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HomeMy WebLinkAbout025768 ORD - 05/25/2004ORDINANCE AUTHORIZING THE CITY MANAGER OR THE CITY MANAGER'S DESIGNEE TO EXECUTE A USE AGREEMENT WITH P.A.L.S. FUNDS INC. RELATING TO CONSTRUCTION AND DONATION OF IMPROVEMENTS TO DAN WHITWORTH PARK;AND DECLARING AN EMERGENCY BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Manager or the City Manager's designee is authorized to execute a Use Agreement with P.A.L.S. Fund, Inc. relating to construction and donation of improvements to Dan Whitworth Park, located at 701 Meadowbrook Ddve. A copy of the agreement is attached. SECTION 2. That upon written request of the Mayor or five Council members, copy attached, the City Council (1) finds and declares an emergency due to the need for immediate action necessary for the efficient and effective administration of City affairs and (2) suspends the Charter rule that requires consideration of and voting upon ordinances at two regular meetings so that this ordinance is passed and takes effect upon first reading as an emergency measure this the ,:~'~day of P('~, 2004. ATTEST Armando Chapa City Secretary THE CITY OF CORPUS CHRISTI Mayor Approved: May 21,2004 Lisa AguilarLJ Assistant City Attorney for City Attorney Corpus Christi, Texas day of ,2004 TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas For the reasons set forth in the emergency clause of the foregoing ordinance an emergency exists requiring suspension of the Charter rule as to consideration and voting upon ordinances at two regular meetings: lANe, therefore, request that you suspend said Charter rule and pass this ordinance finally on the date it is introduced, or at the present meeting of the City Council. Respectfully, Respectfully, Mayor Council Members The above ordinance was passed by the following vote: Samuel L. Neal, Jr. Brent Chesney Melody Cooper , r Javier D. Colmenero Henry Garrett RexA. Kinnison Jesse Noyola Mark Scott /65 THE STATE OF TEXAS COUNTY OF NUECES Use Agreement Relating to Construction and Donation of The Dan Whitworth Park I~orovements THIS USE AGREEMENT RELATING TO CONSTRUCTION AND DONATION OF THE DAN WHITWORTH PARK IMPROVEMENTS ("Agreement") is made and entered into on this day of , 2004, by and between the P_A.L.S. FUND (PARKS, ARTS, LEISURE AND SENIORS FUND), ("P.A.L.S.") Inc., a Texas nonprofit corporation, and the CiTY OF CORPUS CHRISTI, TEXAS, a municipal corporation ("CITY"). W I T N E S S E T H : WHEREAS, P.A.L.S.desires to use certain areas of City property known as Dan Whitworth Park to construct and donate to CITY Dan Whitworth Park Improvements ("Dan Whitworth Park Improvements"); and WHEREAS, CITY and P.A.L.S.are mutually desirous of entering into this Agreement for the benefit of the public; NOW THEREFORE, in consideration of the mutual covenants, promises and agreements contained and subject to the terms and conditions stated in this Agreement, P.A.L.S. and CITY agree as follows: I. Term This Agreement shall commence on the date first written above and terminate upon completion of the Dan Whitworth Park Improvements described below by P.A.L.S. and their acceptance by CITY. The parties anticipate that the Dan Whitworth Park Improvements shall be completed within 3 months. II. Use of City's Property In consideration of the construction of Dan Whitworth Park Improvements and donation thereof to CITY, CITY does hereby grant to P.A.L.S. during the term of this Agreement the use of certain areas of Dan Whitworth Park as indicated on the P.A.L.S. plans for construction of the Dan Whitworth Park Improvements ("CITY's property"). CITY grants use of CITY's property only for the construction of certain Dan Whitworth Park Improvements. A description of the Dan Whitworth Park Improvements is attached. P.A.L.S. agrees to maintain CITY's property in a sanitary, safe and clean condition during P.A.L.S. use of CITY's property. P.A.L_S. further agrees and covenants that CITY's property and any and all Dan Whitworth Park Improvements shall at all times be subject to inspection by CITY. However, the City shall have no duty to inspect. III. Construction of Improvements During the term of this Agreement, the Dan Whitworth Park Improvements Agreement. P.A.L.S. shall construct in accordance with this When constructing the Dan Whitworth Park Improvements, the plans and specifications shall be prepared by state-licensed architects or engineers. The plans and specifications are subject to approval of the City Director of Engineering. P.A.L.S. shall require the Contractors who are awarded contracts for construction of the Dan Whitworth Park Improvements to furnish the following bonds by surety companies authorized to do business in Texas: Payment Bond - A payment bond in the amount of One Hundred Percent (100%) of the contract shall be furnished for the protection of all persons, firms and corporations who may furnish materials or perform labor. The payment bond shall be made with CITY as an Obligee. Performance Bond - A performance bond in the amount of One Hundred Percent (100%) of the Contract shall be furnished covering the faithful performance of the contract. The performance bond shall be made with CITY as an Obligee. Except as otherwise specified herein, P.A.L.S. shall include in all P.A.L.S. construction agreements for the Dan Whitworth