HomeMy WebLinkAbout021348 ORD - 03/17/1992AN ORDINANCE
AUTHORIZING THE EXECUTION OF A SIXTY -YEAR USE AGREEMENT WITH
THE CORPUS CHRISTI BOTANICAL SOCIETY FOR THE USE OF 180.85 ACRES OF
PARK LAND ADJACENT TO OSO CREEK AS A BOTANICAL GARDEN; AND
PROVIDING FOR PUBLICATION.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI,
TEXAS:
SECTION 1. That the City Manager is hereby authorized to execute a sixty -year use
agreement with the Corpus Christi Botanical Gardens for use of 180.85 acres of park land adjacent
to Oso Creek as a botanical garden, a substantial copy of which is attached hereto and made a part
hereof, marked Exhibit "A."
SECTION 2. 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.
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021348
WILMLU
CORPUS CHRISTI BOTANICAL SOCIETY
USE AGREEMENT
THE STATE OF TEXAS §
COUNTY OF NUECES §
WHEREAS, the City of Corpus Christi ("City") owns 180.85
acres of land adjacent to Oso Creek; and
WHEREAS, the Corpus Christi Botanical Society, Inc., a Texas
non-profit corporation ("Botanical Society") desires to
construct, operate, and maintain a botanical garden, including
without limitation, nature trails, structured gardens,
greenhouses, office space, etc., on said 180.85 acres of City
owned land; and
WHEREAS, City is agreeable to permitting Botanical Society
to use said 180.85 acres to construct, operate, and maintain a
Botanical Garden.
NOW, THEREFORE, the parties agree as follows:
I.
TERM
The term of this Use Agreement shall be for 60 years.
II.
PREMISES
The property which Botanical Society shall be permitted to
develop under this Use Agreement is defined by metes and bounds
on Exhibit "A" which is attached hereto and made a part hereof
for all purposes ("Property").
The Property can only be used by Botanical Society, and any
successor in interest, for botanical garden purposes.
It is contemplated that City and Botanical Society will
construct permanent improvements such as parking lots, restrooms,
buildings, greenhouses, etc. For purposes of this Agreement, all
such permanent improvements shall be called "Fixed Assets."
Botanical Society will have on the Property such items as
equipment, plants, plantings, furniture, etc., which for purposes
of this Agreement will be called "Personal Property."
III.
TEXAS PARKS AND WILDLIFE APPROVAL
The Texas Department of Parks and Wildlife ("TDP&W") shall
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EXHIBIT "A"
review and approve this Use Agreement. If the concept is
proposed to be changed, TDP&W shall review and approve all such
conceptual changes.
IV.
MASTER PLAN
Botanical Society will provide at its expense prior to
making any physical improvements to the Property a Master Plan
for development of the Botanical Gardens. Upon completion of the
Master Plan, it must be approved by the City of Corpus Christi,
TDP&W, and the Trustees of the Botanical Society. Said Master
Plan shall become the Master Plan for the purposes of this
Agreement. It is hereby agreed that substantial modifications of
the Master Plan and any additional Master Plan must first be
approved in writing by the City before such modifications or
Plans shall be put into effect; provided, however, that the City
hereby expressly acknowledges, confirms and consents to the
development of the Property contemplated by the Master Plan as
approved. The Master Plan shall provide without limitation a
site plan with all facilities and infrastructure.
City and TDP&W retain the right to review and approve all
construction plans, specifications, and documents prior to start
of construction.
v.
CONSTRUCTION
Botanical Society shall have the sole and full
responsibility for preparing the plans, advertising for bids,
supervising construction, and accepting all improvements when
completed.
The cost of water and gas utility extensions to the Property
will be the responsibility of the City. The cost of
construction, streets other than Oso Creek Parkway, utility
extensions to the Property other than water and gas, platting
fees, permits, licenses, landscaping, irrigation, and all other
site improvements shall be borne entirely by Botanical Society.
It is understood that City does not assume and will not in any
way be responsible for any of the financial obligations incurred
or created by Botanical Society in connection with the
construction of any improvements on the Property. Botanical
Society agrees to save and hold the City harmless for any and all
charges, claims, or liability whatsoever as provided below.
Any building, fixture, or appurtenance placed on the
Property shall, except as provided elsewhere herein, become the
Property of City, upon expiration or termination of this Use
Agreement.
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Botanical Society agrees that in construction upon and
operation of the Property, it will promptly comply with and
fulfill all ordinances, regulations, and codes of Federal, State,
County, City, and other governmental agencies applicable to the
Property, 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 Property during the term
of this Use Agreement, at Botanical Society's sole expense and
cost.
Botanical Society shall not allow any type of lien to be
placed against the Property itself. Botanical Society shall not
allow any type of lien to be placed against any building or
structure constructed on the Property without the prior written
approval of City Council.
In the event such approval is obtained, the lien against the
building or structure must contain the following language:
"The lending institution understands that the lien for this
loan is not effective against the Property, which is owned
by the City, but is only effective against the building or
structure being constructed. The lending institution
further understands that the use of the Property, and any
building or structure located thereon, is limited to use as
a botanical garden and no other use may be made of the
Property or buildings or structures constructed thereon."
or such other, similar, language as may be approved by the City
Attorney.
VI.
RENT
It being understood that the consideration for this
Agreement is in the premises and the mutual promises expressly
set forth herein, a consideration of One Dollar ($1) shall be due
and owing from the Botanical Gardens for the term of this Use
Agreement.
VII.
