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HomeMy WebLinkAbout18329 ORD - 07/10/1984AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE AN AGREEMENT WITH 3RD COAST INVESTMENTS, INC. FOR PUBLIC/PRIVATE PARTNERSHIP KNOWN AS FURMAN PLAZA, INCLUDING THE REHABILITATION OF THE FURMAN BUILDING AND THE CONSTRUCTION OF A PARKING GARAGE CONTAINING A MINIMUM OF 305 SPACES; APPROPRIATING A TOTAL OF $600,000 FROM THE 5TH AND 7TH YEARS OF THE COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM; AND DECLARING AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Manager or his designee be authorized to execute an agreement with 3rd Coast Investments, Inc. for public/private partnership known as Furman Plaza, including the rehabilitation of the Furman Building and the construction of a parking garage containing a minimum of 305 spaces, a copy of which agreement is attached hereto and made a part hereof marked Exhibit flA SECTION 2. That there is hereby appropriated $600,000 from the 5th and 7th years of the Community Development Block Grant Program. SECTION 3. That upon written request of the Mayor or five Council members, copy attached, to find and declare an emergency due to the need for the efficient administration of City affairs by executing the abovementioned agreement at the earliest practicable date, such finding of an emergency is made and declared requiring suspension of the Charter rule as to consideration and voting upon ordinances or resolutions at three regular meetings so that this ordinacne is passed and shall take effect upon first reading as an emergency measure this the 10th day of July, 1984. ATTEST: ei t3 ecretary APPROVED:DAY DAY OF JULY, 1984 J. BRUCE AYCOCK, CITY ATTORNEY MAY THE CITY OF CORPUS CHRISTI, TEXAS 18329 MICROFILMED SEP 2 81984 STATE OF TEXAS § COUNTY OF NUECES § AGREEMENT KNOW ALL BE THESE PRESENTS: This AGREEMENT, made and entered into by the CITY OF CORPUS CHRISTI, TEXAS (hereinafter called "the City"), and 3RD COAST INVESTMENTS, INC., a Texas Corporation, or its Assignee, (hereinafter called "Developer"); WITNESSETH: WHEREAS, a public/private partnership between the City and Developer has been proposed for the development and operation of a major parking facility in the eastern quadrant of downtown Corpus Christi to be constructed in conjunction with Developer's renovation of the Furman Building (the proposed Furman Plaza and Public Parking Garage being hereinafter collectively called "the Project"); and WHEREAS, it is proposed that the parking garage project (hereinafter called "Parking Project"), estimated to cost $1,380,000.00 exclusive of land cost ($1,580,000.00 including land) and the Furman Building renovation project (hereinafter called "Furman Plaza Project"), estimated to cost $1,500,000.00 exclusive of acquisition cost ($2,070,000.00 including acquisition cost) be funded in part by previously allocated Community Development Block Grant Funds (CDBG Funds) and financed in part through the use of industrial revenue bonds; and WHEREAS, the Parking Project will make available to the general public a minimum of 305 parking spaces ground level and above, with the City having certain dedicated rights in and to 150 of such parking spaces, and the Furman Plaza Project will rehabilitate a building which, although designated a "preservation target" by the City's Landmark Commission, is currently before the City's Building Standards Board as a substandard, blighting influence on the downtown area; and WHEREAS, the City finds that the Project will provide needed parking and enhance economic development of the downtown area in accordance with previously established criteria and priorities set by the City Council relating to economic and business development, utilization of CDBG Funds, revitalization of the downtown area, and removal of blighted areas and substandard structures; and WHEREAS, the City further finds that the Project will benefit the City and its citizens in the following respects: 1. A substandard building and two essentially vacant lots will be rehabilitated and developed, thereby significantly increasing the economic development activity in the heart of the downtown area; 2. Parking well in excess of zoning requirements for the rehabilitated Furman Building will be provided, making a minimum of 305 parking spaces available to the public, of which 150 will be dedicated to the City; 3. The revenues to be received by the City from the Parking Project as hereinafter provided will come back into the CDBG Program as Program income available for other eligible CDBG Program activities, and, in addition, the Furman Plaza Project, as well as the Parking Project, will benefit the City in terms of sales and property taxes resulting from the Project, with the increased ad valorem taxes significantly benefitting the Corpus Christi Reinvestment Zone No. One; 4. The increased parking capacity provided by the Parking Project may provide added impetus for development of several other buildings and properties that have been purchased by other investment groups in the immediate area of the Furman Building; and WHEREAS, the City further finds that the use of industrial revenue bonds on the Project is a very appropriate use of industrial revenue bonds because the downtown area is a targeted redevelopment zone that falls within the Corpus Christi Reinvestment Zone No. One and the Central Improvement District, and because the Project is essentially an innovative "demonstration" project in an area of downtown Corpus Christi for which there is neither experience nor "comparables" upon which to predict the success or failure of the Project and therefore would be only marginally feasible if conventional lending rates were required; and WHEREAS, the Developer is able and desires to undertake the Project, and the City desires and is willing to provide its assistance, all as more fully provided herein: NOW, THEREFORE, in consideration of the premises, and in further consideration of the covenants, terms and undertakings herein expressed, the City and Developer agree as follows: 1. Upon the initiation of construction of the Parking Project, the City shall transfer to the account of Developer $600,000.00 of CDBG Funds, such Funds to be held, together with all other construction financing for the Parking Project and the Furman Plaza Project, by a financial intermediary as trustee in an interest-bearing account, the interest from which shall become part of the Developer's Project account. 