Park Improvements, the following provisions: Contractor does hereby agree to waive all claims, release, indemnify, defend and hold haz~nless CITY all of its officials, officers, agents and employees, in both their public and private capacities, from and against any and all liability, cla/~s, losees, suits, d~m~nds or causes of action including all expenses of litigation and/or settlement, court costs and attorney fees which may arise by reason of inju~-y to or death of any person or for loss of, ~m~ge to, or loss of use of any property occasioned by error, omission, or negligent act of Contractor, its officers, agents, ~loyees, subcontractors, invitees or ~ny other person, arising out of or in connection with the (2) perform-~ce of this agreement, and Contractor shall at his or her own cost and expense defend and protect the City of Corpus Christi from &ny and all such claims and demands. Contractor does her~y agree to waive all claims, release, indemnify, defend and hold ha~nless the City of Corpus Christi and all of its officials, officers, agents and ~loyees from and against any ~d all cla~ns, losses, ~mages, suits, d~nds or causes of action, and liability of every kind including all e~enses of litigation and/or settl~ent, court costs and attorney fees for injury or death of any person or for loss of, ~m~ges to, or loss of use of any property, rising out of or in connection with the performance of this agreement. Such indemnity shall ap%oly whether the claims, losses, ~m~ges, suits, demands or causes of action arise in whole or in part from the negligence of the City of CoL-~us Christi, its officers, officials, agents or employees. It is the exloress intention of the parties hereto that the ind~ity provided for in this paragraph is indemnity by Contractor to indemnify and protect the City of Co~-~us Christi from the consequences of the City of Corpus Christies own negligence, where that negligence is a sole or concurring cause of the injur~, death or d~mage. In any and all claims against any party inde~mified hereunder by any ~u~ployee of Contractor, a_ny subcontractor, anyone d~rectly or indirectly e~loyed by any of them or anyone for whose acts any of the~ may ~ lisble, the indemnification obligation herein provided shall not be li~ted in any way by any l~m~tation on the amount or type of ~mages, co~ensation or benefits payable by or for Contractor or any subcontractor under work~an's compensation or o~-her ~loyee benefit acts. E×cept as otherwise specified herein, ?.A.L.S. shall also require the contractors, in all P.A.L.S. construction agreements for the Dan Whitworth Park Improvements to furnish insurance in such amounts as specified below and include in all construction agreements for the Dan Whitworth Park Improvements the following language: (3) Prior to commencement of any activity permitted on City of Corpus Christi's property, provided in the Use Agreement Relating to the Construction and Donation of the Dan Whitworth Park Improvements entered into on day of , 2004, between the P.A.L.S. and the City of Corpus Christi, or this contract, Contractor shall purchase and maintain during the term of this contract, at its own expense, hereinafter stipulated minimum insurance with companies duly authorized to do business in the State of Texas. Contractor shall not allow any subcontractor to commence work until all similar insurance of the subcontractor has been obtained. Ail insurance policies provided under this Agreement shall be written on an "occurrence" basis. Workers' Compensation as required by law. Employer's Liability Insurance of not less than $100,000.00 for each accident, $100,000.00 disease for each employee, $500,000.00 disease as policy limit. Commercial General Liability Insurance, including Independent Contractor's Liability, Products/Completed Operations and Contractual Liability, covering, but not limited to the indemnification provisions of this contract, fully insuring Contractor's liability for injury to or death of employees of the City of Corpus Christi and third parties, extended to include personal injury liability coverage, and for damage to property of third parties, with a combined bodily injury and property damage minimum limit of $1,000,000 per occurrence. Comprehensive Automobile and Truck Liability Insurance, covering owned, hired and non-owned vehicles, with a combined single limit of $1,000,000 per occurrence. Builder's Risk. The Contractor shall purchase a completed value builder's risk policy for the duration of this project. It is agreed by all parties to this Agreement that the insurance required under this Agreement shall: Be written with the City of Corpus Christi and P.A.L.S. each as an additional insured on applicable policies and that the policy phrase "other insurance" shall not apply to the City of (4) Corpus Christi where the City of Corpus Christi is an additional insured shown on the policy. Provide for ten (10) days notice of cancellation to the City of Corpus Christi, for nonpayment of premium, material change or any other cause. Be written through companies duly authorized to transact that class of insurance in the State of Texas. Waive subrogation rights for loss or damage so that insurers have no right to recovery or subrogation against the City of Corpus Christi, it being the intention that the required