FUND RAISING
The Botanical Society agrees to use its best efforts to
secure gifts of trees, shrubs and plants, as well as to secure
gifts of cash, services and endowments for the purpose of
fulfilling its obligations hereunder. Any funds raised for the
Botanical Gardens by the Botanical Society shall be used for the
purpose of equipping and maintaining the Botanical Gardens, for
the improvement of real property, for the general maintenance of
the Botanical Gardens, or for any other related purpose
designated by the Trustees of the Botanical Society.
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VIII.
MAINTENANCE
Botanical Society shall develop and maintain the Botanical
Gardens, including all and any cultivated collections and other
personal property therein, as well as all improvements, including
all improvements made with the TDP&W grant, in a reasonably clean
and sanitary condition and state of repair. Botanical Society is
hereby authorized to trade or sell cultivated collections,
plantings, cuttings, etc.
IX.
ADMISSION POLICIES
The Botanical Society agrees that the Botanical Gardens
shall be open to the public within such reasonable hours as shall
be established and reviewed from time to time by the Botanical
Society and the City.
Any greenhouses, conservatories and other buildings in the
Botanical Gardens having collections or exhibits of plants,
libraries or lecture rooms, shall be open to the general public
within such reasonable hours as shall be established from time to
time and agreed upon by the Botanical Society.
The Botanical Society may charge reasonable admission fees
for entrance to the Botanical Gardens, for special exhibits, and
for programs and activities at the Botanical Gardens. Any such
fees must be used for the development of or maintenance and
operation of the Botanical Gardens; provided that Botanical
Society shall not be required to expend such proceeds in a manner
which would violate §501 (c) (3) of the Internal Revenue Code of
1954 as amended. Any fee schedule or modification thereof shall
be reviewed and approved by TDP&W. The Botanical Society may
establish and enforce, any reasonable rules and regulations and
amendments thereof regarding behavior of visitors to assure the
well-being of the plants, as well as the safety, comfort and
quality of experience for visitors to the Botanical Gardens.
The Botanical Society agrees that it shall make its
facilities available to the extent that its resources permit, and
as may be compatible with the proper administration of the
Botanical Gardens and with the interests of the general public,
to teachers and students in public or private schools and other
institutions of learning in the City, for the study of botany and
horticulture. The Botanical Society agrees, for the purposes
described above, to permit teachers and professors authorized by
such institutions to bring students to the Botanical Gardens for
instruction at such times and pursuant to such rules as the
Botanical Society may determine.
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X.
EMPLOYEES
Botanical Society shall employ sufficient staff to maintain
the landscaping and unimproved areas, to keep the Botanical
Gardens open during the hours and on the days established, to
provide workshops and tours, etc. The unimproved areas shall be
maintained in such a manner that they do not present a health or
safety hazard, especially to visitors to or employees of the
Botanical Gardens, or to City employees, agents, contractors, or
representatives. Such employees will be employees of the
Botanical Society, which may set their compensation and benefits.
City requires that Botanical Society carry workers compensation
insurance to protect the City. City shall not direct or
supervise Botanical Society's staff.
XI.
GENERAL PROVISIONS
1. No overhead installation of utilities will be allowed.
2. The Property and all buildings and structures
constructed on the Property, including without
limitation, all bathrooms will be accessible for
handicapped persons.
3. Botanical Society may erect signage in compliance with
City Code of Ordinances at its expense.
4. The Botanical Society may provide security for the
Property, including fencing and other protective
structures contemplated by the Plan, and private
security officers with the power of arrest in
compliance with the laws of Texas and municipal
ordinances. Control of vehicular and pedestrian
traffic, for both access and exit to the Botanical
Gardens, shall be under the direction and control of
the Botanical Society.
XII.
UTILITIES
The Botanical Society agrees to furnish at its sole expense
water, electricity and any other utilities sufficient to service
the maintenance and operation of the Botanical Garden and
improvements existing on the Property.
XIII.
SAFETY
The Botanical Society shall immediately correct any unsafe
condition of the Property, as well as any unsafe practices
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occurring thereon. Botanical Society shall obtain (at the
expense of the ill or injured party) emergency medical care for
any member of the public who is in need thereof, because of
illness or injury occurring on the Property. Botanical Society
shall cooperate fully with City in the investigation of any
accidental injury or death occurring on the Property, including a
prompt report thereof to the City.
XIV.
REPORTING
The Botanical Society or its representative shall meet with
City's representative annually within sixty (60) days of the end
of Botanical Society's fiscal year to review the performance of
the Agreement and to discuss any problems or matters as
determined by the City.
XV.
OWNERSHIP
Ownership of all fixed assets and personal assets upon the
Property and all alterations, additions or betterment thereto,
shall remain in the Botanical Society until termination of this
Agreement. Upon termination thereof, whether by expiration of
the term, cancellation, forfeiture or otherwise, ownership of
fixed assets shall vest in City, without compensation being paid
therefor, and such structures, buildings and/or improvements
shall be surrendered with the Property.
XVI.
NOTICE OF NON-PERFORMANCE
A. City's Right To Enter
Should Botanical Society fail, after ten (10) days notice on
safety or health issues and such other time as set out in the
specific notices for all other matters from the City of the need
thereof, and City shall be the judge in determining need, to
perform its obligations required hereunder, City in addition to
all other available remedies may, but shall not be so obliged,
enter upon the Property and perform Botanical Society's said
failed obligations using any equipment or materials on the
Property suitable for such purposes. The Botanical Society shall
forthwith reimburse the City for its costs so incurred including
direct overhead, within thirty (30) days of receipt of such
demand.