2. The Developer and/or contractor shall provide adequate assurance of completion and protection from liens by the furnishing of a performance and payment bond or letter of credit, or by providing such other forms of assurance and protection as the City and Developer may agree upon. 3. The Developer shall dedicate to the City for the benefit of the public by appropriate easement or other instrument of dedication the irrevocable right and privilege to use and occupy at current rates 150 parking spaces in the Parking Project which shall be considered as part of the City's inventory of parking spaces from which the City shall receive revenue as hereinafter provided, all for a period of thirty (30) years. 4. The Developer shall, in addition to the parking spaces referred to in 3 above, provide public parking spaces, regardless of zoning requirements, in sufficient number to meet the following criteria based on a space utilization of the Furman Plaza Project of thirty percent (30%) restaurants, clubs and taverns and seventy percent (70%) retail and office, to -wit: restaurants, clubs and taverns - one space per 100 square feet; retail or office - one space per 200 square feet. 5(a) The dedication agreement referred to in 3 above shall provide that the Developer shall operate, maintain and provide security during normal business hours for the entire Parking Project during the term of such agreement and during such time remit to the City on a quarterly basis a portion of gross revenues from the Parking Project operation based on the ratio by which the 150 spaces dedicated to the City bears to the total number of parking spaces in the Parking Project as follows: (i) During the first 20 years, the City shall receive 100% of the product derived from multiplying a fraction whose numerator is 150 and whose denominator is the total parking spaces in the parking garage, times gross revenues from the Project. Thus, during the first 20 years of the Project, the City's revenue from the Project shall be based on the following formula: 150 x gross revenues x 100% = City's revenue total parking spaces (ii) Commencing with the 21st year of the Project and running through the 29th year of the Project, the City's percentage of the product derived from multiplying the fraction described in (i) above times gross revenues from the Project shall reduce 10% each year so that the City shall receive 90% of such product in year 21, 80% of such product in year 22, 70% of such product in year 23, and so on so that, for example, in the 24th and 29th years the City's revenue from the Project would be based on the following formula: year 24: 150 x gross revenues x 60% = City's revenue total parking spaces and in year 29: 150 x gross revenues x 10% = City's revenue total parking spaces (iii) Commencing with the 30th year and thereafter, the City shall receive none of the parking revenues from the Project nor have any interest whatsoever therein, except that such parking shall remain open to the public, and in recognition thereof shall execute an appropriate instrument in recordable form evidencing the termination of such dedication agreement. (b) Rates charged by Developer to users of the parking spaces to be developed hereunder shall be based on and comparable to rates charged users of parking spaces in other comparable, unmetered parking garages located in the central business district. For the purposes of this agreement, the boundaries of the central business district shall be co -extensive with the boundaries of the Corpus Christi Central Improvement District. (c) As used in subparagraph (a) above, the phrase "during normal business hours" contemplates a minimum of 40 hours per week during the usual and customary business hours on Mondays through Fridays, but nothing herein shall preclude Developer from making the parking garage open and available for public parking during other than normal business hours over and above the required minimum 40 hours per week. Developer agrees to cooperate with the City by operating the parking garage for such additional hours during which major events in the downtown area make reasonable parking demand evident. (d) If requested by the City, the Developer agrees that parking spaces may be made available for reserved parking for the City's use for its employees and in such event the numerator of the fraction used to calculate the City's share of revenue from the Parking Project under subparagraph (a) above shall be reduced by the number of parking spaces so set aside to the City under this subparagraph (d). (e) The dedication agreement shall provide that these provisions shall be covenants running with the land, binding on Developer's successors and assigns. 6. The City shall cause the Corpus Christi Industrial Development Corporation to issue industrial revenue bonds in the amount of $2,500,000.00, plus the ordinary expenses of such issue under its normal terms and conditions for the Project subject to all applicable state and federal statutes and shall issue its written commitment therefor within thirty (30) days from the date of this Agreement. The City shall provide staff assistance to Developer in connection with the preparation and marketing of the bond issue. 