HomeMy WebLinkAbout021839 ORD - 12/21/1993AN ORDINANCE
AUTHORIZING THE EXECUTION OF A PARKING LEASE AND
MANAGEMENT AGREEMENT FOR A TERM OF FIVE YEARS WITH THE
TEXAS STATE AQUARIUM OF THE PARKING LOT IN THE RIGHT-OF-
WAY OF HIGHWAY 181 (HARBOR BRIDGE) DESCRIBED IN THE
MULTIPLE USE AGREEMENT WITH TEXAS DEPARTMENT OF
TRANSPORTATION ("TXDOT") DATED FEBRUARY 16, 1988; TO
OPERATE THE PARKING LOT AND COLLECT PARKING METER FEES IN
CONSIDERATION OF 50 PERCENT OF ANNUAL REVENUES IN EXCESS
OF $400,000 AND MAINTENANCE OF LANDSCAPING AND RESTROOMS;
AND PROVIDING FOR PUBLICATION.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF CORPUS CHRISTI:
SECTION 1. That the City Manager is hereby authorized to
execute a parking lease and management agreement for a term of five
years with the Texas State Aquarium to operate the parking lot and
collect parking meter fees in consideration of 50 percent of annual
revenues in excess of $400,000 and for maintenance of the parking
lot in the right-of-way of Highway 181 (Harbor Bridge) described in
the Multiple Use Agreement with TXDOT dated February 16, 1988, a
substantial copy of which is on file with the City Secretary.
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.
\ord\93107
021809
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PARKING LEASE AND MANAGEMENT AGREEMENT
WITH THE TEXAS STATE AQUARIUM
STATE OF TEXAS §
COUNTY OF NUECES
WHEREAS, the City of Corpus Christi, a Texas home -rule municipal corporation
("City") and the State Department of Highways, now known as Texas Department of
Transportation ("TXDOT') entered into a Multiple Use Agreement dated February 16,
1988, concerning land in the right-of-way of Highway 181 (Harbor Bridge) described on the
attached and incorporated Exhibit A (referenced herein as "Lot A"); and
WHEREAS, City issued $1,500,000 in Certificates of Obligation to construct Lot A
for parking for the Texas State Aquarium, a Texas nonprofit corporation ("Aquarium"); and
WHEREAS, increased visitation by the public of the Texas State Aquarium, the
Lexington, and other attractions on Corpus Christi Beach has created the need for more
systematically -planned parking facilities to alleviate congestion and serve the public safety
and convenience; and
WHEREAS, City desires to generate income from Lot A and other designated
parking areas to fully amortize the Certificates of Obligation and future improvements to
and operation of additional parking facilities; and
WHEREAS, Aquarium is willing to operate Lot A and other designated parking areas
and collect fees from, and police, parking meters and parking zones in areas also described
on Exhibit A and Exhibit B, and maintain landscaping and restroom facilities in the areas
shown on Exhibit C;
AG5004.010
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NOW, THEREFORE, in consideration of the mutual covenants herein, the parties
agree as follows:
1. Term. The term of this Lease Agreement shall be for a period of five (5)
years beginning on the 61st day after the later of (i) final City Council
approval or (ii) approval from TXDOT for Aquarium to operate Lot A under
the Multiple Use Agreement.
2. Subject to Multiple Use Agreement. Operation of Lot A is subject to that
Multiple Use Agreement dated February 16, 1988 between City and TXDOT.
When City and Aquarium determine additional parking is necessary,
City will initiate a second Multiple Use Agreement with TXDOT to develop
additional parking lots in areas B and C, also shown on Exhibit A.
City will procure TXDOT's approval for Aquarium to operate Lot A
and for areas B and C to be fenced off in a manner to prohibit parking there
prior to the effective date of this Lease Agreement; upon receipt of TXDOT's
approval, City will install cable around areas B and C at City's expense.
The Multiple Use Agreement allows TXDOT to use all or part of Lot
A for maintenance and operation of S.H. 281 (and will allow similar use of
areas B and C when that Multiple Use Agreement is finalized).
3. Consideration. As consideration for City subleasing its interest in Lot A to
Aquarium, Aquarium hereby agrees to pay to City the annual amount of
$75,000, the City hereby represents that it may use said amount to amortize
City's portion of debt service agreed to in that Agreement to Assist Public
AG5004.010
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Parking in Aquarium Vicinity approved by City Council on November 28,
1989, by Motion No. M89-0334. In further consideration, Aquarium will
operate Lot A, and Lots B and C when constructed, as public parking open
to the public on an equal basis. Aquarium will perform all maintenance,
collect and account for all monies, and pay the City all amounts due it as set
out herein.