B. Deficiencies
If the City determines that there are deficiencies in the
performance of this Agreement, the City will provide a written
notice to the Botanical Society to correct the deficiency,
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including a time frame for correction. If Botanical Society
cannot meet this time frame, it shall negotiate a new time frame
with the City. If a satisfactory time frame to correct
deficiencies cannot be negotiated, this matter may be submitted
for arbitration.
C. Notice
City Manager or his designee shall have the authority to issue
deficiency notices and to set a time frame for correction,
including negotiating a new time frame as set out in XVI(B)
above.
XVII.
INDEPENDENT CONTRACTOR
Both parties hereto, in the performance of this
Agreement, will be acting in an individual capacity and not as
agents, employees, partners, joint venturers or associates of one
another. The employees or agents of any party shall not be or be
construed to be the employees or agents of the other party for
any purpose whatsoever.
XVIII.
INSURANCE
A. During the term of this Agreement as set out in
this section, the Botanical Society shall keep continually in
force public liability insurance in an amount not less than One
Million and 00/100th Dollars ($1,000,000.00) combined single
limits.
B. The Botanical Society shall be required to comply
with workers compensation laws, provide general liability,
property damage liability, personal injury liability, products
liability, and fire and extended coverage under said certificate
of insurance.
C. The Botanical Society agrees to provide and maintain, at
its own expense, the following types and amounts of insurance for
the term of the Agreement.
TYPE AMOUNT
1) Worker's Compensation
Employer's Liability
accident
2) Comprehensive General (Public)
Liability - to include (but not
limited to) the following:
A) Premises/Operations
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Statutory -
$100.000.00 each
Bodily Iniurv:
$300,000.00 per person
$500,000.00 per
occurrence
and
B) Independent Contractors
C) Personal Injury Coverage
D) Products/Completed Oper-
ations occurrence or
E) Contractual Liability
(Insuring Indemnity
Provision Within This
Agreement) Property Damage:
F) Food Handlers, if applicable
3) Comprehensive Automobile
Liability - to include
coverage for:
A)
B)
C)
Owned/Leased Automobilesand
Non -owned Automobiles
Hired Cars
4) Property Insurance - for
physical damage to the property
of Botanical Society, including
actual cash
improvements and betterment to
the City owned property, but in-
cluding coverage for hurricane,
flood, tornado, wind or earthquake
Property Damage:
$100,000.00 per
Combined Single Limit
for Bodily Injury and
$1,000,000.00
Bodily Injury:
$300,000.00 per person
$500,000.00 per
occurrence
Property Damage:
$300,000.00 per
occurrence or
Combined Single Limit
for Bodily Injury and
Property Damage:
$500,000.00
Coverage for a minimum
of ninety (90) percent
of the value of all
property, including all
improvements thereon.
With respect to the above required insurance(s), City shall:
Be named as an additional insured.
Be provided with a Waiver of Subrogation, in favor of City.
Be provided with thirty (30) days notice prior to
cancellation, nonrenewal or material change.
Be provided, through the office of the Parks and Recreation
Director, with Certificates of Insurance evidencing the above
required insurance(s). Said Certificates are to be provided to
the Parks and Recreation Director, fifteen (15) days prior to
commencement of activities or construction under this Agreement,
and annually thereafter, no less than fifteen (15) days prior to
expiration of the then current insurance policies.
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Be provided copies of all insurance policies on City's
written request therefore.
D. Failure on the part of the Botanical Society to procure
or maintain required insurance shall constitute a material breach
of contract upon which the City may immediately terminate this
Agreement upon thirty (30) days notice or, at its discretion,
procure or renew such insurance and pay any and all premiums in
connection therewith, and all monies so paid by the City shall be
repaid by the Botanical Society to the City within thirty (30)
days of demand therefor.
E. Construction and/or operation of the Botanical Gardens
on the Property shall not commence until the Botanical Society
has complied with the aforementioned insurance requirements, and
operations shall be suspended during any period that the
Botanical Society fails to maintain said policies in full force
and effect.
F. The amount of insurance coverages heretofore specified
as required may be subject to renegotiation after the third year
of operation and at each fifth year interval thereafter. Should
either party request renegotiation with respect to the amount of
insurance coverages to be provided, the determination thereof
shall be established through mutual negotiation between the
parties. Said negotiations shall commence three (3) months prior
to the termination of the current insurance period. In the event
a new amount has not been established by mutual agreement within
three (3) months from commencement of negotiation, said
controversy shall be submitted to arbitration under the
Commercial Rules of Arbitration of the American Arbitration
Association, except as hereinafter modified: the locale for the
arbitration shall be within the City of Corpus Christi; the sole
issue for determination pursuant to this section by the
arbitrator shall be the amount of insurance coverages required
for the period under review; and the expenses subject to
assessment shall be borne equally by the parties. City Manager
or his designee is hereby authorized to negotiate on behalf of
the City's interest.
G. Botanical Society 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 person 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 the City, its
officers, employees, or agents, ("Indemnitees") and on the part
of Botanical Society or any of its agents, servants, employees,
contractors, patrons, guests, licensees, or invitees entering
upon the Property pursuant to this Agreement with the express or
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implied invitation or permission of Botanical Society, or when
any such injury or damage is the result, proximate or remote, of
the violation by Indemnitees, Botanical Society, 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 Property herein or out of the use or occupancy of the
improvements to the Property or the Property itself by
Indemnitees, Botanical Society, its agents, servants, employees,
contractors, patrons, guests, licensees, or invitees.