7. The Developer shall pay all normal and customary permit fees and taxes for the Project when due. 8. The Developer shall commence construction of the Parking Project within one hundred twenty (120) days from the date of this Agreement and complete the same within sixteen (16) months regardless of whether industrial revenue bonds shall have theretofore been issued, and to secure this obligation, Developer shall deliver to the City an irrevocable standby letter of credit on a national bank acceptable to the City in the amount of $10,000.00 drawn in favor of the City assuring Developer's performance under this paragraph and conditioned that in the event of Developer's failure to comply with the times of performance provided in this paragraph, then the City may draw on said letter of credit for the full amount as liquidated damages. Developer and the City agree that the actual damages which might be sustained by the City by reason of the failure of Developer to comply with the time constraints established in this paragraph 8 are uncertain and would be difficult to ascertain and that said sum of $10,000.00 would be as to each of them reasonable as liquidated damages. Should Developer fail to substantially complete the parking garage within 24 months from the date of this Agreement, then the initial $600,000.00 payment by the City shall be refunded to the City, plus interest calculated at 10% per annum. 9. Developer shall from time to time duly pay and discharge, or cause to be discharged or paid, when the same become due, all taxes, assessments, and other governmental charges which are lawfully imposed upon the Project and which, if unpaid, may by law become a lien or encumbrance upon the Project and thereby impede or otherwise adversely affect the holding of the Project for its intended uses. 10. Developer shall at all times keep the Project and related premises in good and safe condition and repair in the occupancy, maintenance, and operation thereof. Developer shall comply with all laws, ordinances, codes and regulations applicable thereto. Developer shall not permit, commit, or suffer any waste or impairment of the Project or any part thereof. 11. Developer shall submit to the City and the Secretary of Housing and Urban Development ("HUD") such data, reports, records, and documents relating to the operation of the Parking Project as the City and HUD request in order to permit the City and HUD to determine whether the operation of the Parking Project is in accordance with this Agreement and the rules and regulations of HUD. 12. Developer agrees to insure and keep insured the Parking Project against loss or damage by fire, windstorm, and any other hazard or hazards as may be reasonably required from time to time by the City during the term of the dedication agreement referred to in paragraph 3 above to the extent of the full insurable value of said improvements, in such form and with such insurance company or companies as may be approved by the City, and to deliver to the City the policies of such insurance, having attached to said policies such indemnity clause as the City shall direct. Developer agrees to deliver renewals of such policies to the City at least ten (10) days before any such insurance policies shall expire. Any proceeds which the City may receive under any such policy or policies may be applied by the City, at its option, to reduce the portion of CDBG Funds, if any, not yet recovered from its share of revenues from the Parking Project in such manner as the City may elect, or the City will permit Developer to use said proceeds to repair or replace all improvements damaged or destroyed and covered by said policy at the request of Developer. 13. Developer agrees to indemnify and forever save harmless the City, its officers, agents, and employees, from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs, attorneys' fees, and fees and expenses for expert consultants, for or on account of any injury to any person, or death at any time resulting from such injury, or any damage to property, which may arise or which may be alleged to have arisen out of or in connection with developer's activities under this Agreement. With respect to the Parking Project, Developer agrees to secure and maintain at its own expense throughout the term of the dedication agreement referred to in paragraph 3 a policy or policies of comprehensive general liability insurance naming the City as an additional insured with minimum limits of $500,000.00 for bodily injury or death per individual, $500,000.00 for bodily injuries or death per occurrence, and $100,000.00 for property damage. Said insurance policies shall also include coverage within the above limits for any personal injuries which may be alleged other than bodily injury. On each policy the City shall be named as an additional insured, and certificates of insurance for all such policies shall be furnished to the City and maintained throughout the term of this Agreement. Each certificate must provide for thirty (30) days notice by the insurer to the City prior to any cancellation of such policies. Developer also agrees to maintain adequate workers compensation insurance as required by law. 14. Developer agrees that it will record all financial transactions according to generally accepted accounting procedures and that it will provide any and all information pertinent to its operations and revenues from the Parking Project as the City may from time to time request for audit purposes. 