4. Operations. City hereby subleases its interest in Lot A to Aquarium and
retains Aquarium to operate Lot A, and the proposed future parking lots in
areas B and C. Aquarium shall also collect all revenue from the parking
meters shown on Exhibit B, attached and incorporated, and any additional
meters that City shall install in the general area at a later date with
Aquarium's prior approval, in which event an updated Exhibit B will be
attached to this Lease Agreement.
Aquarium personnel designated by the City Manager shall also issue
citations to all cars which are illegally parked, including in no parking zones,
handicapped parking spaces, or expired meters. City shall provide ticket
books and conduct one training session a year, if needed, on how to collect
the meter revenues, when cars are illegally parked, how to issue tickets, etc.
5. Development of Lots B and . After City negotiates a Multiple Use
Agreement with TXDOT for areas B and C, City and Aquarium will develop
plans and specifications for parking Lots B and C [respectively "Lot B" (in
area B) and "Lot C" (in area C)]. City shall sublease its interest in Lot B and
AG5004.010
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Lot C to Aquarium which shall construct Lot B and Lot C on a schedule
approved by City Manager or his designee ("Manager") subject to TXDOT's
consent. If requested by the Aquarium, the City will construct Lots B and C
with all of City's costs incurred with regard to constructing said Lots to be
reimbursed by the Aquarium. After completion of construction Aquarium
shall operate Lots B and C on behalf of the City.
6. Parking Meters. City shall install parking meters, handicapped parking, and
other signage in the general areas shown on Exhibit B, within ninety (90) days
from the effective date of this Lease Agreement. City shall maintain the
parking meters at its expense.
Aquarium shall collect all revenue from the parking meters and issue
citations for illegally parked cars. All citations shall be turned in to the City
Police Department and City shall collect and retain all fines. City shall pay
all costs associated with collecting the fines.
7. Collections. Aquarium shall collect all fees for parking in Lot A, and Lots B
and C when constructed, and all parking meter revenue. Aquarium shall
account to the City for all said collections.
If there is annual revenue in excess of $350,000, Aquarium shall retain
the first $50,000 in excess of $350,000 to set up a capital
improvements/shortfall fund which will be established with the advice and
consent of the City Manager; annual revenue in excess of $400,000 shall be
divided equally 50 percent to City and 50 percent to Aquarium.
AG5004.010
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8. Expenses. Aquarium shall pay for:
A. Parking lot equipment. Aquarium shall install all equipment, gates,
height barriers, etc. ("Equipment") necessary to operate Lot A as a
public parking lot, open to the public on an equal basis. Aquarium
shall own all such Equipment. Aquarium shall keep all Equipment in
good working order throughout the life of this Lease Agreement,
normal wear and tear excepted.
If City terminates this Lease Agreement prior to expiration,
Aquarium may remove the Equipment or require City to pay the then
existing fair market value for the Equipment. If City terminates this
Lease Agreement for cause, City may elect to purchase the Equipment
at its then existing fair market value or may elect to require Aquarium
to remove the Equipment. City shall give written notice of its election
within fifteen (15) days after City gives Aquarium notice of termination
of this Lease Agreement.
If the Equipment is removed, Aquarium shall restore, or have
restored, that area of the surface of Lot A to its condition prior to
removal of Equipment as approved by the City Manager.
If Lot B or Lot C is constructed, Aquarium shall install all
Equipment necessary to operate said Lot(s), which Equipment will be
treated in the same manner as the Equipment for Lot A.
AG5004.010
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B. Parking lot maintenance. City has reviewed the condition of Lot A
and has found the lot to be in excellent condition as of the date of
execution of this Lease Agreement.
Aquarium shall patch holes, sealcoat, and otherwise maintain
Lot A in good condition. All holes shall be filled as expeditiously as
possible and patched within seven (7) days of the time they are, or
should have been, discovered, unless the parties hereto agree that
existing inclement weather prevents such maintenance from occurring
in a timely manner.
Aquarium may restrict access to all or part of Lot A by trucks
and buses to minimize wear and tear on Lot A.
C. Utilities. Aquarium shall pay for all costs associated with extending
utilities to Lot A, and to Lots B and C when constructed, and for use
of utilities on Lot A, and Lots B and C, including without limitation,
water, wastewater, gas, solid waste removal, electricity, phone, cable,
etc, and all related connection costs and deposits. Aquarium shall also
pay for all utilities associated with landscaping maintenance and
restroom maintenance.