insurance policies shall protect all parties to the Agreement and be primary coverage for all losses covered by the policies. Provide a Certificate of Insurance evidencing the required coverages to: Margie Rose Assistant City Manager City of Corpus Christi Post Office Box 9277 Corpus Christi, Texas 78469-9277 Donna James Risk and Safety Manager City of Corpus Christi Post Office Box 9277 Corpus Christi, Texas 78469-9277 P.A.L.S. agrees that all work to be performed by it or its contractors, including all workmanship and materials, shall be of first-class quality and shall be performed in full compliance and in accordance with all federal, state and local laws, ordinances, codes and regulations, and such work shall be subject to CITY inspection during the performance thereof and after it is completed. However, the City shall have no duty to inspect. P.A.L.S. shall discharge all obligations to contractors, subcontractors, materialmen, workmen and/or other persons for all work performed and for materials furnished for or on account of P.A.L.S. as such obligations mature. P.A.L.S. expressly agrees that it will neither give nor grant, nor purport to give or grant any mechanic's or materialmen's lien upon the CITY's property or upon any Dan Whitworth Park (5) Improvements thereupon in the process of construction or repair, nor allow any condition to exist or situation to develop whereby any party should be entitled, as a matter of law, to a mechanic's or materialmen's lien against the CITY's property or Dan Whitworth Park Improvements thereon, and P.A.L.S. will discharge any such lien within thirty (30) days after notice of filing thereof. Ail plans and specifications referred to above and all construction upon the CITY's property shall comply with all applicable federal, state or municipal laws, ordinances, rules, regulations and requirements. During the progress of all work, CITY's duly authorized representative may enter upon the premises and make such inspections as may be reasonably necessary for the purpose of satisfying CITY that the work or construction meets the requirements or standards. P.A.L.S. shall conduct its operations under this Agreement in an orderly and proper manner, considering the nature of such operation, so as not to unreasonably annoy, disturb, or endanger others. Before any work on City property begins, P.A.L.S. shall present the City Director of Engineering, the City Risk Manager, and the Interim Director of Parks and Recreation with evidence of Contractor's insurance coverages, and City building and construction permits. IV. Cost of Dan Whitworth Park I~orovements The complete cost of developing all necessary plans and specifications, as provided in this Agreement, and the cost of construction of the Dan Whitworth Park Improvements by P.A.L.S. shall be borne solely by P.A.L.S. and be at no expense to CITY whatsoever. P.A.L.S. shall pay all taxes, special assessments, or levies, if any, assessed during the term against or relating to the Dan Whitworth Park Improvements on CITY's property, including ad valorem taxes pursuant to the Te×as Property Tax Code, until such time as ownership of such Dan Whitworth Park Improvements is transferred to the CITY at the end of the term of this Agreement. V. ~ership of Dan ~lhitworth Park Improvements Upon completion of the Dan Whitworth Park Improvements, it is P.A.L.S. desire to donate the Dan Whitworth Park Improvements to CITY. Ail alterations and Dan Whitworth Park Improvements on or in CITY's property at the commencement of the term, or those that may be installed or erected during the term, shall become part of CITY's property upon completion of the Dan Whitworth Park Improvements by P.A.L.S. and acceptance by CITY Manager. warranties given Improvements, or assigned to CITY Improvements are Any to the P.A.L.S. regarding Dan Whitworth Park any part thereof, shall be transferred and at the same time as the Dan Whitworth Park transferred to the CITY. VI. Ingress and Egress P.A.L.S. shall have the right to obtain ingress and egress to and from the area designated for construction of the Dan Whitworth Park Improvements in Dan Whitworth Park by means of all existing roadways or accessways, to be used in common with others having rights of passage thereon. VII. Damage or Destruction In the event of damage or destruction to the Dan Whitworth Park Improvements, CITY shall have no obligation to repair or rebuild the Dan Whitworth Park Improvements or any fixtures, equipment or other personal property installed by P.A.L.S.. However, if said damage or destruction occurs prior to CITY's acceptance of the Dan Whitworth Park Improvements, any insurance proceeds from any casualty loss shall be applied to the repair or rebuilding of the Dan Whitworth Park Improvements, which will be the extent of the P.A.L_S.'s obligation for repair. VIII. Indemnification To the extent that the P.A.L.S. is not ~--une under the Charitable Immunity and Liability Act of 1987, V.T.C.A., Civil Practice and Remedies Code § 84.006, P.A.L.S. does hereby agree to waive all claims, release, ind~m-ify and hold harmless CIT~ and all of its officers, officials, agents, and ~m?loyees, in both their public and private capacities, from any and all liability, claims, suits, demands, losses, ~mAges, attorney's fees, including all expenses of