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HomeMy WebLinkAbout026418 ORD - 08/30/2005 Page 1 of 3 AN ORDINANCE AUTHORIZING CITY MANAGER, OR DESIGNEE, TO EXECUTE A SIX MONTH USE AGREEMENT (NOT TO EXCEED 60 DAYS OF USE PER SITE) WITH VEHICLE RESTORATION SERVICES, LLC, DBA AI RCZAR, FOR USE OF SITE 1, A CONCRETE PAD SITE IN THE NORTH PARKING LOT OF MEMORIAL COLISEUM, AND OTHER SITE(S) AS DETERMINED BY CITY MANAGER, OR DESIGNEE, TO OPERATE PUBLIC HELICOPTER TOURS; PROVIDING FOR TERMINATION OF USE OF SITE 1 NO LATER THAN 12-31-2005; PROVIDING FOR TERMINATION OF USE OF SITE 1 OR THE AGREEMENT ON 3 DAYS WRITTEN NOTICE (OR IMMEDIATELY ON REASONABLE NOTICE TO PROTECT PUBLIC HEALTH, SAFETY, OR WELFARE) BY CITY MANAGER, OR DESIGNEE; AND DECLARING AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. The City Manager, or designee, is authorized to execute a six month Use Agreement with VEHICLE RESTORATION SERVICES, LLC, DBA AI RCZAR ("User") for use of Site 1, a concrete pad site in the north parking lot of Memorial Coliseum, and other site(s) as determined in the discretion of City Manager, or designee, to operate public helicopter tours. The use period for a site coincides with the promotional events zoning permits issued for the site by Development Services, not to exceed four (4) permits (for each site) of no more than fifteen (15) days for each permit. The Agreement is attached as Exhibit A and a copy is on file with the City Secretary. SECTION 2. The Use Agreement terminates on February 28, 2006. However, User's right to use Site 1 shall terminate on December 31, 2005, or an earlier date determined by City Manager, or designee, in his/her discretion, by giving User written notice at least three days before the earlier date. Either City Manager, or designee, or User may terminate the Agreement on three days written notice to the other party. City Manager, ",-- or designee, in order to protect public health, safety, or welfare may immediately terminate the use agreement (or use of a Site) by giving reasonable notice (oral or written, as determined by the circumstances) to User. SECTION 3. 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 as to consideration and voting upon ordinances at two regular meetings so that this ordinance iSKssed upon first reading as an emergency measure on this ?L r1 day of . -'l~' > t , 2005. C \(DoyleO 3 05\PARK&REC.27ILease&Us.eAgreemtI2005\050825DC.Helicopt erTours.Kendlg Collseum.Ord.doc o 2 {i 4 1 8 ATTEST: CITY OF CORPUS CHRISTI I~ Acmando Chapa. City Secretary Hlb~~ Mayor APPROVED: August 25,2005 /it3// Doyle D. Curtis Chief, Administrative Law Section Senior Assistant City Attorney For City Attorney C. \( Doyle. 0:,. 05\P ARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC. Helicopter Tours. Kendig. Coliseum. Ord .doc Page 2 of 3 Page 3 of 3 Corpus Christi, Texas j L' -j h. Day of !-t1A..t.11 A," -r-- :1 TO THE MEMBERS OF THE CITY COUNCIL Corpus Christi, Texas 20C':::- '- 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: I/we, 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, ~~dr Henry Garr , Mayor City of Corpus Christi Council Members The above ordinance was passed by the following vote: Henry Garrett !, (. ./,<.... "- / Rex A. Kinnison Brent Chesney , , J/} 't ~~ - !,; vc\,-L , John E. Marez Melody Cooper Jesse Noyola Jerry Garcia . )">} ,j.) Mark Scott (~,G William Kelly / A'" J )./ '^ , \ - C( Doyle. 02. 05\P ARK&REC.27\Lease&Us.eAg(eemt\2005\05 .0825DC. HellcopterT ours. Kendig. Coliseum. Ord .doc 026418 Page 1 of 17 CONCRETE PAD AT NORTH PARKING LOT OF MEMORIAL COLISEUM USE AGREEMENT BETWEEN CITY OF CORPUS CHRISTI AND VEHICLE RESTORATION SERVICES, LLC, DBA AIRCZAR STATE OF TEXAS 9 9 COUNTY OF NUECES 9 KNOW ALL BY THESE PRESENTS This Use Agreement is entered into by and between the City of Corpus Christi ("City"), a Texas home-rule municipal corporation, acting through its duly authorized City Manager, or the City Manager's designee, and VEHICLE RESTORATION SERVICES, LLC, DBA AIRCZAR ("User"). Section 1. Definitions. For the purposes of this Use Agreement: City means the City of Corpus Christi, Nueces County, Texas, a home rule municipal corporation. City Council means the City Council of the City. City Manager means the City Manager of the City or the City Manager's designee. Engineering Services Director means the City's Director of Engineering Services. Holdover Period means any period of time in which the User remains in the Premises after the expiration of the original term of this Use Agreement and continues to provide consideration in lieu of paying rent to the City under the terms of this Use Agreement. Improvements means buildings and other structures located on the Premises. Use Agreement