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.
Botanical Society covenants and agrees that in case City
shall be made a party to any litigation against Botanical Society
or in any litigation commenced by any party, other than Botanical
Society relating to this Agreement and the improvements
contemplated hereunder, Botanical Society shall and will pay all
costs and expenses, including reasonable attorneys' fees and
court costs incurred by or imposed upon City by virtue of any
such litigation.
XIX.
TAXES
The Botanical Society shall be responsible for any and all
taxes and all other licenses, fees, and taxes as required to
operate and maintain such Botanical Garden operations which its
use of the Property causes to be assessed against the Property
and any Fixed Assets or Personal Property appurtenant thereto.
XX.
TRANSFERS
A. The Botanical Society shall not, without the prior
written consent of the City, assign this Agreement or license any
portion of the Property. Any attempted assignment or license
without the prior written consent of the City shall render this
Agreement null and void.
B. Each and all of the provisions, agreements, terms,
covenants, obligations, and conditions herein contained to be
performed by the Botanical Society shall be binding upon any
successor, or assignee and said successor or assignee takes
subject to strict compliance with all provisions, agreements,
terms, covenants, obligations, and conditions contained herein.
Failure to do so shall render this Agreement null and void.
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C. Neither this Agreement nor any interest therein shall be
transferable in proceedings in attachment or execution against
the Botanical Society or in voluntary or involuntary proceedings
in bankruptcy or insolvency or receivership taken by or against
the Botanical Society, or by any process of law including
proceedings under Chapter X and KS of the Bankruptcy Act.
D. The Botanical Society may transfer, sell, exchange,
assign or divest themselves of any interest they may have in this
Agreement. However, in the event any such sale, transfer,
exchange, assignment or divestment is accomplished in such a way
as to give majority control of the Botanical Society to any
persons, corporation, partnership or legal entity other than the
majority controlling interest therein at the time of execution of
this Agreement, prior written approval thereof by the City shall
be required. Consent to any such transfer may be refused if the
City finds that the transferee is lacking in experience and/or
financial ability to render and provide services for the
operation of the Botanical Gardens.
XXI.
NON-DISCRIMINATION
A. The Botanical Society certifies and agrees that all
persons employed thereby, are and shall be treated equally
without regard to or because of race, religion, ancestry,
national origin or sex, and in compliance with all federal and
state laws prohibiting discrimination in employment.
B. The Botanical Society certifies and agrees that
subcontractors, bidders and vendors thereof are and shall be
selected without regard to or because of race, religion,
ancestry, national origin or sex.
C. All employment records shall be open to the City, its
agents, servants or employees for inspection and reinspection at
any reasonable time during the term of this Agreement for the
purpose of verifying the practice of non-discrimination by the
Botanical Society in the areas heretofore described.
D. City and Botanical Society shall be bound by all terms,
conditions, rules, and regulations of Title VI of the Civil
Rights Act of 1964.
XXII.
EASEMENTS
A. City reserves the right to establish, grant or utilize
easements or rights of way over, under, along and across the
Property for utilities and/or public access to the Property,
provided City shall exercise such rights in a manner as will
avoid any substantial interference with the operations to be
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conducted hereunder. Should the establishment of such easements
deprive Botanical Society of the use of a portion of the
Property, the City shall compensate by granting the Botanical
Society the use of adjacent property owned by the City, if
available, in an amount proportional to the total area of the
Property lost due to such easements. ;, u O1/40A2
XXIII.
CANCELLATION
A. Upon the occurrence of any one or more of the events of
default hereinafter described, this Agreement shall be subject to
cancellation. As a condition precedent thereto, the City shall
give the Botanical Society thirty (30) business days notice by
certified mail of the date set for cancellation thereof; the
grounds therefor; and that an opportunity to be heard thereon
will be afforded not less than five (5) days before said date, if
request is made therefor.
B. Upon cancellation City shall have the right to take
possession of the Property, including all improvements,
equipment, and inventory located thereon, and use same for the
purpose of satisfying and/or mitigating all damages arising from
a breach of this Agreement.
C. Action by City to effectuate a cancellation and
forfeiture of possession shall be without prejudice to the
exercise of any rights provided herein or by law to remedy a
breach of this Agreement.
XXIV.
EVENTS OF DEFAULT
The following events will constitute a breach of this lease
and a default thereunder:
A. The abandonment, vacation or discontinuance of
operations on the Property for more than thirty (30) consecutive
days or thirty (30) nonconsecutive days in a sixty (60) day
period, assuming that such discontinuance is not the result of a
force majeure event or otherwise beyond Botanical Society's
control.
B. The failure of the Botanical Society to operate in the
manner required by this Agreement, where such failure continues
for the notice period as described in Section XVI herein, after
written notice from the City to correct the condition therein
specified.
C. The failure to maintain the Property and the
improvements constructed thereon in the state of repair required
hereunder, and in a clean, sanitary, safe and satisfactory
condition, where such failure continues for more time than set
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out in the notice period described in Section XVI herein after
written notice from the City to correct the condition.
D. The failure of Botanical Society to keep, perform and
observe all other promises, covenants, conditions and agreements
set forth in this Agreement, where such failure continues for
more than sixty (60) days after written notice from the City for
correction thereof, provided that where fulfillment of such
obligation requires activity over a period of time and the
Botanical Society shall commence to perform whatever may be
required to cure the particular defect within sixty (60) days
after such notice and continues such performance diligently, said
time limit may be waived in the manner and to the extent allowed
by the City.