D. Payment on Certificates of Obligation. Aquarium shall continue to pay
its $75,000 annual payment which the City has made available to pay
a portion of the debt service in accordance with the terms of the
ordinance authorizing the Certificates of Obligation on the $1,500,000
AG5004.010
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Certificates of Obligation. In addition, Aquarium shall pay an
additional $75,000, which the City agrees shall be made available to
pay a portion of the debt service on the Certificates of Obligation.
If Aquarium fails to make the above described annual
payments, such failure shall be grounds for terminating this
Agreement. If City terminates under this provision and elects to
purchase the Equipment, the then existing fair market value of the
Equipment shall be reduced by the amount of City's annual payment
that was not made by Aquarium as required herein.
E. Insurance. Aquarium shall maintain 1) commercial general liability,
and comprehensive auto liability insurance, for bodily injury, or death,
and property damage in an amount of not Less than $1,000,000 per
occurrence; 2) workers' compensation insurance which complies with
state law governing workers' compensation (or, alternatively, a City
approved employee benefit plan providing for payment of medical
expenses and lost wages, comparable to workers' compensation
coverage, in the event of an on-the-job injury); and 3) replacement
value property insurance on the Equipment.
All insurance shall be with a company authorized to do business
in Texas and rated at least A- by the current edition of Best's Key
Rating Guide.
AG5004.010
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City shall be an additional insured, except for workers'
compensation insurance and damage or loss to parking lot equipment.
Aquarium shall provide the Group Manager of Development Services,
or successor official, with Certificates of Insurance demonstrating that
the required insurance has been obtained. The Certificates shall state
that the Group Manager of Development Services shall receive thirty
(30) days prior written notice before any cancellation, material change,
or nonrenewal of any policy may become effective.
Copies of all insurance policies will be provided to the City
Attorney's office with fifteen (15) days of the City Manager's written
request therefor.
F. Operating Expenses. Aquarium shall pay all costs associated with
operating Lot A (and Lots B and C if constructed), collecting revenue
from the parking meters, and issuing parking violation citations.
G. Capital Expenditures. If Aquarium undertakes capital improvements
allowed by paragraphs 5 and 7 herein, Aquarium shall pay for all costs
associated with planning, constructing, operating, maintaining, and
repairing said capital improvements.
H. TaxeQ. If Aquarium's operation of Lot A, or Lots B and C when
constructed, results in ad valorem taxes being assessed against that
AG5004.010
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property, Aquarium shall pay all taxes assessed. Aquarium may
dispute any taxes assessed, but shall pay all fines and/or penalties
associated with disputing said tax assessment.
If any sales tax, or other fee, is assessed against Lot A, or Lots
B and C when constructed, revenue or the parking meter revenue,
Aquarium shall be responsible for collecting and paying such sales tax,
or other fee.
All taxes or other fees shall be paid prior to the due date,
failure to do so shall be grounds for termination of this Lease
Agreement.
9. Parking Fees.
A. Parking Lot Fees. Aquarium may charge a maximum fee not to
exceed $10.00 per day. Aquarium may charge less; may provide for
discounts to Corpus Christi Beach merchants; and may waive the fee
for school tours, packaged tours, etc. However, Aquarium shall charge
fees at least high enough to collect the annual compensation needed
to amortize the outstanding Certificates of Obligation, and shall take
any discounts and/or waivers into account in setting said fee.
Furthermore, Aquarium shall notify City of any proposed
discounts or waivers, for a period in excess of one (1) day, of said
parking lot fees at least sixty (60) days prior to their becoming effective
so that City may determine whether such discounts or waivers
AG5004.010
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materially adversely affect the covenants contained in the ordinance
authorizing the Certificates of Obligation relating to the tax-exempt
status of the Certificates of Obligation.
B. Parking Meter Fees. City shall by ordinance enact parking meter fees
for the following streets, or portions of streets:
North Shoreline from Pearl to Coastal 500 per hour
Breakwater from N. Shoreline to E. Surfside 500 per hour
Breakwater from E. Surfside to W. Surfside 250 per hour
Bridgeport from N. Shoreline to E. Surfside 500 per hour
Coastal from North Shoreline to E. Surfside 500 per hour
West Surfside from Breakwater to Elm 250 per hour
East Surfside from Pearl to Elm 250 per hour
except for those areas which may be otherwise marked as No Parking, Handicapped
Parking, Loading Zone, etc.