means this document, including all attachments and exhibits that are referred to in this document. User means VEHICLE RESTORATION SERVICES, LLC, DBA AIRCZAR, Corpus Christi, Texas. Parks and Recreation means the City's Parks and Recreation Department. Director means the City's Director of Parks and Recreation or the Director's designee. Airport Manager means the City's Airport Manager or the Airport Manager's designee. C:\(Doyle.03. OSIP ARK&REC.27\Lease&Us.eAgreemt\200S\OS.082SDC. Mem. Coliseum. UseK. PKendig.Helicopt.erRides.doc Page 2 of 17 Premises means (1 ) "Site 1", a concrete and grass pad site in the north parking lot of Memorial Coliseum designated as shown on the drawing attached as Exhibit A1, together with all improvements; or (2) other "Site(s)" substituted for Site 1 or added as additional to Site 1 , as described in Section 3 below. Regular hours of operation means the regularly scheduled hours of User's operation. Risk Manager means the City's Director of Risk Management or the Risk Manager's designee. Sign means any signs, advertisements, notices, or other lettering that are exhibited, inscribed, painted, erected, or affixed on or about the Premises, or any part of the Premises. Section 2. Purpose. The purpose of this Use Agreement, between the City and User, is to enable User to provide helicopter tours for the public, including citizens of Corpus Christi. User may not operate the Premises for any other purpose without the prior written approval of the Director. Section 3. Premises. The Premises is Site 1 , a concrete and grass pad site in the north parking lot of Memorial Coliseum designated as shown on the drawing attached as Exhibit A1, together with all improvements. However, City Manager, or designee, in his/her discretion, may agree to substitute other Site(s) for Site 10r add other Site(s) to the premises provided User (1) obtains all required permits (including, but not limited to, Promotional Events Zoning Permits and aviation permits under sections 9-1 and 9-2 of the City Code of Ordinances) and (2) pays a reasonable fee for use of each Site, as determined by City Manager, or designee. Section 4. Use of Premises Subject to Use Agreement. User's use of the Premises is subject to the terms and conditions in this Use Agreement. The detailed conditions for using the Premises are contained in the attached Exhibit A2. Exhibit A2 may be amended as often as necessary by Director. Use of the Premises is also subject to the provisions of the Promotional Events Zoning Permits (Exhibit B) and the aviation permits issued under sections 9-1 and 9-2 of the City Code of Ordinances. This Use Agreement is made in consideration of the mutual promises and covenants contained in this Use Agreement. Section 5. Limitation of Title. City does not warrant its title to the Premises. This Use Agreement and the rights and privileges granted User in and to the Premises are subject to all covenants, conditions, restrictions, and exceptions of record or apparent. Nothing contained in this Use Agreement may be construed to imply the grant to User of rights in the Premises that exceed those owned by City. Section 6. Term; Contingent. This Use Agreement is contingent on User receiving Promotional Events Zoning Permits for each Site constituting the Premises and aviation permits for the each Site constituting Premises issued under sections 9-1 and 9-2 of the C :\(Doyie. 03. 051P ARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC. Mem. Coliseum. UseK. PKendig. HelicopLerRides.doc Page 3 of 17 City Code of Ordinances. This Use Agreement is also contingent on User furnishing to City an executed written agreement between User and the Corpus Christi Rayz consenting to this Use Agreement. Subject to all provisions of this Use Agreement, City grants to User the right to use each Site constituting the Premises for a period of time coinciding with up to four (4) Promotional Events Zoning Permits, not exceeding fifteen (15) days per permit. However, either City Manager, or designee, or User, with or without cause, may terminate this Use Agreement (or use of a Site) by giving three (3) days written notice to the other party. Further, City Manager, or designee, in order to protect public health, safety, or welfare, as determined in his/her discretion, may immediately terminate this Use Agreement (or use of a Site) by giving reasonable notice (oral or written, as determined by the circumstances) to User. Section 31 contains termination provisions for default. This Use Agreement begins on the _ day of , 2005 (the day of final City Council approval) and terminates on February 28, 2006, unless sooner terminated as provided in this Agreement. However, User's right to use Site 1 