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)