litigation or settlement, or causes of action which may arise by reason of injury to or death of any person or for loss of, ~mmAge to, or loss of use of any property, arising out of or in connection with this Agreement occasioned by error, omission, or negligent act of P.A.L.S., its officers, agents, employees, invitees, or other person for whom at is legally liable, with regard to the performance of this Agreement. In addition, P.A.L.S. does hereby agree to waive all claims, release, indemnify, defend and hold harmless CITY and all of its officers, officials, agents, and ~?loyees, in both their public and private capacities, from any and ell liability, cleims, suits, d~nds, losses, ~mm~ges, attorney's fees, including all expenses of litigation or settlement, or causes of action which (7) may arise by reason of injury to or death of any P.A.L.S. employee or volunteer or for loss of, ~ge to, or loss of use of any property of any P.A.L.S. Aml~.loyee or volunteer, arising out of or in connection with the perfo~nce of this A~reemant. This indemnification by P.A.L.S. shall include, but not be l~m~ted to liability arising from worker's compensation and general liability claims. IX. Rules and Regulations, Signage and Development Standards P.A.L.S. agrees to observe and obey any and all rules and regulations and all other federal, state and municipal rules, regulations, ordinances and laws, including but not limited to the impact fees, subdivision rules and regulations, zoning, landscape standards and the construction sections of the Code of the City of Corpus Christi, and require its officers, agents, employees, contractors, and suppliers to observe and obey the same. Signage shall comply with CITY ordinances. P.A.L.S. agrees to obtain, from all governmental authorities having jurisdiction, all licenses, certificates and permits necessary for the conduct of its operations and to keep them current. X. Utilities If any utilities are required, needed or desired by P.A.L.S., P_A.L.S. shall bear all costs, expenses and fees of extension connections or tapping charges for water and sanitary sewer facilities on CITY's property, in accordance with the ordinances of the CITY. Any storm sewer connection on the CITY's property necessitated by the erection of additions to or Dan Whitworth Park Improvements to or upon the CITY's property in order to provide for drainage will be the responsibility of P.A.L.S.. P.A.L.S. shall, at its expense, also make arrangements for the installation or connection of whatever private utilities it may desire or need in connection with the construction of the Dan Whitworth Park Improvements to CITY's property. P.A.L.S. acknowledges that CITY is not responsible for providing utility service to P.A.L.S_. Any construction performed by P.A.L.S. within any utility easement area must meet utility company and CITY criteria for design and construction in such easement area. Any and all connections to water and sewer lines must occur at the existing utility connection points, unless otherwise agreed to in writing by CITY. Ail costs incurred with any relocation of existing utility lines or facilities or installation of additional utility lines or facilities shall be entirely at P.A.L.S.'s expense whether on or off the CITY's property. XI. Default If at any time during the term of this Agreement, P.A.L.S. shall fail to commence the work in accordance with the provisions of (8) this Agreement or fail to diligently provide services in an efficient, timely and careful manner and in strict accordance with the provisions of this Agreement, or fail to use an adequate number or quality of personnel or equipment to complete the work or fail to perform any of its obligations under this Agreement, then CITY shall have the right, if P.A.L.S. shall not cure any such default after thirty (30) days written notice thereof, to terminate this Agreement and may complete the work in any manner it deems desirable, including engaging the services of other parties therefor. Any such act by CITY shall not be deemed a waiver of any other right or remedy of CITY. XII. In~fel~endent Contractor P.A_L.S. covenants and agrees that it is an independent contractor and not an officer, agent, servant or employee of CITY; that P.A.L.S. shall have exclusive control of and exclusive right to control the details of the work performed hereunder and all persons performing same, and shall be responsible for the acts and omissions of its officers, agents, employees, contractors, subcontractors and consultants; that the doctrine of respondeat superior shall not apply as between CITY and P.A.L.S., its officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise between CITY and P.A.L.S.. In addition, P.A.L.S. covenants and agrees that the employees and volunteers of the P.A.L.S. participating in the construction of the Dan Whitworth Park Improvements, or participating in any other activity arising under or related to this Agreement, are solely employees and volunteers of the P.A.L.S. and they are not employees or volunteers of the CITY nor are they under the control, supervision, or administration of the CITY. P.A.L.S. shall require all employees and volunteers participating in the construction of the Dan Whitworth Park Improvements, or participating in any other activity arising under or related to