matter of law, to a mechanic's or materialmen's lien against the City's property improvements thereon, and PIBA will discharge any such lien within 30 days after notice of filing thereof. H. PIBA shall conduct its operations under this Agreement in an orderly and proper manner, considering the nature of such operation, so as not to unreasonably annoy, disturb,or endanger others. I. Before any work on City property begins, PIBA shall present the City Director of Parks and Recreation with evidence of insurance coverages and City building and construction permits. J. The parties anticipate that the construction/improvements shall be completed by May 15, 2024, or sooner. 9. Art. Any art installed on the Premises shall be submitted to the Director for approval prior to installation. PIBA shall neither install art, erect signage, nor distribute advertising matter upon Premises without the prior written consent of the Director. 10. City Use. City retains the right to use or cross the Premises with utility lines and easements. City may exercise these rights without compensation to PIBA for damages to the Premises from installing, maintaining, repairing, or removing the utility lines and easements. 11. Inspection.Any officer or authorized employee of the City may enter upon the Premises, at all reasonable times and with advance notice, to determine whether PIBA is providing maintenance in accordance with and as required by above, or for any other purpose incidental to City's retained rights of and in the Premises. 12. Risk of Loss or Damage. PIBA shall be solely responsible and assume all risk of loss or damage to the improvements, including any loss due to a natural or man-made disaster, and shall maintain adequate insurance for the duration of this Agreement. In the event that there is damage or destruction of the improvements installed, PIBA must repair or remove as soon as practicable after notice from the City of the requirement for repair or removal if repair is not practical. In no event will the time allowed for the repair or removal exceed 14 days without written authorization of the City's Director of Parks and Recreation. 13. Insurance and Waivers. PIBA shall require all of its contractors to obtain the insurance Page 4 of 14 described in the attached Exhibit A and applicable permits prior to beginning work on City property. PIBA shall include in all contracts related to the Agreement, including all art, a requirement that the contractor require all subcontractors to obtain the insurance described in the attached Exhibit A and any applicable permits prior to beginning work on City property. Further, PIBA acknowledges that the City is not responsible for any damage to the improvements and will not provide property insurance coverage. PIBA understands that the City will not provide insurance coverage. PIBA will require all volunteers or employees to sign a liability waiver in a form approved by the City Attorney prior to beginning any work on City property. PIBA will limit any work done by employees or volunteers to routine maintenance, such as cleaning and painting, and will not make any capital improvements or repairs except through a qualified contractor who has provided the required insurance described in the attached Exhibit A. 14. Acceptance of Premises Disclaimer. PIBA acknowledges that it is leasing the premises "AS IS" with all faults as may exist on the Premises, and that neither City, nor any employee or agent of City has made any representations or warranties as to the condition of such premises. PIBA hereby waives any and all causes of action, claims, demands and/or damages based on any warranty, express or implied, including but not limited to any implied warranty of suitability for a particular purpose, any and all warranties of habitability, and any other implied warranties not expressly set forth in this Agreement. PIBA acknowledges and agrees that PIBA has been provided, to its satisfaction, the opportunity to inspect the Premises for any defects as to the suitability of such property for the purpose to which PIBA intends to use the Premises and is relying on its own inspection. PIBA acknowledges that any and all structures and improvements existing on the Premises on the commencement date, if any, are accepted "AS IS" with any and all latent and patent defects and that there are no warranties, express or implied, by City with respect thereto. PIBA acknowledges that it is not relying upon any representation, statement, or other assertion by City with respect to any existing structures or improvements but is relying on its own examination thereof. The provisions of this section shall survive the expiration or earlier termination of this Agreement. 