E. The filing of a voluntary petition in bankruptcy by the
Botanical Society; the adjudication of the Botanical Society as a
bankrupt; the appointment of any receiver of the Botanical
Society's assets; the making of a general assignment for the
benefit of creditors; a petition or answer seeking an arrangement
for the reorganization of the Botanical Society under any Federal
Reorganization Act; the occurrence of any act which operates to
deprive the Botanical Society permanently of the rights, powers
and privileges necessary for the proper conduct and operation of
the Botanical Gardens; the levy of any attachment or execution
which substantially interferes with Botanical Society's
operations under this Agreement and which attachment or execution
is not vacated, dismissed, stayed, or set aside within a period
of one hundred eighty (180) days.
F. Determination by the City, the State Fair Employment
Commission, or the Federal Equal Employment Opportunity
Commission of discrimination having been practiced by the
Botanical Society in violation of state and/or federal laws
thereon.
G. Transfer of the majority controlling interest of the
Botanical Society to persons other than those who are in control
at the time of the execution of this Agreement without the prior
written approval thereof by the City other than the normal Board
of Directors turnover which is expressly excluded from this
provision. The City will not unreasonably withhold its consent.
H. If Botanical Society fails to perform any of its non -
monetary obligations under this Use Agreement when due or called
for, and the Botanical Society fails to cure such non -monetary
default within sixty (60) days after written notice from the City
of such non -monetary default; provided, however, that if the
nature of the non -monetary default is the result of a force
majeure occurrence or is otherwise of a nature such that it
cannot be fully cured within that sixty (60) day period, the
Botanical Society shall have such additional time as is
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reasonably necessary to cure the default so long as the Botanical
Society is proceeding diligently to complete the necessary cure
after service of notice by the City.
I. Breach of any term or condition herein, which breach
continues for more than sixty (60) days, or such other time set
out in said notice, after written notice from the City to correct
the breach.
XXV.
REMEDIES
A. If any of the conditions identified in section XXIV
above should occur and the party in default does not cure the
default, the non -defaulting party may elect to terminate this
Agreement immediately and seek all remedies as provided under law
and equity. If the Botanical Society is the party in default,
City may terminate Botanical Society's right to possession
without termination of the Agreement. If the City elects to
continue the Agreement and so informs the Botanical Society in
writing, the City will retain the right to recover all payments
at such time as they become due under this Agreement and, the
Botanical Society may assign its interest in the Agreement
pursuant to Section XX of this Agreement. The City may also
elect to transfer the Property to any other party for such terms
as the City deems practicable.
B. If either party at any time by reason of the other
party's default pays any sum or does any act that requires
payment of any sum, the sum paid by the non -defaulting party
shall be immediately due and owing by the defaulting party to the
non -defaulting party at the time the sum is paid, and if paid at
a later date shall bear interest at the rate of ten percent (10%)
per annum from the date the sum is paid by the non -defaulting
party until the non -defaulting party is reimbursed by the
defaulting party.
XXVI.
WAIVER
A. Any waiver by the City of any breach of any one or more
of the covenants, conditions, terms, obligations, and agreements
herein contained shall not be construed to be a waiver of any
subsequent or other breach of the same or of any other covenant,
conditions, term or agreement herein contained, nor shall failure
on the part of the City to require exact, full and complete
compliance with any of the covenants, conditions, terms,
obligations, and agreements herein contained be construed as in
any manner changing the terms of this Agreement or estopping the
City from enforcing the full provisions thereof.
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B. No delay, failure,
Property or to exercise any
arising from any default,
payments then or thereafter
privilege or option, or
acquiescence in such default
or omission of City to re-enter the
right, power, privilege, or option,
nor any subsequent acceptance of
shall impair any such right, power,
be construed as a waiver of or
or as a relinquishment of any right.
C. No option, right, power, remedy or privilege of City
shall be construed as being exhausted by the exercise thereof in
one or more instances. The rights, powers, options, privileges
and remedies given the City by this Agreement shall be
cumulative.
XXVII.
RIGHT OF ENTRY
A. Any officer and/or authorized employee of City or TDP&W
may enter upon the Property at any and all reasonable times for
the purpose of determining whether or not the Botanical Society
is complying with the terms and conditions hereof, or for any
other purpose incidental to the rights of the City with respect
to the Property and shall be accompanied by staff of Botanical
Gardens.
B. In the event of an abandonment, vacation or
discontinuance of operations for a period in excess of that set
out in XXIV(A) above, assuming that such discontinuance is not
the result of a force majeure event or otherwise beyond the
Botanical Society's control, the Botanical Society hereby
irrevocably appoints the City as an agent for continuing
operation of the services granted herein, and in connection
therewith authorizes City's officers and employees thereon to (1)
take possession of the Property, including all improvements,
equipment, personal property, and inventory thereon; and (2)
remove any and all persons or property on said Property and place
any such property in storage for the account of and at the
expense of the Botanical Society; and (3) transfer the use of the
Property; and (4) after payment of all expenses, apply all
payments realized therefrom to the satisfaction and/or mitigation
of damages arising from the Botanical Society's breach of this
Agreement. Entry by the officers and employees of the City upon
the Property for the purpose of exercising the authority
conferred herein as agent of the Botanical Society shall be
without prejudice to the exercise of any other rights provided
herein or by law to remedy a breach of this Agreement.
C. No entry or action taken pursuant to this Right of Entry
on behalf of City shall constitute a trespass.
XXVIII.