If the City changes these parking meter fees, once the ordinance
is effective and the meters are marked with the new fee, the new fee
shall be effective without need to amend this Lease Agreement.
10. No Parking Zones. City shall establish No Parking Zones as shown on
Exhibit B. The City may change the No Parking Zones upon review and such
changes shall be automatically attached to and incorporated in this lease
agreement.
11. Hours of Operation. Hours of operation shall be set by the Aquarium on an
annual basis with the advice and consent of the City Manager or his designee.
AG5004.010
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12. Removal of Vehicles. Aquarium may remove all vehicles parked in Lot A for
more than 24 hours, which do not make prior arrangements with Aquarium.
All such vehicles shall be removed and stored in accordance with Texas law.
Aquarium shall indemnify City for all costs, charges, claims, or suits arising
out of the removal of such an abandoned vehicle.
13. Indemnity. Aquarium agrees to and shall indemnify and hold harmless the
City of Corpus Christi, its officers, employees, and agents ("Indemnitees")
from and against any and all liability, damages, loss, claims, demands, suits,
and causes of action of any nature on account of death, personal injuries,
property loss or damage, or any other kind of damage, including all expenses
of litigation, court costs, and attorneys' fees, which arise, or are claimed to
arise, out of or in connection with Aquarium operating Lot A, collecting
parking meter revenue, and issuing traffic citations pursuant to this Parking
Lease and Management Agreement, unless such death, injuries, or damages,
are caused, or claimed to be caused, in whole or in part by the negligence or
fault of Indemnitees.
14. Independent Contractor. This Lease Agreement forms the basis of an
independent contractor relationship between City and Aquarium. Nothing
herein shall be construed to make Aquarium, or any of its employees,
employees of City.
AG5004.010
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15. Assignment. Aquarium may not assign or convey any rights or obligations of
this Lease Agreement without the City's prior written consent. However,
Aquarium may hire employees or independent contractors to assist in
Aquarium's performance hereunder.
16. Non -Discrimination. Aquarium shall not discriminate on the basis of race,
color, religion, national origin, age, sex, or disability in employment, parking
availability, revenue collection, or citation issuance pursuant to this Lease
Agreement.
17. Termination.
A. Without Cause. City or Aquarium shall have the right to terminate
this Lease Agreement at any time upon six (6) months notice to the
other, subject to fulfilling other obligations herein.
B. With Cause. If Aquarium defaults in any duty or obligation herein,
City may terminate this Lease Agreement upon thirty (30) days written
notice to Aquarium, and absent Aquarium curing the default within
said thirty (30) day notice period this Lease Agreement shall
terminate.
C. If City terminates this Lease Agreement, the terms and provisions of
the agreement referenced in paragraph 3 shall control debt service of
the Certificates of Obligation.
AG5004.010
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18. Attorneys' fees. If any legal proceeding is necessary to enforce or interpret
the terms of this Lease Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and court costs in addition to any other relief to
which it may be entitled.
19. Accounting. Aquarium shall keep strict and accurate books of account of all
receipts collected. Aquarium agrees to furnish City monthly statements of
gross receipts, certified by the Aquarium. Such statements shall be
formulated according to generally accepted accounting principles and practices
and in a form prescribed by the City's Director of Finance which form may
be changed from time to time by said Director. The said books of receipt
shall be open for inspection by the City at all times. All underlying
documentation for Aquarium's certified monthly statements, including cash
register tapes, shall be preserved by Aquarium for at least five years. The
Aquarium shall further provide the City with an annual report of the
maintenance conducted on the parking lot and related equipment and the
expenses incurred for same. Such maintenance records shall be preserved for
a period of three years after maintenance occurs for the City's inspection.
The City may terminate this Lease Agreement for failure to preserve such
records or provide them to City upon request.
20. Landscaping Maintenance. Aquarium shall perform all landscaping and
landscaping maintenance in the areas identified on Exhibit C, attached and
incorporated, including paying for all associated utilities.
AG5004.010
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21. Restroom Maintenance. Aquarium shall perform all maintenance on the
restroom facilities in the area identified on Exhibit C, including paying for all
associated utilities.
22. Notice. Any notices pursuant to this Lease Agreement shall be deemed given
when hand delivered or mailed by certified mail, return receipt requested, to
the parties at their addresses stated as follows:
IF TO CITY:
City of Corpus Christi
P.O. Box 9277
Corpus Christi, Texas 78469-9277
Attention: Group Manager of Development Services
IF TO AQUARIUM:
Texas State Aquarium
P.O. Box 331307
Corpus Christi, Texas 78463
Attention: Executive Director
23. Legal Construction. This Lease Agreement shall be construed in accordance
with Texas law. Venue shall be in the courts of appropriate jurisdiction in
Nueces County, Texas where this Lease Agreement was entered into and is
performable.