terminates on December 31, 2005, or an earlier date determined by City Manager, or designee, in his/her discretion, by giving written notice to User at least three (3) days before the earlier date. a. There shall be no Holdover Period. b. City Manager, or designee, has the absolute right to terminate this Use Agreement with or without cause upon three (3) days written notice to User. Section 7. Abandonment of Premises. If the User abandons the Premises or if the User fails to take possession of the Premises within ten days after commencement of the term of this Use Agreement, then this Use Agreement shall terminate automatically and City Manager may take immediate possession of the Premises. "Abandoned" means that the Premises become vacant or deserted for a continuous period of thirty (30) days. Section 8. Cessation of Use. a. If User for any reason ceases to use the Premises for the purposes specified in Section 2, User has the right to terminate this Use Agreement by written notice to the City Manager. b. The written notice of termination must be given at least three (3) days prior to the effective date of termination. c. If the cessation of use occurs and continues for 15 days or longer, and User does not exercise the right to terminate this Use Agreement, then the City may terminate this Use Agreement by giving User at least three (3) days notice prior to the effective termination date. C'\(Doyle.03. 05\P ARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC.Mem. Coliseum. UseK. PKendig. Helicopt. erRides.doc Page 4 of 17 d. User's obligation to provide consideration in lieu of paying rent ceases upon termination, but no consideration provided prior to termination will be refunded. e. During any cessation of use, User must maintain and regulate the use and occupancy of the Premises at User's expense as specified in Sections 2, 4, 22, 24, 28, and 29. Section 9. Surrender. User acknowledges and understands that the City's agreement to grant use of the Premises to User is expressly conditioned on the understanding that the Premises must be surrendered, upon the expiration, termination, or cancellation of this Use Agreement, in as good a condition as received, reasonable use and wear, acts of God, fire and flood damage or destruction where User is without fault, excepted. Section 10. Use Agreement Consideration. For use of Site 1, the concrete and grass pad site in the north parking lot of Memorial Coliseum, User shall pay in advance a fee of $25.00 for each calendar month, or portion of a calendar month, of use. Further, User must maintain Site 1 by repairing the concrete and grass pad site as needed and collecting litter, etc. as directed in writing by the Director. Use fees for other Sites are determined under Section 3. Section 11. Promotional Events Zoning Permits; Hours and Terms of Operation; User Responsible for Activities. a. Promotional Events Zoning Permits; Hours and Terms of Operation. Attached as Exhibit B is a certified copy of User's Promotional Events Zoning Permits. Attached as Exhibit C is a certified copy of User's Schedule of Activities, Hours and Terms of Operation. Fees and User Requirements must be reasonable so that helicopter tours are reasonably available for the public. Exhibits Band Care collectively referred to as "operation documents." User may not make any change in the original of Exhibit C without prior written consent of Director. Any change in the original of Exhibit B must be issued in writing by the Director of Development Services, or designee. The written consent or issuance and certified copies of the revised operation documents must be attached to this Use Agreement as Exhibits. b. List of officers. User must annually submit its current list of Officers and Board of Directors to the Director. List shall include name, title, address, and phone number for each Officer. c. User responsible for activities on Premises. Notwithstanding any right of City to inspect or approve any improvement or activity under this Use Agreement, User covenants that User is solely and exclusively responsible for all activities on the Premises and has control of the Premises; that the City has no responsibility for safety of, or any activity on, the Premises; and that User shall not rely on any City inspection or action. User is solely responsible for the safety of all activities on the Premises. C :\(Doyle.03. 