15. Indemnity. In consideration of allowing PIBA to use the Premises, PIBA covenants to fully indemnify, defend, save, and hold harmless the City, its officers, agents, representatives, and employees (collectively "Indemnitees") from and against any and all liability, loss, damages, claims, demands, suits, and causes of Page 5 of 14 action of any nature whatsoever asserted against or recovered from Indemnitees on account of injury or damage to person including, without limitation, premises defects, workers' compensation and death claims, or property loss or damage of any other kind whatsoever, to the extent any injury, damage, or loss may be incident to, arise out of, be caused by or be in any way connected with, either proximately or remotely, wholly or in part: (1) PIBA's performance pursuant to this Agreement; (2) PIBA's use of the Premises and any and all activities associated therewith pursuant to this Agreement; (3) the violation by PIBA, its officers, employees, agents, or representatives of any law, rule, regulation, ordinance, or government order of any kind pertaining, directly or indirectly, to this Agreement; (4) the exercise of rights under this Agreement; or (5) an act or omission on the part of PIBA, its officers, employees, agents, or representatives pertaining to this Agreement, regardless of whether the injury, damage, loss, violation, exercise of rights, act or omission is caused or is claimed to be caused by the sole, contributing, or concurrent negligence of Indemnitees, and including all expenses of litigation, court costs, and attorneys' fees, which arise or are claimed to arise out of or in connection with the asserted or recovered incident. PIBA covenants and agrees that if Indemnitees, or any of them, is made a party to any litigation against PIBA or in any litigation commenced by any party other than PIBA relating to this Agreement, PIBA shall, upon receipt of reasonable notice regarding commencement of litigation, at its own expense, investigate all claims and demands, attend to their settlement or other disposition, defend Indemnitees in all actions based thereon with legal counsel satisfactory to the City Attorney, and pay all charges of attorneys and all other costs and expenses of any kind whatsoever arising from any said liability, injury, damage, loss, demand, claim, or action. 16. Relationship of Parties. This Agreement establishes a landlord/tenant relationship, and none other, and this Agreement must be construed conclusively in favor of that relationship. In performing this Agreement, both City and Lessee will act in an individual capacity and not as agents, representatives, employees, employers, partners, joint venturers, or associates of one another. The employees or agents of either party shall not be, nor be construed to be, the employees or agents of the other party for any purpose whatsoever. 17. Sublease and Assignment. PIBA understands and agrees that PIBA shall not assign or sublease the Premises or any part thereof without obtaining the prior written consent of the City. Any attempted assignment without the prior written consent of the City renders this Agreement null and void. Page 6 of 14 18. Default. A. Default of PIBA. If PIBA fails to pay the rent due hereunder, pay utilities, perform required maintenance, or fails to keep, perform, or observe any other provision, term, covenant, obligation, and/or condition of this Agreement, City may, after 15 days written notice to PIBA, declare this Agreement terminated and reenter the Premises and remove all persons without legal process and without prejudice to any of its other legal rights. PIBA expressly waives (1) all claims for damages by reason of such reentry and (2) all claims for damages due to any distress warrants or proceedings of sequestration to recover the rent or possession of the Premises from PIBA. The City may not declare this Agreement terminated if, within 15 days after notice of any default, PIBA fully cures such default. The City's failure to issue this notice is not a waiver of its right to issue such notice. B. Default of City. If City defaults in the performance of any covenant or agreement contained herein, which continues for 30 days after PIBA's written notice to the City as set out below,then PIBA may declare this Agreement terminated and may vacate said Premises and owe no further rent and have no further obligations under this Agreement. This shall be PIBA's sole remedy upon City's default. 19. Notice. All notices, demands, requests or replies provided for or permitted under this Agreement by either party must be in writing and must be delivered by one of the following methods: (i) by personal delivery; (ii) by deposit with the United States Postal Service as certified mail,return receipt requested, postage prepaid; or(iii)placement of notice to Lessee on the front door of the Premises. Notice by (i) and (iii) will be deemed effective upon delivery or placement and(ii)will be deemed effective 2 business days after deposit with the United States Postal service. All these communications must only be made to the following: City of Corpus Christi With copy to: Attn: Director of Parks and Recreation City of Corpus Christi PO Box 9277 1201 Leopard Street, 5th Floor Corpus Christi,Texas 78469 Corpus Christi, Texas 78401 Notice to PIBA shall be sent to: Padre Island Business Association 14493 SPID, Ste. A PMB-313 Corpus Christi, Texas 78418 Either party may change the address to which notice is sent by using a method set out above. PIBA shall notify the City of an address change within 10 days after the address is changed. 20. Modifications. No changes or modifications to this Agreement may be made, nor any provisions waived, unless the change, modification or waiver is made in writing and Page 7of14 signed by persons authorized to sign agreements on behalf of each party. 21. Surrender. PIBA acknowledges and understands that the use of the Premises by PIBA is expressly conditioned on the understanding that the Premises must be surrendered upon the expiration, termination, or cancellation of this Agreement in as good a condition as received, reasonable use and wear, acts of God, fire and flood damage, or destruction where PIBA is without fault, excepted. Any reasonable costs incurred for repairs or corrections for which PIBA is responsible under this Agreement are payable by PIBA to City as additional rental on the next rental payment date or within 30 days written demand. 