15. Developer further agrees to comply with the following federal requirements and regulations: (a) to conduct its activities with regard to this Agreement in accordance with OMB Circular A-102, A-87, A-122, and HUD's Applicability to Community Development Block Grants with reference to Attachments B, C, and 0 thereof; (b) to comply with paragraph 570.506 of the Federal Register with reference to program income; (c) to comply with all applicable Equal Opportunity regulations and specifically, Executive Order 11246, as amended, and Section 3 of the Housing and Urban Development Act of 1965, as amended; (d) to comply with any other rule or regulation promulgated by HUD during the term of this Agreement which is directly related to Community Development Block Grant funded activities, when so informed in writing by the City; (e) to comply with Section 109 of the Housing and Community Development Act of 1974, and the regulations issued pursuant thereto (24 CFR 570.601), which provide that no person in the United States shall, on the grounds of race, color, national origin, or sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any programs or activity funded in whole or in part with funds provided by the Community Development Block Grant Program; (f) to not discriminate against any applicant for employment because of race, color, religion, sex or national origin and take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex or national origin. (Such action shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, lay-off, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.); (g) to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of the aforementioned nondiscrimination clause, and in all solicitations or advertisements for employees placed by or on behalf of Developer, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin; (h) to agree that pursuant to the regulations promulgated pursuant to Section 3 of the Housing and Urban Development Act of 1965, as amended, 12 U.S.C. 1701u, the following assurances of compliance entitled "Training, Employment, and Contracting Opportunities for Businesses and Lower Income Persons," shall be included in each Section 3 covered contract or agreement resulting from this Agreement: (i) to render of the greatest extent feasible opportunities for training and employment to lower income residents of the Project area and award contracts for work in connection with the Project to business concerns which are located in or owned in substantial part by persona residing in the area of the Project; (ii) to carry out the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary set forth in 24 CFR Part 135 (published in 38 Federal Register 29220, dated October 23, 1973), and all applicable rules and orders relative to this Agreement which include, but are not limited to, development and implementation of an affirmative action plan for utilizing business concerns located within or owned in substantial part by person residing in the area of the Project, the making of a good faith effort, as defined by the regulations, to provide training, employment, and business opportunities required by Section 3, and incorporation of the "Section 3 clause" specified by Section 135.20(b) of the regulations in all contracts for work in connection with the Project. Developer certifies and agrees that it is under no contractual or other disability which would prevent it from complying with these requirements; (iii) to comply with the provisions of Section 3, the regulations set forth in 24 CFR Part 135, and all applicable rules and regulations set forth and orders of the Secretary issued thereunder prior to approval of this Agreement, which shall be a condition of the federal financial assistance provided to the Project, binding upon Developer, its contractors and subcontractors, its successors, and assigns to the sanctions specified by this Agreement, and to such sanctions as are specified by 24 CFR Section 135.135. 16. The Developer and the City further agree to cooperate fully in connection with this public/private partnership and to take such steps and actions and provide such assistance to each other as may be reasonable and appropriate under the circumstances; provided, however, nothing contained in this paragraph 16 shall ever be construed as obligating the City to provide any direct financial assistance not otherwise provided for in or contemplated by this proposal or formally approved by subsequent Council action. 17. It is understood by both parties hereto that 3rd Coast Investments, Inc., contemplates the formation of a developer entity for the Project, to be called Furman Plaza, Ltd., a Texas Limited Partnership, in which 3rd Coast Investments, Inc., will be the Managing General Partner, and it is agreed that this Agreement may be assigned by 3rd Coast Investments, Inc., to Furman Plaza, Ltd., or such other developer entity formed by 3rd Coast Developers, Inc., should the name Furman Plaza, Ltd., not be available. It is further agreed that as used in this Agreement the term "Developer" shall apply to 3rd Coast Investments, Inc., or such other developer entity in which 3rd Coast Investments, Inc., may be Managing General Partner and to whom this Agreement may be assigned. 18. Notwithstanding any other provisions hereof, should Developer breach any section or provision of this Agreement, the measure of damages recoverable by the City on account of such breach shall be limited to the $600,000.00 of CDBG Funds advanced hereunder and the $10,000.00 specified under paragraph 8 above. The City agrees, however, that prior to declaring a breach of any section or provision of this Agreement, it shall give written notice to Developer, which written notice shall include: (a) a statement of the nature of the breach, and (b) the action required by Developer to cure such breach and the time period within which such required action must be taken by Developer. Developer shall have a period of not less than thirty (30) days after receipt of such written notice within which to cure any breach. 19. All notices given pursuant to the provisions of this Agreement shall be made in writing and delivered in person or mailed, postage prepaid, addressed to the applicable party as follows: FOR CITY: Ezequiel P. Elizondo Department of Housing and Community Development City of Corpus Christi 302 S. Shoreline Drive P. 0. Box 9277 Corpus Christi, Texas 78469 FOR DEVELOPER: Armando J. DeLeon 3rd Coast Investments, Inc. P. 0. Box 18302 Corpus Christi, Texas 78418 20. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the requirements and terms of applicable law. EXECUTED in duplicate originals this day of 1984, both of equal force and effect. ATTEST: CITY OF CORPUS CHRISTI By By Bill G. Read Edward A. Martin City Secretary City Manager APPROVED day of , 1984 J. BRUCE AYCOCK, CITY ATTORNEY By By Assistant City Attorney W. Thomas Utter Assistant City Manager 3RD COAST INVESTMENT, INC. By Its - ,CITY OF CORPUS CHRISTI, TEXAS CERPIFICATION OF FUNDS ' (City Charter Article IV Section 21) July 10, 1984 I certify to the City Council that $ 600,000 , the amount required for the contract, agreement, obligation or expenditures oontenplated in the above and foregoing ordinance is in the Treasury of the City of Corpus Christi to the credit of: Fund NO. and Name 162 Federal/State Grant 162/152/807.03/502 ($400,000) 5th Year CDBG Project No. 162/152/807.05/502 ($200,000) 7th Year CDBG Project Nave Downtown Parking Garage frau which it is proposed to be drawn, and such money is not appropriated for any other purpose. - ?—(v , 19c 7'• Do mance FIN 2-55 Revised 7/31/69 Sol• ° � — TOO) o-7rD. D0 off. o /Soo coo. oo 1//o/gL 2&e,t2 4 atd. /J829. AGREEMENT STATE OF TEXAS § KNOW ALL BY THESE PRESENTS: COUNTY OF NUECES § This AGREEMENT, made and entered into by the CITY OF CORPUS CHRISTI, TEXAS (hereinafter called "the City"), and 3RD COAST INVESTMENTS, INC., a Texas Corporation, or its Assignee, (hereinafter called "Developer"); W ITNESSET H: WHEREAS, a public/private partnership between the City and Developer has been proposed for the development and operation of a major parking facility in the eastern quadrant of downtown Corpus Christi to be constructed in conjunction with Developer's renovation of the Furman Building (the proposed Furman Plaza and Public Parking Garage being hereinafter collectively called "the Project"); and WHEREAS, it is proposed that the parking garage project (hereinafter called "Parking Project"), estimated to cost $1,380,000.00 ex- clusive of land cost ($1,580,000.00 including land) and the Furman Building renovation project (hereinafter called "Furman Plaza Project"), estimated to cost $1,500,000.00 exclusive of acquisition cost ($2,070,000.00 including acquisition cost) be funded in part by previously allocated Community Development Block Grant Funds (CDBG Funds) and financed in part through the use of industrial revenue bonds; and WHEREAS, the Parking Project will make available to the general public a mimimum of 305 parking spaces ground level and above, with the City having certain dedicated rights in and to 150 of such parking spaces, and the Furman Plaza Project will rehabilitate a building which, although desig- nated a "preservation target" by the City's Landmark Commission, is current- ly before the City's Building Standards Board as a substandard, blighting influence on the downtown area; and WHEREAS, the City finds that the Project will provide needed park- ing and enhance economic development of the downtown area in accordance with previously established criteria and priorities set by the City Council re- lating to economic and business development, utilization of CDBG Funds, revitalization of the downtown area, and removal of blighted areas and substandard structures; and WHEREAS, the City further finds that the Project will benefit the City and its citizens in the following respects: 1. A substandard building and two essentially vacant lots will be rehabilitated and developed, thereby significantly increasing the economic development activity in the heart of the downtown area; 2. Parking well in excess of zoning requirements for the rehabilitated Furman Building will be provided, making a minimum of 305 parking spaces available to the public, of which 150 will be dedicated to the City; 3. The revenues to be received by the City from the 'Parking Project as hereinafter provided will come back into the CDBG Program as Program income available for other eligible CDBG Program activities, and, in addition, the Furman Plaza Project, as well as the Parking Project, will benefit the City in terms of sales and property taxes resulting from the Project, with the increased ad valorem taxes significantly benefiting the Corpus Christi Reinvestment Zone No. One; 4. The increased parking capacity provided by the Parking Project may provide added impetus for development of several other buildings and properties that have been purchased by other investment groups in the immediate area of the Furman Building; and WHEREAS, the City further finds that the use of industrial revenue bonds on this Project is a very appropriate use of industrial revenue bonds because the downtown area is a targeted redevelopment zone that falls within the Corpus Christi Reinvestment Zone No. One and the Central Improvement District, and because the Project is essentially an innovative "demonstra- tion" project in an area of downtown Corpus Christi for which there is neither experience nor "comparables" upon which to predict the success or failure of the Project and therefore would be only marginally feasible if conventional lending rates were required; and WHEREAS, the Developer is able and desires to undertake the Project, and the City desires and is willing to provide its assistance, all as more fully provided herein: NOW, THEREFORE, in consideration of the premises, and in further consideration of the covenants, terms and undertakings herein expressed, the City and Developer agree as follows: 1. Upon the initiation of construction of the Parking Project, the City shall transfer to the account of Developer $600,000.00 of CDBG Funds, such Funds to be held, together with all other construction financing for the Parking Project and the Furman Plaza Project, by a financial inter- mediary as trustee in an interest-bearing account, the interest from which shall become part of the Developer's Project account. 2. The Developer and/or contractor shall provide adequate assurance of completion and protection from liens by the furnishing of a performance and payment bond or letter of credit, or by providing such other forms of assurance and protection as the City and Developer may agree upon. 3. The Developer shall dedicate to the City for the benefit of the public by appropriate easement or other instrument of dedication the ir- revocable right and privilege to use and occupy at current rates 150 parking spaces in the Parking Project which shall be considered as part of the City's inventory of parking spaces from which the City shall receive revenue as hereinafter provided, all for a period of thirty (30) years. 