05\P ARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC .Mem.Coliseum.UseK.PKendig.HelicopterRides.doc Page 5 of 17 Section 12. Alterations. a. User may not make any alterations, additions, or improvements to, in, on, or about the Premises, without the prior written consent of the Director. User must also obtain clearance from the Risk Manager as required by Section 29.f. of this Use Agreement. b. User, if directed by the Director, must construct and maintain screening or other safety barriers to ensure, to the extent reasonable, that persons and property are protected from helicopter operations. c. Prior to making any alterations, additions, or improvements to, in, on, or about the Premises, User must submit the plans and specifications for the alterations, additions, or improvements to the Director, and Engineering Services Director for review and written consent. d. If the Director and Engineering Services Director consent to, and the Risk Manager grants clearance for, the alterations, additions, or improvements, the User shall obtain all required permits for the construction; and the construction is subject to inspection by the Director, Engineering Services Director, City's Building Official, and their designated representatives. e. All approved alterations, improvements, and additions made by the User upon the Premises, although at User's own expense, shall, if not removed by User at any termination or cancellation of this Lease, become the property of the City in fee simple without any other action or process of law. User agrees to be contractually and financially responsible for repairing any and all damage caused by the removal. If items are installed in a manner that they become fixtures, the fixtures may not be removed by User upon termination and become the property of the City. Section 13. Taxes, Assessments, Licenses, and Fees. a. User must pay, in full prior to each respective due date, all taxes, assessments, licenses, and fees required by the User's use of the Premises; this includes, but is not limited to, any ad valorem taxes, personal property taxes, and sales taxes, that could be assessed against the Premises and any buildings, improvements, or fixtures appurtenant to the Leased Premises. b. User covenants to pay, in full prior to each respective due date, payroll taxes, Medicare taxes, FICA taxes, unemployment taxes, and all other related taxes according to Circular E Employer's Tax Guide, publication 15, as it may be amended. c. User must provide proof of payment of all taxes within 30 days after Director requests proof of payment. Failure to payor provide proof of payment is grounds to terminate this Use Agreement. c: \(Doyle. 03. 05\PARK&REC.271Lease&Us.eAgreemt\2005\05. 0825DC. Mem. Coliseum. UseK PKendig.Helicopt.erRides.doc Page 6 of 17 Section 14. No Debts. User may not incur any debts or obligations on the credit of the City during the term of this Use Agreement, and including during any Holdover Period that may occur. Section 15. No Liens. User agrees not to permit any mechanic's lien, materialman's lien, tax lien, or any other lien to become attached to the Premises, or any part or parcel of the Premises, or the improvements on the Premises, because of any work or labor performed by any mechanic, materials furnished by any materialman, or any other reason. Section 16. Assignment and Subleasing. a. User may not assign or encumber this Use Agreement, without the prior written consent of the City Manager. Any assignment or subuse must be approved in advance by the City Manager, which approval will not be unreasonably withheld. b. Upon approval of the assignment, User may request the City to release User from any further liability under the Use Agreement. City will grant the release if the assignee covenants to assume all obligations and duties of User of this Use Agreement. c. Any attempted assignment or sublet without the prior written consent of the City Manager renders this Use Agreement void. d. An assignment of the Use Agreement under the same terms and conditions is not an amendment of the Use Agreement. e. Each provision, term, covenant, obligation. and condition required to be performed by User must be binding upon any assignee, and is partial consideration for City's consent to the assignment. f. Any failure of assignee to strictly comply with each provision, term, covenant, obligation, and condition in this Use Agreement may render this Use Agreement null and void. Section 17. Signs; Warning Signs Posted. a. User may not exhibit, inscribe, paint, erect, or affix any sign at, on, or about the Premises, or any part of this Use Agreement, without the prior written approval of the Director. b. Director may require User to remove, repaint, or repair any Signs allowed. If User does not remove, repaint, or repair the Signs within ten (10) days of the Director's written demand, the City may elect to terminate this Use Agreement after ten (10) days written notice to User. Alternatively, Director may do or cause the work to be done, and User shall pay the City's costs within thirty (30) days of receipt of the Director's invoice. If payment is not timely made, Director may terminate this Use Agreement upon ten (10) days written notice to User. C.