22. Interpretation. This Agreement will be interpreted according to the Texas laws that govern the interpretation of contracts. Sole venue lies in Nueces County, Texas where this Agreement was entered into and will be performed. 23. Compliance with State and Federal Laws. The following provisions are in this contract for compliance with state and federal law, and the City does not opine on their validity or enforceability. Lessee shall bear the entire sole burden for complying with any of these clauses. Prior to the enforcement of any of the following clauses,the City will give at least 30 days notice of alleged violation thereof and an opportunity for the Lessee to be heard concerning the alleged violation,effect thereof on the City,and proposed remedial measures: • Lessee warrants that it is and will continue to be an equal opportunity employer and hereby covenants that no employee or customer will be discriminated against because of race, religion, sex, age, disability, creed,color, or national origin. • Lessee shall provide all services and activities required to comply with the Civil Rights Act of 1964, as amended, the Rehabilitation Act of 1973, Public Law 93- 1122, Section 504, and with the provisions of the Americans with Disabilities Act of 1990, Public Law 101-336 [S.933]. A. Lessee agrees to comply with Tex. Gov't Code § 2252.908 and submit Form 1295 to the City with the signed agreement. The Parties agree that the City is not responsible for the information contained in Form 1295. B. In accordance with Tex. Gov't Code §2252.909, Lessee must include in each contract for the construction, alteration, or repair of an improvement to this property a condition that the contractor execute a payment bond that conforms to Subchapter I, Chapter 53, Property Code and a performance bond equal to the amount of the contract and conditioned on the faithful performance of the contractor's work in accordance with the plans, specifications and contract documents. Lessee must provide the City with a notice of commencement at least 90 days prior to start of construction, alteration or repair that complies with Texas Gov't Code § 2252.909. 24. Captions. The captions utilized in this Agreement are for convenience only and do not in any way limit or amplify the terms or provisions hereof. 25. Casualty. If the Premises become damaged due to weather event, fire, or other natural or man-made disaster, such that the Premises are not deemed safe for occupation by the City Building Official, and repairs are not completed within 30 Page 8 of 14 days of the event of disaster, then either party may terminate this Agreement upon 30 days written notice to the other party,without penalty. 26. Removal of Property upon Termination. It is PIBA's responsibility to remove its personal property from the Premises prior to termination or expiration of the Agreement. PIBA agrees that any of personal property remaining on the Premises after the termination or expiration of the Agreement automatically becomes City property without any notice, action, or process of law for disposition by the City as City deems appropriate in City Manager's sole discretion, with no compensation to PIBA. PIBA shall be invoiced for City's costs to remove property from the Premises after termination or expiration of the Agreement, and PIBA shall pay said invoice within 30 days of receipt. 27. Waiver of Attorneys' Fees and Jury Trial. A. In case of litigation between the parties, PIBA and City agree that neither party shall be responsible for payment of attorney's fees pursuant to any law or other provision for payment of attorneys' fees. Both Parties expressly waive any claim to attorneys' fees should litigation result from any dispute between the parties to this Agreement. B. In case of litigation between the parties, PIBA and City agree that they have knowingly waived and do hereby waive the right to trial by jury and have instead agreed, in the event of any litigation arising out of or connected to this Agreement, to proceed with a trial before the court, unless both parties subsequently agree otherwise in writing. 28. Entirety Clause. This Agreement and the incorporated and attached exhibits constitute the entire agreement between the City and PIBA for the purpose granted. All other agreements, promises, representations, and understandings, verbal or otherwise, with reference to the subject matter hereof, unless contained in this 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 PIBA's operations and the Premises to be used in the operations. 29. Severability. A. If, for any reason, any section, paragraph, subdivision, clause, provisions, phrase, or word of this Agreement or the application hereof to any person or circumstance is,to any extent, held illegal, invalid, or unenforceable under present or future law or by a final Judgment of a court of competent Jurisdiction, then the remainder of this Agreement or the application of said term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected thereby for it is the definite intent of the parties to this Agreement that every section, paragraph, subdivision, clause, provision,phrase, or word hereof be given full force and effect for its purpose. Page 9 of 14 B. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Agreement, the remainder of this Agreement is not affected. C. If any clause or provision is held illegal, invalid, or unenforceable, a clause or provision that is similar in terms to that clause or provision will be substituted for the clause or provision by the Court that found such clause or provision to be illegal, invalid, or unenforceable. 30. Governmental Immunity. This Agreement is to perform a governmental function solely for the public benefit. 31. Termination. This Agreement may be terminated by the City upon 90 days written notice to PIBA. 32. Acknowledgement. The parties expressly agree that they have each independently read and understood this Agreement. By PIBA's execution of this Agreement, PIBA acknowledges and understands that this Agreement is not binding on the City until properly authorized by City Council and executed by the City Manager or designee. Signatures on next page. Page 10 of 14 CITY OF CORPUS CHRISTI /4114W A T: Robert Dodd Rebecca Huerta Director of Parks and Recreation City Secretary APPROVED AS TO FORM: 1)1 03 20 Z' 44 4, 4 Adelita Cavada, Assistant City Attorney For the City Attorney PADRE ISLAND BUSINESS ASSOCIATION By: Name: STA'" v".s Title: E1C-E-c •JC- 'D< Page 11 of 14 EXHIBIT A INSURANCE REQUIREMENTS I. LESSEE'S LIABILITY INSURANCE A. Lessee must not commence work under this agreement until all insurance required has been obtained and such insurance has been approved by the City. Lessee must not allow any subcontractor to commence work until all similar insurance required of any subcontractor has been obtained. B. Lessee must furnish to the City's Risk Manager and Contract Administer one (1) copy of Certificates of Insurance (COI) with applicable policy endorsements showing the following minimum coverage by an insurance company(s) acceptable to the City's Risk Manager. The City must be listed as an additional insured on the General Liability and Auto Liability policies by endorsement, and a waiver of subrogation is required on all applicable policies. Endorsements must be provided with COI. Project name and/or number must be listed in Description Box of COI. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE Commercial General Liability Including: $1,000,000 Per Occurrence El 1. Commercial Broad Form 2. Premises—Operations $5,000,000 Per Occurrence ❑ 3. Products/Completed Operations 4. Contractual Liability $10,000,000 Per Occurrence ❑ 5. Independent Contractors 6. Personal Injury-Advertising Injury Required El Not Required ❑ AUTO LIABILITY(including) $500,000 Combined Single Limit 1. Owned 2. Hired and Non-Owned 3. Rented/Leased Required ® Not Required 0 WORKERS' COMPENSATION Statutory EMPLOYER'S LIABILITY $500,000/$500,000/$500,000 Required ® Not Required 0 Page 12 of 14 PROFESSIONAL LIABILITY $1,000,000 Per Occurrence (Errors and Omissions) (Defense costs not included in face value of the policy) Applicable to Engineering Services If claims made policy, retro date must be at or prior to inception of agreement, have extended reporting period provisions and identify any limitations regarding who is insured. Required ® Not Required El Subcontractors Lessee shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Lessee shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. Required ® Not Required El C. In the event of accidents of any kind related to this agreement, Lessee must furnish the Risk Manager with copies of all reports of any accidents within 10 days of the accident. II. ADDITIONAL REQUIREMENTS A. Applicable for paid employees, Lessee must obtain workers' compensation coverage through a licensed insurance company. The coverage must be written on a policy and endorsements approved by the Texas Department of Insurance. The workers' compensation coverage provided must be in an amount sufficient to assure that all workers' compensation obligations incurred by the Lessee will be promptly met. B. Lessee shall obtain and maintain in full force and effect for the duration of this Agreement, 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. Lessee shall be required to 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 Manager P.O. Box 9277 Corpus Christi, TX 78469-9277 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: Page 13 of 14 • List the City and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations, completed operation 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 must provide a waiver of subrogation in favor of the City; and • Provide 30 calendar days advance written notice directly to City of any, cancellation, non-renewal, material change or termination in coverage and not less than 10 calendar days advance written notice for nonpayment of premium. E. Within 5 calendar days of a cancellation, non-renewal, material change or termination 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 agreement. Failure to provide and to maintain the required insurance shall constitute a material breach of this agreement. F. In addition to any other remedies the City may have upon Lessee's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Lessee to remove the exhibit hereunder, and/or withhold any payment(s) if any, which become due to Lessee 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. I. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this agreement. 2024 Insurance Requirements Exhibit Parks and Recreation Dept. Lease Agreement for Padre Island Business Association 2/14/2024 Risk Management—Legal Dept. Version 2 Page 14 of 14