4. The Developer shall, in addition to the parking spaces referred to in 3 above, provide public parking spaces, regardless of zoning requirements, in sufficient number to meet the following criteria based on a -2- space utilization of the Furman Plaza Project of thirty percent (30%) restaurants, clubs and taverns and seventy percent (70%) retail and office, to -wit: restaurants, clubs and taverns - one space per 100 square feet; retail or office - one space per 200 square feet. 5.(a) The dedication agreement referred to in 3 above shall pro- vide that the Developer shall operate, maintain and provide security during normal business hours for the entire Parking Project during the term of such agreement and during such time remit to the City on a quarterly basis a por- tion of gross revenues from the Parking Project operation based on the ratio by which the 150 spaces dedicated to the City bears to the total number of parking spaces in the Parking Project as follows: (i) During the first 20 years, the City shall receive 100% of the product derived from multiplying a fraction whose numerator is 150 and whose denominator is the total parking spaces in the parking garage, times gross revenues from the Project. Thus, during the first 20 years of the Project, the City's revenue from the Project shall be based on the following formula: 150 total parking spaces x gross revenues x 100% = City's revenue (ii) Commencing with the 21st year of the Project and run- ning through the 29th year of the Project, the City's percentage of the pro- duct derived from multiplying the fraction described in (i) above times gross revenues from the Project shall reduce 10% each year so that the City shall receive 90% of such product in year 21, 80% of such product in year 22, 70% of such product in year 23, and so on so that, for example, in the 24th and 29th years the City's revenue from the Project would be based on the following formula: year 24: 150 total parking spaces and in year 29: 150 total parking spaces x gross revenues x 60% = City's revenue x gross revenues x 10% = City's revenue (iii) Commencing with the 30th year and thereafter, the City shall receive none of the parking revenues from the Project nor have any in- terest whatsoever therein, except that such parking shall remain open to the public, and in recognition thereof shall.execute an appropriate instrument in recordable form evidencing the termination of such dedication agreement. (b) Rates charged by Developer to users of the parking spaces to be developed hereunder shall be based on and comparable to rates charged users of parking spaces in other comparable, unmetered parking garages located in the central business district. For the purposes of this agree- ment, the boundaries of the central business district shall be co -extensive with the boundaries of the Corpus Christi Central Improvement District. -3- (c) As used in subparagraph (a) above, the phrase '"during normal business hours" contemplates a minimum of 40 hours per week during the usual and customary business hours on Mondays through Fridays, but noth- ing herein shall preclude Developer from making the parking garage open and available for public parking during other than normal business hours over and above the required mimimum 40 hours per week. Developer agrees to co- operate with the City by operating the parking garage for such additional hours during which major events in the downtown area make reasonable parking demand evident. (d) If requested by the City, the Developer agrees that parking spaces may be made available for reserved parking for City uses and in such event the numerator of the fraction used to calculate the City's share of revenue from the Parking Project under subparagraph (a) above shall be reduced by the number of parking spaces so set aside to the City under this subparagraph (d). (e) The dedication agreement shall provide that these pro- visions shall be covenants running with the land, binding on Developer's successors and assigns. 6. The City shall cause the Corpus Christi Industrial Development Corporation to issue industrial revenue bonds in the amount of $2,500,000.00, plus the ordinary expenses of such issue under its normal terms and conditions for the Project subject to all applicable state and federal statutes and shall issue its written commitment therefor within thirty (30) days from the date of this Agreement. The City shall provide staff assistance to Developer in connection with the preparation and marketing of the bond issue. 7. The Developer shall pay all normal and customary permit fees and taxes for the Project when due. 8. The Developer shall commence construction of the Parking Project within one hundred twenty (120) days from the date of this Agreement and complete the same within sixteen (16) months regardless of whether in- dustrial revenue bonds shall have theretofore been issued, and to secure this obligation, Developer shall deliver to the City an irrevocable standby letter of credit on a national bank acceptable to the City in the amount of $10,000.00 drawn in favor of the City assuring Developer's performance under this paragraph and conditioned that in the event of Developer's failure to comply with the times of performance provided in this paragraph, then the City may draw on said letter of credit for the full amount as liquidated damages. Developer and the City agree that the actual damages which might be sustained by the City by reason of the failure of Developer to comply with the time constraints established in this paragraph 8 are uncertain and would be difficult to ascertain and that said sum of $10,000.00 would be as to each of them reasonable as liquidated damages. Should Developer fail to substantially complete the parking garage within 24 months from the date of this Agreement, then the initial $600,000.00 payment by the City shall be refunded to the City, plus interest calculated at 10% per annum. 