~Doyle. 03.05\P ARK&REC.27\Lease&Us.eAgreemt\2005\05 .0825DC. Mem. Coliseum. UseK. PKendig. Helicopt.erRides.doc Page 7 of 17 C. User must post the Premises with signs warning that it is a helicopter landing and take-off area and no trespassing is allowed. The Director and Airport Manager shall approve the wording on the signs and shall determine the placement of the signs. Section 18. Laws Affecting Operation of Premises and Performance. User shall comply with all Federal, State, and local laws, ordinances, rules, and regulations applicable to User's operation of the Premises and User's performance under this Use Agreement. This Use Agreement is also subject to applicable provisions of the City Charter. Section 19. Nondiscrimination. User covenants and agrees that User will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or in the Premises, on the grounds of race, religion, national origin, marital status, sex, age, disability, or in any manner prohibited by the laws of the United States or the State of Texas. The City hereby reserves the right to take the action as the United States may direct to enforce this covenant. Section 20. Drug Policy. User must adopt a Drug Free Workplace and drug testing policy that substantially conforms to the City's policy. Section 21. Violence Policy. User must adopt a Violence in the Workplace and related hiring policy that substantially conforms to the City's policy. Section 22. Maintenance. User shall maintain the Premises and all improvements in good and safe condition during the Use Agreement term. Section 23. Furniture, Fixtures, and Equipment. a. It is understood that User is responsible for furnishing and equipping the Premises and that the City has no obligation to furnish any equipment or furnishings for User. b. All personal property and trade fixtures furnished by or on behalf of User remain the property of the User, unless the personal property and trade fixtures are specifically donated to the City during the term of this Use Agreement or any Holdover Period. C. The Director retains the right to approve all furnishings and fixtures that may be installed in the Premises, during the term of this Use Agreement and any Holdover Period, prior to installation. Section 24. Utilities. The attached Exhibit A2 governs the responsibility for utilities. Section 25. City's Right of Inspection. Any officer or authorized employee of the City may enter upon the Premises, at all reasonable times and without notice, to determine whether User is providing maintenance in accordance with and as required by Section C '\(Doyle.03. 05\PARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC. Mem. Coliseum. UseK. PKendig. Helicopt.erRldes.doc Page 8 of 17 22 or for any other purpose incidental to the City's retained rights of and in the Premises. Section 26. Director's Right to Access Premises in Emergency. a. User shall provide the Director with keys to the Premises (if keys are necessary to access the Premises), and a current list of names and phone numbers, for use by the Director, in the event of an emergency. b. The Director has the right to enter the premises during the regular hours of operation or at anytime in an emergency. Section 27. City Use. The City retains the right to use or cross the Premises with utility lines and easements. City may exercise these rights without compensation to User for damages to the Premises from installing, maintaining, repairing, or removing the utility lines and easements. City must use reasonable judgment in locating the utility lines and easements to minimize damage to the Premises. Section 28. Indemnity. In consideration of allowing User to use the Premises, User ("Indemnitor") covenants to fully indemnify, save and hold harmless the City, its officers, agents, representatives, and employees (collectively, "Indemnitees") from and against any and all liability, loss, damages, claims, demands, suits, and causes of action of any nature whatsoever asserted against or recovered from City on account of injury or damage to person including, without limitation on the foregoing, premises defects, workers / compensation and death claims, or property loss or damage of any other kind whatsoever, to the extent any injury, damage, or loss may be incident to, arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly or in part: (1) User's performance under this Use Agreement; (2) User's use of the Premises and any and all activities associated with the User's use of the Premises under this Use Agreement; (3) the violation by