SURRENDER
Upon expiration of the term hereof, or cancellation thereof
AG5017.004.kp 15
as herein provided, the Botanical Society shall peaceably vacate
the Property and any and all improvements located thereon and
deliver up the same to the City in a reasonably good condition,
ordinary wear and tear excepted, subject to the right of the City
to demand removal thereof.
XXIX.
INTERPRETATION
A. This Agreement shall be interpreted according to the
Texas laws which govern the interpretation of contracts. Venue
shall lie in Nueces County where this Agreement was entered into
and will be performed.
B. The headings herein contained are for convenience and
reference only and are not intended to define or limit the scope
of any provision thereof.
XXX.
ENFORCEMENT
A. The City Parks and Recreation Director shall be
responsible for the enforcement of this Agreement on behalf of
the City and shall be assisted therein by those officers and
employees of the City having duties in connection with the
administration thereof.
B. If either the City or the Botanical Society should find
it necessary to bring an action in a court of law to enforce any
of its rights or remedies under this Agreement, both parties
agree that the prevailing party in any such litigation shall be
entitled to a recovery of reasonable attorneys' fees and costs
incurred by way of such action.
XXXI.
NOTICES AND ADDRESSES
All notices, demands, requests or replies provided for or
permitted by this Agreement shall be in writing and may be
delivered by any one of the following methods: (1) by personal
delivery; (2) by deposit with the United States Postal Service as
certified or registered mail, return receipt requested, postage
prepaid to the addresses stated below; (3) by prepaid telegram,
or (4) by deposit with an overnight express delivery service at:
If to City:
City of Corpus Christi
P.O.Box 9277
Corpus Christi, Tx 78469-9277
Attn: Director of Park &
Recreation
If to Botanical Society
Botanical Society, Inc.
8510 South Staples
Corpus Christi, Tx 78413
Attn: Chairman
Notice deposited with the United States Postal Service in
AG5017.004.kp
16
the manner described above shall be deemed effective three (3)
business days after deposit with the Postal Service. Notice by
telegram or overnight express delivery service shall be deemed
effective one (1) business day after transmission to the
telegraph company or overnight express carrier.
XXXII.
ARBITRATION
A. If Botanical Society and City disagree on the
interpretation of any clause of this Agreement or how to enforce
any clause of this Agreement, then Botanical Society and City may
enter into arbitration to determine said issue as set out herein.
B. If arbitration is mutually elected, a list of seven (7)
qualified neutrals who are members of the National Academy of
Arbitrators shall be requested from the American Arbitration
Association (AAA). Within five (5) working days after receipt of
the list, the Botanical Society and the City shall alternately
strike the names on the list, and the remaining name shall be the
arbitrator. If they do not so agree, each party may mail to the
Director of Park and Recreation a copy of the list of neutrals
indicating the order in which they wish to alternately strike
names. On the fifteenth day following the mailing of the list by
the AAA or other qualified agency, the Director of Park and
Recreation shall alternately strike the names in the order
requested beginning with the Botanical Society's list from the
last occasion of striking and the last remaining name shall be
selected. Copies of the final strike order and each party's
preferential list will be sent to the respective parties by the
Director of Park and Recreation, but not before the selection is
made. Should either party fail to deliver their list within
fifteen (15) days from the date the agency mails the list, the
other party's seventh numbered strike shall be selected. Should
both parties fail to deliver their list to the agency within such
fifteen (15) days, the selection will be at random by the
Director of Park and Recreation.
C. The hearing shall be informal and the rules of evidence
shall not apply. The arbitrator shall not have the power to add
to, subtract from, or modify the provisions of this Agreement in
arriving at a decision on the issue or issues presented; and
shall confine his decision solely to the precise issue submitted
for arbitration, and shall have no authority to determine any
other issues not directly presented for arbitration. The
decision of the arbitrator shall be final and binding upon the
Botanical Society and the City.
D. The losing party shall pay all the fees and expenses of
the arbitrator. The arbitrator shall designate the losing party
for purposes of this paragraph, and may find that both parties
lost in part and apportion fees and expenses accordingly.
AG5017.004.kp
17
E. The hearing shall be commenced within such reasonable
time as the arbitrator selected can be scheduled. If the
arbitrator selected cannot commence the hearing within fifty (50)
days from his selection, either party may, within two (2) days of
so learning, call for selection of a new arbitrator, and if the
parties cannot agree upon a substitute within one (1) day of so
learning, another arbitrator shall be selected from a new list of
seven (7) names immediately requested from the American
Arbitration Association, according to the procedure set out
herein. The hearing shall be scheduled so that it can be
completed without break, in consecutive calendar days (excluding
weekends and holidays). The arbitrator shall make an award
within thirty (30) days of the close of evidence in standard
arbitration hearings, and within five (5) days of the close of
evidence in expedited arbitration hearings. Post hearing briefs
shall only be permitted in standard arbitration hearings, and
must be mailed to the arbitrator within seven (7) days of the
close of evidence in the hearing.
F. A stenographic transcription of the proceedings shall
be made only upon written agreement of the parties prior to the
commencement of the hearing. Should there be no agreement, the
party desiring the transcript may have the transcript made at its
sole expense.
G. The following rules shall govern the conduct of
hearings under this section, and of certain preliminary matters:
1. Upon the request of either party addressed to the
opposing party at least two (2) days prior to the date
of hearing, the parties shall exchange the names of
witnesses expected to be called at the hearing. Upon
failure of a party to disclose such witnesses, the
arbitrator may exclude their testimony.