9. Developer shall from time to time duly pay and discharge, or cause to be discharged or paid, when the same become due, all taxes, assess- ments, and other governmental charges which are lawfully imposed upon the Project and which, if unpaid, may by law become a lien or encumbrance upon the Project and thereby impede or otherwise adversely affect the holding of the Project for its intended uses. -4- 10. Developer shall at all times keep the Project and related premises in good and safe condition and repair in the occupancy, mainte- nance, and operation thereof. Developer shall comply with all laws, ordinances, codes and regulations applicable thereto. Developer shall not permit, commit, or suffer any waste or impairment of the Project or any part thereof. 11. Developer shall submit to the City and the Secretary of Housing and Urban Development ("HUD") such data, reports, records, and docu- ments relating to the operation of the Parking Project as the City and HUD request in order to permit the City and HUD to determine whether the opera- tion of the Parking Project is in accordance with this Agreement and the rules and regulations of HUD. 12. Developer agrees to insure and keep insured the Parking Project against loss or damage by fire, windstorm, and any other hazard or hazards as may be reasonably required from time to time by the City during the term of the dedication agreement referred to in paragraph 3 above to the extent of the full insurable value of said improvements, in such form and with such insurance company or companies as may be approved by the City, and to deliver to the City the policies of such insurance, having attached to said policies such indemnity clause as the City shall direct. Developer agrees to deliver renewals of such policies to the City at least ten (10) days before any such insurance policies shall expire. Any proceeds which the City may receive under any such policy or policies may be applied by the City, at its option, to reduce the portion of CDBG Funds, if any, not yet recovered from its share of revenues from the Parking Project in such manner as the City may elect, or the City will permit Developer to use said pro- ceeds to repair or replace all improvements damaged or destroyed and covered by said policy at the request of Developer. 13. Developer agrees to indemnify and forever save harmless the City, its officers, agents, and employees, from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs, attorneys' fees, and fees and expenses for expert consultants, for or on account of any injury to any person, or death at any time resulting from such injury, or any damage to property, which may arise or which may be alleged to have arisen out of or in connection with Developer's activities under this Agreement. With respect to the Parking Project, Developer agrees to secure and maintain at its own expense throughout the term of the dedica- tion agreement referred to in paragraph 3 a policy or policies of compre- hensive general liability insurance naming the City as an additional insured with minimum limits of $500,000.00 for bodily injury or death per individ- ual, $500,000.00 for bodily injuries or death per occurrence, and $100,000.00 for property damage. Said insurance policies shall also include coverage within the above limits for any personal injuries which may be alleged other than bodily injury. On each policy the City shall be named as an additional insured, and certificates of insurance for all such policies shall be furnished to the City and maintained throughout the term of this Agreement. Each certificate must provide for thirty (30) days notice by the insurer to the City prior to any cancellation of such policies. Developer also agrees to maintain adequate workers compensation insurance as required by law. 14. Developer agrees that it will record all financial transactions according to generally accepted accounting procedures and that it will provide any and all information pertinent to its operations and -5- revenues from the Parking Project as the City may from time to time request for audit purposes. 15. Developer further agrees to comply with the following federal requirements and regulations: (a) to conduct its activities with regard to this Agreement in accordance with OMB Circular A-102, A-87, A-122, and HUD's Applicability to Community Development Block Grants with reference to Attachments 8, C, and 0 thereof; (b) to comply with paragraph 570.506 of the Federal Register with reference to program income; (c) to comply with all applicable Equal Opportunity regulations and specifically, Executive Order 11246, as amended, and Section 3 of the Housing and Urban Development Act of 1965, as amended; (d) to comply with any other rule or regulation promulgated by HUD during the term of this Agreement which is directly related to Community Development Block Grant funded activities, when so informed in writing by the City; (e) to comply with Section 109 of the Housing and Community Development Act of 1974, and the regulations issued pursuant thereto (24 CFR 570.601), which provide that no person in the United States shall, on the grounds of race, color, national origin, or sex, be excluded from participa- tion in, be denied the benefits of, or be subjected to discrimination under, any programs or activity funded in whole or in part with funds provided by the Community Development Block Grant Program; (f) to not discriminate against any applicant for employment because of race, color, religion, sex, or national origin and take affirma- tive action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex or national origin. (Such action shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or re- cruitment advertising, lay-off, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.); (g) to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of the aforementioned nondiscrimination clause, and in all solicitations or adver- tisements