User, its officers, employees, agents, or representatives or by Indemnitees, or any of them, of any law, rule, regulation, ordinance, or government order of any kind pertaining, directly or indirectly, to this Use Agreement; (4) the exercise of rights under this Use Agreement; or (5) an act or omission on the part of User, its officers, employees, agents, or representatives or of Indemnitees, or any of them, pertaining to this Use Agreement, regardless of whether the injury, damage, loss, violation, exercise of rights, act, or omission is caused or is claimed to be caused by the contributing or concurrent negligence of Indemnitees, or any of them, but not if caused by the sole negligence of Indemnitees, or any of C :\(Doyle. 03. OS\P ARK&REC.27\Lease&Us.eAgreemt\200S\OS .082SDC. Mem. Coliseum. UseK PKendig. Helicopt.erRides.doc Page 9 of 17 them, unmixed with the fault of any other person or entity, and including all expenses of litigation, court costs, and attorneys I fees, which arise, or are claimed to arise, out of or in connection with the asserted or recovered incident. User covenants and agrees that, if City is made a party to any litigation against User or in any litigation commenced by any party, other than User, relating to this Use Agreement, User shall, upon receipt of reasonable notice regarding commencement of litigation, at its own expense, investigate all claims and demands, attend to their settlement or other disposition, defend City in all actions relating to this Use Agreement with legal counsel satisfactory to the City Attorney, and pay all charges of attorneys and all other costs and expenses of any kind whatsoever arising from the liability, injury, damage, loss, demand, claim, or action. Section 29. Insurance. a. User shall secure and maintain at User's expense, during the term of this Use Agreement, insurance of the type and with the amount of coverage shown on the attached Exhibit D, which is incorporated in this Use Agreement by reference. User shall use an insurance company or companies acceptable to the Risk Manager. Failure to maintain the insurance during the term of this Use Agreement, at the limits and requirements shown on Exhibit D, constitutes grounds for termination of this Use Agreement. b. The Certificate of Insurance must be sent to the Risk Manager prior to occupancy of and operations at the Premises. The Certificate of Insurance must provide that the City will have thirty (30) days advance written notice of cancellation, intent to not renew, material change, or termination of any coverage required in this Use Agreement. C. User shall provide, during the term of this Use Agreement, copies of all insurance policies to the Risk Manager upon written request by the City Manager. d. The Risk Manager retains the right to review the amount and types of insurance maintained by User, to require increased coverage limits, if necessary in the interest of public health, safety, or welfare, and to decrease coverage, if so warranted. In the event of any necessary increase, User must receive ten (10) days written notice prior to the effective date of the requirement to obtain increased coverage. e. If alcoholic beverages are served on or in any Premises covered by this Use Agreement, the User shall additionally obtain or cause to be obtained alcoholic beverage liability insurance in the amount of one million dollars ($1,000,000.00) covering the event or time period when alcoholic beverages are to be served. C .\(Doyle.03.05\P ARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC. Mem.Coliseum. UseK.PKendig. Helicopt.erRides.doc Page 10 of 1 7 f. User shall, prior to any addition or alteration to, in, on, or about the Premises, obtain prior clearance, in writing, from the Risk Manager that the proposed addition or alteration will not necessitate a change or modification in the existing insurance coverage maintained by User. This clearance is in addition to the prior consent required by Section 12(a) of this Use Agreement. Section 30. Default. The following events constitute default under this Use Agreement: ( 1) Failure to provide consideration in lieu of paying rent or failure to make other payments under this Use Agreement. (2) Failure to pay utilities before the due date. (3) Failure to perform scheduled maintenance. (4) Abandonment of the Premises. (5) Failure to maintain any insurance coverages required in this Use Agreement. (6) Failure to timely pay City's invoice for the removal, repainting, or repair of any Signs at the Premises. (7) Failure to keep, perform, and observe any other promises, covenants and conditions contained in this Use Agreement. Section 31. City's Remedies on User's Default. Upon the occurrence of any event of