this Agreement, to execute a disclosure statement, prior to their participation, acknowledging that they are solely employees and volunteers of the P.A.L.S. and that they are not employees or volunteers of the CITY, nor under the control, supervision or administration of the CITY. XIII. Successors and ;tssigns CITY and P.A.L.S. shall bind themselves, their successors, executors, administrators and assigns to the other party to this Agreement. Neither CITY nor P.A.L.S. will assign, sublet, subcontract or transfer any interest in this Agreement without the written consent of the other party. No assignment, delegation of duties or subcontract under this Agreement will be effective without the written consent of CITY. XIV. Applicable Law (9) This Agreement is entered into subject to the charter and ordinances of CITY as they may be amended from time to time, and is subject to and is to be construed, governed and enforced under all applicable Federal and State laws. P.A.L.S. will make any and all reports required in accordance with Federal, State or local law. Remec~es No right or remedy granted herein or reserved to the parties is exclusive of any right or remedy herein by law or equity provided or permitted; but each shall be cumulative of every right or remedy given hereunder. No covenant or condition of this Agreement may be waived without consent of the parties. Forbearance or indulgence by either party shall not constitute a waiver of any covenant or condition to be performed pursuant to this Agreement. ~VI. Severability If any of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Agreement are for any reason held to be invalid, void or unenforceable, the remainder of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. k'VII. Entire Agreement This Agreement embodies the complete agreement of the parties hereto superseding all oral or written previous and contemporary agreements between the parties relating to matters herein and, except as otherwise provided herein, cannot be modified without written agreement of the parties. X'~III. Notices Ail notices or communications required under this Agreement or desired to be given by the parties hereto shall be sent in writing, and shall be deemed sufficiently given when same is hand delivered or deposited in the United States mail, sufficient postage prepaid, registered or certified mail, return receipt requested, addressed to the recipient at the address set forth below: Margie Rose Assistant City Manager City of Corpus Christi Post Office Box 9277 Corpus Christi, Texas 78469-9277 P.A.L.S. Fund Inc. 1201 Leopard (lO) Corpus Christi, Texas 78401 Non-Waiver It is further agreed that one (1) or more instances of forbearance by CITY in the exercise of its rights herein shall no way constitute a waiver thereof_ XX. No Third Party Beneficiary For purposes of this Agreement, including its intended operation and effect, the parties (CITY and P.A.L.S.) specifically agree and contract that: (1) the Agreement only effects matter/disputes between the parties to this Agreement, and is in no way intended by the parties to benefit or otherwise affect any third person or entity, notwithstanding the fact that such third person or entities may be in a contractual relationship with CITY or P.A.L.S. or both; and (2) the terms of this Agreement are not intended to release, either by contact or operation of law, any third person or entity from obligations owing by them to either CITY or P.A.L.S. XXI. Procurement of Goods and Services from Corpus Christi Businesses In performing this Agreement, P.A.L.S. agrees to use diligent efforts to purchase all goods and services from Corpus Christi businesses whenever such goods and services are comparable in availability, quality and price. Venue The parties to this contract agree and covenant that this contract will be enforceable in Corpus Christi, Texas; and that if legal action is necessary to enforce this contact, exclusive venue will lie in Nueces County, Texas. XXIII Amendments The City Manager is authorized to execute amendments to this agreement which do not change the essential purpose of the agreement. Headings The headings of this Contract are for the convenience of reference only and shall not affect in any manner any of the terms and conditions hereof. (11) P.A.L.S. BY Signature Typed or Printed Name Typed or Printed Title CITY OF CORPUS CHRISTI, TEXAS BY George K. Noe City Manager ATTEST: ARMANDO CHAPA, City Secretary APPROVED AS TO FORM: day of May, 2004 BY (12) THE STATE OF TEXAS COUNTY OF NUECES P.A.L.S. BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed same for and as the act and deed of P.A.L.S., and as thereof, and for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 2004. My Commission Expires Notary Public In and For The State of Texas Notary's Printed Name THE STATE OF TEXAS COUNTY OF NUECES City of Corpus Christi Acknowledgment BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared George K. Noe, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed same for and as the act and deed of the CITY OF CORPUS CHRISTI, TEXAS, a municipal corporation of Nueces County, Texas, and as the City Manager thereof, and for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 2004. My Commission Expires Notary Public In and For The State of Texas Notary's Printed Name (13)