for employees placed by or on behalf of Developer, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin; (h) to agree that pursuant to the regulations promulgated pursuant to Section 3 of the Housing and Urban Development Act of 1965, as amended, 12 U.S.C. 1701u, the following assurances of compliance entitled "Training, Employment, and Contracting Opportunities for Businesses and Lower Income Persons," shall be included in each Section 3 covered contract or agreement resulting from this Agreement: (i) to render of the greatest extent feasible opportunities for training and employment to lower income residents of the Project area and award contracts for work in connection with the Project to business concerns which are located in or owned in substantial part by -6- persons residing in the area of the Project; (ii) to carry out the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary set forth in 24 CFR Part 135 (published in 38 Federal Register 29220, dated October 23, 1973), and all applicable rules and orders relative to this Agreement which in- clude, but are not limited to, development and implementation of an affirma- tive action plan for utilizing business concerns located within or owned in substantial part by persons residing in the area of the Project, the making of a good faith effort, as defined by the regulations, to provide training, employment, and business opportunities required by Section 3, and incorpora- tion of the "Section 3 clause" specified by Section 135.20(b) of the regula- tions in all contracts for work in connection with the Project. Developer certifies and agrees that it is under no contractual or other disability which would prevent it from complying with these requirements; (iii) to comply with the provisions of Section 3, the regulations set forth in 24 CFR Part 135, and all applicable rules and regu- lations set forth and orders of the Secretary issued thereunder prior to approval of this Agreement, which shall be a condition of the federal financial assistance provided to the Project, binding upon Developer, its contractors and subcontractors, its successors, and assigns to the sanctions specified by this Agreement, and to such sanctions as are specified by 24 CFR Section 135.135. 16. The Developer and the City further agree to cooperate fully in connection with this public/private partnership and to take such steps and actions and provide such assistance to each other as may be reasonable and appropriate under the circumstances; provided, however, nothing contained in this paragraph 16 shall ever be construed as obligating the City to provide any direct financial assistance not otherwise provided for in or contem- plated by this proposal or formally approved by subsequent Council action. 17. It is understood by both parties hereto that 3rd Coast Investments, Inc., contemplates the formation of a developer entity for the Project, to be called Furman Plaza, Ltd., a Texas Limited Partnership, in which 3rd Coast Investments, Inc., will be the Managing General Partner, and it is agreed that this Agreement may be assigned by 3rd Coast Investments, Inc., to Furman Plaza, Ltd., or such other developer entity formed by 3rd Coast Developers, Inc., should the name Furman Plaza, Ltd., not be avail- able. It is further agreed that as used in this Agreement the term "Developer" shall apply to 3rd Coast Investments, Inc., or such other developer entity in which 3rd Coast Investments, Inc., may be Managing General Partner and to whom this Agreement may be assigned. 18. Notwithstanding any other provisions hereof, should Developer breach any section or provision of this Agreement, the measure of damages recoverable by the City on account of such breach shall be limited to the $600,000.00 of CDBG Funds advanced hereunder and the $10,000.00 specified under paragraph 8 above. The City agrees, however, that prior to declaring a breach of any section or provision of this Agreement, it shall give writ- ten notice to Developer, which written notice shall include: (a) a state- ment of the nature of the breach, and (b) the action required by Developer to cure such breach and the time period within which such required action must be taken by Developer. Developer shall have a period of not less than thirty (30) days after receipt of such written notice within which to cure any breach. -7- 19. All notices given pursuant to the provisions of this Agreement shall be made in writing and delivered in person or mailed, postage prepaid, addressed to the applicable party as follows: FOR CITY: FOR DEVELOPER: Ezequiel P. Elizondo Department of Housing and Community Development City of Corpus Christi, Texas 302 S. Shoreline Drive P. 0. Box 9277 Corpus Christi, Texas 78469 Armando J. DeLeon 3rd Coast Investments, Inc. P. 0. Box 18302 Corpus Christi, Texas 78418 20. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to conform to the requirements and terms of applicable law. EXECUTED in duplicate originals this `f_1. day of `jl.c-ck-1,,-6(.44-,. 1984, both of equal force and effect. ATTEST: CITY OF CORPUS CHRISTI By.�- (,c�l-�-L• /City 'Secretary y'Secretary APPROVEDN6kLkJF�� , 1984: J. BRUCE AYCOCK, CITY ATTORNEY By n�C Assista ty Attorney L (9 • /S7 5 AU IUYIci BY c o ciL =7G -2Y„ de.,2 SECR TARP By Edward A. Marti , City Manager By W. Thomas Utter Assistant City Manager 3RD COAST INVESTMENTS, INC. By it y / �'•/ Its i i : • •�<.: = -8- Corpus, Christi, T tD day of , 1981. TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance or resolution, an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances or resolutions at three regular meetings; I/we, therefore, request that you suspend said Charter rule and pass this ordinance or resolution finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Respectfully, MAYO Council Members E CITY OF CORPUS CHRISTI, TEXAS The above ordinance was passed by the following Luther Jones Betty N. Turner David Berlanga, Sr. Welder Brown Leo Guerrero Dr. Charles W. Kennedy Joe McComb Frank Mendez Mary Pat Slavik vote: 18329