default, Director, at Director's option, in addition to any other remedy or right given under this Use Agreement or by law, may do one or more of the following: (1) Director may give notice to User that this Use Agreement terminates upon the date specified in the notice, which date will be no earlier than three (3) days after the giving of the notice. (2) Immediately or at any time after the occurrence of the event of default and without notice or demand, or upon the date specified in a notice, if given, or in any notice issued under law, Director may enter into and upon the Premises and retake possession, by legal proceedings or otherwise, expel User and anyone claiming through or under User, remove User's or a claimant's goods and effects, forcibly, if necessary, and store the goods in the name and at the expense of User. Section 32. Enforcement Costs. If the City files any legal action or proceeding to repossess the Premises, collect the Use Agreement payment(s) due under this Use Agreement, collect for any damages to the Premises, or to enforce in any other way the provisions of this Use Agreement, User agrees to pay all court costs and expenses and the sum that a court of competent jurisdiction adjudges as reasonable attorneys' fees in the action or proceeding, or in an appeal, if a judgment is rendered in favor of the City. C:~Doyle. 03. 05\PARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC. Mem. Coliseum. UseK. PKendlg.Hellcopt.erRides.doc Page 11 of 17 Section 33. Modifications. No provision of this Use Agreement may be changed, modified, or waived, unless the change, modification, or waiver is made in writing and signed by persons authorized to sign agreements on behalf of each party. Section 34. Contact Person/Use Agreement Administrator. For this Use Agreement, the City's contact person and Use Agreement administrator is the Director. Section 35. Notice. a. All notices, demands, requests, or replies provided for or permitted under this Use Agreement by either party must be in writing and must be delivered by one of the following methods: (i) by personal delivery; (ii) by deposit with the United States Postal Service as certified or registered mail, return receipt requested, postage prepaid; (iii) by prepaid telegram; (iv) by deposit with an overnight express delivery service, for which service has been prepaid; or (v) by fax transmission. b. Notice deposited with the United States Postal Service in the manner described above will be deemed effective two (2) business days after deposit with the United States Postal Service. Notice by telegram or overnight express delivery service will be deemed effective one (1) business day after transmission to the telegraph company or overnight express carrier. Notice by fax transmission will be deemed effective upon transmission with proof of delivery. c. All the communications must only be made to the following: IF TO CITY: IF TO USER: City of Corpus Christi Parks and Recreation Dept. Peter Kendig, Member Vehicle Restoration Services, LLC, dba AirCzar P.O. Box 9277 118 Sea View Lane Corpus Christi, TX 78469-9277 Corpus Christi, TX 78411 Attn: Director of Parks & Recreation (361) 884-2400 (361 ) 880-3464 d. Either party may change the address to which notice is sent by using a method set out in subsection a. of this section. User shall notify the City of an address change within ten (10) days after the address is changed. Section 36. Force Majeure. No party to this Use Agreement shall be liable for delays or failures in performance due to any cause beyond the party's control including, without limitation, any delays or failures in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier, severe inclement weather, riots or interference by civil or military authorities. The delays or failures to perform extend C :~Doyte. 03. OS\PARK&REC.27\lease&Us.eAgreemt\200SIOS.082SDC. Mem. Coliseum. UseK. PKendig.Hellcopt.erRides.doc Page 12 of 17 the period of performance until these exigencies have been removed. User shall inform the City in writing of proof of the force majeure within three (3) business days or otherwise waive this right as a defense. Section 37. Relationship of Parties. This Use Agreement establishes a licensor/licensee relationship, and no other relationship. This Use Agreement must be construed conclusively in favor of that relationship. In performing this Use Agreement, the City and User will each act in an individual capacity and not as agents, representatives, employees, employers, partners, joint-venturers, or associates of one another. The employees or agents of either party may not be, nor be construed to be, the employees or agents of the other party for any purpose. Section 38. Not for Benefit of