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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 ;;00F%NEM 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 2 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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 / G__63. l AR_. W VI 00 BRIDGEPORT AVE. 41 • • BREAKWATER AVE. • • 9 • e n KTh0 0 LOT A 1 Underbridge Parking / / i EXHIBIT 'Al Scale: 1 = 200' WALNUT ST. 1 ( / ; : ; ----- / . --.<7-<:'- ,‘ ::',.:• : f j : , - : i.:>'-.-- : - ,\, .1 g CO I i LiS 0 1::c.73 • 0 b. me 3/3 • • • KLEBERC PLACE • 0 # • • # • 0 \s‘ sde • • 0 • • • COLT PLACE PUBLIC PARKING PARKING METERS, HANDICAP PARKING, AND SIGNAGE AREAS EXHIBIT 'B' No Parking Zones •flParkinq Zones 2 A - s p 3RIDGEPORT AVE. of u,i ¢I � ; I BREAKWATER AVE. 00 71 W BRIDGEPORT AVE. (RESTR0( LANDSCAPING o 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 POI to N -n Cs) 0 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