2. The arbitrator shall have the power to subpoena
witnesses, records, and other evidence. Prior to the
hearing, the Director of Park & Recreation shall issue
subpoenas requested by the parties in the name of the
arbitrator. A party may apply to the arbitrator to
quash a subpoena issued by the Director of Park &
Recreation.
3. In all hearings under this section, the City and/or
Botanical Society shall prove its case by a
preponderance of the evidence.
4. The parties, in writing, may request discovery from
each other concerning the case. Should the other party
not agree to provide the requested information within
three (3) days of the request, the request shall be
deemed denied. The requesting party may then apply to
AG5017.004.kp 18
the arbitrator, who shall order such discovery as
appropriate to the nature of the case, subject to rules
of discover in Texas civil cases. In considering the
application, the arbitrator shall consider the burden
and expense of producing the information, the need of
the requesting party, the amount of time available
prior to the hearing, and such other matters as he may
deem material. In no event shall discovery be
permitted to delay the hearing, and in no event shall
discovery be requested within the three (3) days prior
to the hearing.
5. Judicial rules of evidence need not be strictly
followed; witnesses may be placed under the rule, and
all hearings shall be public unless otherwise agreed by
the affected parties. The rules of the American
Arbitration Association shall govern the conduct of
hearings except where in conflict with this contract.
6. The arbitrator shall render a decision in writing
setting forth the reasons for his decision. The
conclusion reached by the arbitrator shall be based
solely on evidence adduced at the hearing. The
arbitrator shall not communicate with parties or
witnesses relating to the facts or subject matter of
the case without giving all parties notice and the
opportunity to attend. Arbitration hearings may be
continued or recessed by the arbitrator in the interest
of justice or when mutually agreed by the parties.
XXXIII.
ENTIRE AGREEMENT
A. This document, and the exhibits attached hereto,
constitutes the entire Agreement between the City and the
Botanical Society for said use granted. All other agreements,
promises and representations with respect thereto, other than
contained herein, are expressly revoked, as it has been the
intention of the parties to provide for a complete integration
within the provisions of this document, and the exhibits attached
hereto, the terms, conditions, promises and covenants relating to
the Botanical Garden operation and the demised premises to be
used in the conduct thereof. The unenforceability, invalidity,
or illegality of any provision of this agreement shall not render
the other provisions thereof unenforceable, invalid, or illegal.
B. This document may be modified only by further written
agreement between the parties hereto. Any such modification
shall not be effective unless and until executed by the Botanical
Society and in the case of City until approved by the City
Council and executed by the City Manager.
AG5017.004.kp
19
IN WITNESS WHEREOF Botanical Society has executed this
agreement, or caused it to be duly executed, and City of Corpus
Christi, by order of the Corpus Christi City Council caused this
Agreement to be executed on its behalf by the City Manager and
attested by the City Secretary.
Signed this cgtd day of (a,i4) , 1992.
ATTEST: CITY OF CORPUS CHRISTI
Armando Chapa, City Secretary Juan Garza, City Manager
APPROVED AS TO FORM THIS e?€/ DAY OF , 1992.
James R. Bray Jr., City Attorney
By: L V(A Lr* ,Jlu.ilar a,k—
Assistant City Attorn*y
AG5017.004.kp
CORPUS CHRISTI BOTANICAL
CIF 'Y, INC.
ohnnie Rajl Seale, President
Board of Trustees
Irma Rios, Secretary
Board of Trustees
20
That the foregoing »rdinance was read for the first time and passed to its second readirg
the / I day of ,3-1--)F, ?a 't _ , 19 t.) , -by the following vote:
Mary Rhodes • Edward A. Martin
Cezar Galindo
Leo Guerrero
Betty Jean Longoria (1.1/1_
Joe McComb
ddcatit r
Dr. David McNichols L -
Clif Moss tutp
Mary Pat Slavik
aty
That the foregoing ordiaanpe was read for the second time and passed to its third reading on
this the / R day of VP to n (,y , 19 by the following vote:
Mary Rhodes
Cezar Galindo
Leo Guerrero
Betty Jean Longoria
Edward A. Martin
Joe McComb
Dr. David McNichols '""r0 2
Clif Moss
Mary Pat Slavik L
That the foregoing ordinance was read for the third time and passed finally on this the 11
day of MO✓C (n. , 19 =�f 7, by the following vote:
6.
Mary Rhodes
Cezar Galindo
Leo Guerrero
Betty Jean Longoria
PASSED AND APPROVED, this the
A1'1'hST
C'4
City Secretary
APPROVED: 674%DAY OF / e
JAMES R.
By (�
044
Edward A. Martin
Joe McComb
Dr. David McNichols
Clif Moss
Mary Pat Slavik
f1 day of in k Chi
24_
,19gL.
MAYOR
THE CITY OF CORPUS CHRISTI
Y, JR., CITYATTO
(71-16-42
19/.2--:
, Assistant City Attorney
021348
PUBLISHER'S AFFIDAVIT
State of Texas,
County of Nueces } ss:
CITY OF CORPUS CHRISTI
Ad #62192
PO #
Before me, the undersigned, a Notary Public, this day personally
came Anna Steindorf, who being first duly sworn, according to
law, says that she is a Business Office Secretary of the Corpus
Christi Caller -Times, a daily newspaper published at Corpus
Christi in said County and State, generally circulated in
Aransas, Bee, Brooks, Cameron, Duval, Hidalgo, Jim Hogg, Jim
Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San
Patricio, Victoria, and Webb Counties, and that the publication
of NOTICE OF PASSAGE OF ORDINANCE ON SECOND READING AUTHORIZING
THE EXECUTION OF A SIXTY -YEAR USE AGREEMENT which the annexed is
a true copy, was published in the Corpus Christi Caller -Times on
the 23rd day of February 1992.