24. Severability. If one or more provisions of this Lease Agreement shall be held
invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and this Lease
Agreement shall be construed as if such provision had never been contained
herein.
AG5004.010
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25. Entire Agreement. This Lease Agreement constitutes the entire agreement
of the parties hereto and supersedes any prior understandings or written or
oral arrangements, proposals, or exchanges between the parties hereto.
SIGNED this
day of , 1993.
Al !EST: THE CITY OF CORPUS CHRISTI
Armando Chapa, City Secretary Juan Garza, City Manager
APPROVED: 19 DAY OF —'V t d )c4ci , 1993.
JAMES R. BRAY JR., CITY ATTORNEY
By: L.
�' ek.cva�r
Alison Gallaway
Assistant City Attorney
TEXAS STATE AQUARIUM
By:
Name:
Title:
AGS004.010
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COLT PLACE
PUBLIC PARKING
PARKING METERS, HANDICAP PARKING,
AND SIGNAGE AREAS
EXHIBIT 'B'
No Parking Zones
•flParkinq Zones
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Landscaping a Restroorr
EXHIBIT 'C'
Scale: = 2001
That the foregoing ordinance was r a for the first time and passed
to its second reading on this the [3 day of NC 4VY ,
19 CI3 , by the following vote:
Mary Rhodes aEdward A. Martin ,...1
Ci},c�
Jack Best �,__ Dr. David McNichols (A40 at
Melody Cooper 1(/,-at—t David Noyola aitentiFt
Cezar Galindo () Ly_ Clif Moss
Betty Jean Longoria CU-1F�'
That the foregoing ordinances read for toe second time and
pas d finally on this the LI day of I )p ci2AN.,._60.-- ,
19, by the following vote:
Mary Rhodes 1
Jack Best �-
Melody Cooper
Cezar Galindo
Betty Jean Longoria
Edward A. Martin
Dr. David McNichols
David Noyola
Clif Moss
PASSggAND APPROVED, this the 2 day of C.k_ u_—Lnp r-
19
ATTEST:
2 City Secretary MAYO
,
THE CITY OF CORPUS CHRISTI
APPROVED: f Q DAY OF C -y_ 00,.e„y Rd , 19 9 3
JAMES R. BRAY, JR., CITY ATTORNEY
n2D# Assistant City Attorne
\fors \044
0218a9
pUBLISRRR'8 AFFIDAVIT
State of Texas, } CITY OF CORPUS CHRISTI
County of Nueces } ss: AD# 51072
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Before me, the undersigned, a Notary Public, this day personally
came Beverly Bennett, who being first duly sworn, according to
law, says that she is Business Office Secretary of the Cornus
Christi Caller -Times, a daily newspaper published at Cornus
Christi in said County and State, generally circulated in
Aransas, Bee, Brooks, Cameron, Duval, Hidalgo, Jim Hogg, Jim
Welts, Karnes, Kenedy, Kleberg, Live Oak, Nueces, Refugio, San
Patricio, Victoria, and Webb Counties, and that the publication
of NOTICE OF PASSAGE OF ORDINANCE NO. 021839 AUTHORIZING THE
EXECUTION OF A PARKING LEASE AND MANAGEMENT AGREEMENT FOR A TERM
which the annexed is a true copy, was published in the Cornus
Christi Caller -Times on the 26th day(s) of December, 1993.
One Time(s)
$72.00
L2-rtadit-
Business Offic-"Secretary
Subscribed and sworn to before me this 10th day
of January, 1993.
Notary Public, Nueces
-
!K ��\E,, H • AR4�
n 4 /
WC L/ I � ��•1oRY LBi. • 4' --
Co unty ,
County, Texas
H18/Sunday, Decanter^ ilaCIPPOLIECtwatt.Caller-Times
,1111r:- Lot Mn
TER FEES FOR THE
CONSIDERATION OF 50 PER-
cENT OF ANNUAL
. REVENUES IN EXCESS OF
• 5400,000 AND MAINTE-
NANCE OF LANDSCAPING
t AND RESTROOM.
f The ordinance was passed
3 and approved by the City
e Council of the City of
Corpus Christi on the 21st
day of December, 1993.
1.. _.-..; / Armando Chapa
5. City ef: Onati