One Time(s)
§ 37.80
Business Office -cretary
S
srY.. 110. rfi
4
/aAr
/ m Chapa TX
Subscribed and sworn to before me this 6th day
March , 1992.
Notary Public, Nueces County, Texas
My commission expires on 4-24-93 .
t.y c
Inas
My o r rP .1-24-93
r' NO
a' SE•,•
ADING It
AUTH• ING THE EXECU-ti
Of y' TI N OF A. SIXTY -YEAR �U�SE at
7ANI-t.
CAL SOCIETY FOR THE USE •s
j' OF 180.88 ACRES OF PARK
,u. LAND ADJACENT TO OSO
CREEK AS A BOTANICAL
GARDEN for a monetary
6 consideration of $1 for
the term of the use
epbmam; AND PROVIDING T
8 FOR PUBUCATION. A
c; A copy of the agreement D
is on file in the City A
c; Secretary's office. A
The ordinance was paued TI
c; and approved on second OR
reading by the City Council 1.
a; of the City of Corpus Christi, Ap
Texas on the 18th day of and
K: February, 1982. my
V; /s/ Armando Chaps 8E
City Secretary Oh
• City of Corpus Christi thq
• NOTICEOF. P WC S Di
bat 'T T e» tY B
Dati�E
Christi m
E S
ON In
State of Texas,
}
PUBLISHER'S AFFIDAVIT
County of Nueces } ss:
CITY OF CORPUS CHRISTI
Ad #63998
PO #
Before me, the undersigned, a Notary Public, this day personally
came Anna Steindorf, who being first duly sworn, according to
law, says that she is a Business Office Secretary of the Corvus
Christi Caller -Times, a daily newspaper published at Corpus
Christi in said County and State, generally circulated in
Aransas, Bee, Brooks, Cameron, Duval, Hidalgo, Jim Hogg, Jim
Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San
Patricio, Victoria, and Webb Counties, and that the publication
of NOTICE OF PASSAGE OF ORDINANCE NO. 021348 AUTHORIZING THE
EXECUTION which the annexed is a true copy, was published in the
Corpus Christi Caller -Times on the 22nd day of March 1992.
One Time(s)
$ 37.70
L ''
LCL
Business Office Secretary
Subscribed and sworn to before me this 10th day of
April , 1992.
Ott tro \ (CCi e 0 4
Notary Public, Nueces County, Texas
My commission expires on 4-24-93 .
DEBT,N.
S4.1 arT
My C_... r .
TION OF
AGREEM
CORPUS CHRISTI BOTANI-
CAL
S098
180.85 ACRES OF PARK
LAND ADJACENT TO.OSO
CREEK AS A BOTANICAL
GARDEN for a monetary
consideration of S1 for
the term of the use •
agreement; AND PROVIDING
FOR PUBLICATION.
A copy of the agreement
is un file in the City
Secretary's office.
The ordinance was passed
and approved on thirdreading
by the City Council of the City
of Corpus Christi, Texas on
the 17th day of March, 1992.
.Is/ Armando Chap.
ty Secretary
'a�Ch nsq
PASSAGE
I NO. 021348
.THE EXECLI-
TY-YEAR USE
PUBLISHER'8 AFFIDAVIT
State of Texas, ) CITY OF CORPUS CHRISTI
County of Nueces ) ss: Ad #39254
PO #
Before me, the undersigned, a Notary Public, this day personally
came Anna Steindorf, who being first duly sworn, according to
law, says that she is a Business Office Secretary of the Corpus
Christi Caller -Times, a daily newspaper published at Corpus
Christi in said County and State, generally circulated in
Aransas, Bee, Brooks, Cameron, Duval, Hidalgo, Jim Hogg, Jim
Wells, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San
Patricio, Victoria, and Webb Counties, and that the publication
of NOTICE OF PASSAGE OF ORDINANACE ON FIRST READING AUTHORIZING
THE EXECUTION OF A SIXTY -YEAR USE AGREEMENT which the annexed is
a true copy, was published in the Corpus Christi Caller -Times on
the 16th day of February 1992.
One Time(s)
$ 33.75
Business Office Secretary
Subscribed and sworn to before me this 4th day of
March , 1992.
Notallotary Public, Nueces County, Texas
My commission expires on 4-24-93 .
Uq Secretary; B
ile -City of Cassius Christi. N
red NOTICE OF PASSAGE f
be FIRST READING
ORDNANCE
ON I
18, AUTHORIZING THE EXECU-
the TION OF A SIXTY -YEAR USE 7
:kik AGREEMENT WITH THE
exas CORPUS
C�FCHRISTI BOTANI-
CA— OF 1W,85 ACRETY S e
lCA- LAND ADJACENT O OOSOrn
-IMK CREEK AS A BOTANICAL C
W if- GARDEN; AND PROVIDING T
VICE FOR PUBLICATION:'
ARE A copy of the lease al
THE Is on file in the City s
OF Secretary's office. C
t701 The ordinance was passed C
'STI, and approvgd on Brat s
WILL reading by -the City Council `
CE of the City of Corpus Christi, I
II
RI- Texas on the 11th day of
As February, 1992.
/a/ Armando Chaps
1 -IN City Secretary
IN City of Corpus Christi M
Arc