Third Parties. This Use Agreement is only for the benefit of the City and User, and no third party has any rights or claims under this Use Agreement or against the City. Section 39. Publication Costs. User shall pay for the cost of publishing the Use Agreement description and related ordinance, as required by the City's Charter, in the legal section of the local newspaper. Section 40. Interpretation. This Use Agreement shall be interpreted according to the Texas laws that govern the interpretation of contracts. Section 41. Survival of Terms. Termination or expiration of this Use Agreement for any reason does not release either party from any liabilities or obligations under this Use Agreement that (a) the parties have expressly agreed survive any the termination or expiration; (b) remain to be performed; or (c) by their nature would be intended to be applicable following the termination or expiration of this Use Agreement. Section 42. Captions. The captions utilized in this Use Agreement are for convenience only and do not in any way limit or amplify the terms or provisions of this Use Agreement. Section 43. Severability. a. It is the definite intent of the parties to this Use Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Use Agreement be given full force and effect for its purpose. Therefore, if, for any reason, any section, paragraph, subdivision, clause, provision, phrase, or word of this Use Agreement or the application of this Use Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future law or by a final judgment of a court of competent jurisdiction, then the remainder of this Use Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected by the law or judgment. b. To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future law effective during the term of this Use Agreement, then the C:\(Doyle.03. 05\PARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC. Mem.Coliseum. UseK.PKendig. HellcopterRldes.doc Page 13 of 17 remainder of this Use Agreement is not affected, and in lieu of any illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to the Illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Use Agreement automatically. Section 44. Venue. Venue lies in Nueces County, Texas, where this Use Agreement was entered into and will be performed. Section 45. Entirety Clause. This Use Agreement and the attachments and exhibits incorporated into this Use Agreement constitute the entire agreement between the City and User for the purpose granted. All other agreements, promises, representations, and understandings, oral or otherwise, with reference to the subject matter of this Use Agreement, unless contained in this Use Agreement are expressly revoked, as the parties intend to provide for a complete understanding within the provisions of this Use Agreement and its exhibits of the terms, conditions, promises, and covenants relating to User's operations and the Premises to be used in the operations. Section 45. Binding Use Agreement. It is further mutually understood and agreed that the covenants and agreements contained in the Use Agreement, to be performed by the respective parties, are binding on the parties, and their respective successors and assigns. Section 47. Acknowledgment. Each party expressly agrees that it has independently read and understood this Use Agreement. By User's execution of this Use Agreement, User acknowledges and understands that this Use Agreement is not binding on the City until properly authorized by the City Council and executed by the City Manager, or designee. C 'I(Doyle.03.05\PARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC. Mem.ColIseum. UseK. PKendig. Hellcopt.erRides.doc Page 14 of 17 EXECUTED IN DUPLICATE ORIGINALS on the _day of ,2005. USER: VEHICLE RESTORATION SERVICES, LLC, DBA AIRCZAR By: Peter Kendig, Member STATE OF TEXAS COUNTY OF NUECES This instrument was acknowledged before me on , 2005, by Peter Kendig, Member, Vehicle Restoration Services, LLC, dba AirCzar. Notary Public, State of Texas Printed Name: Seal: Expiration Date: C:\(Doyle.03.05\PARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC.Mem.Coliseum. UseK PKendig. Helicopl.erRides.doc Page 15 of 17 ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary George K. Noe City Manager APPROVED 25 August 2005 ~ Doyle D. Curtis Chief, Administrative Law Section Senior Assistant City Attorney For City Attorney STATE OF TEXAS ~ ~ COUNTY OF NUECES ~ This instrument was acknowledged before me on , 2005, by George K. Noe, City Manager of the City of Corpus Christi, a Texas home-rule Municipal Corporation, on behalf of the corporation. - Notary Public, State of Texas Printed Name: Seal: Expiration Date: C:\(Doyle. 03.05\P ARK&REC.271Lease&Us.eAgreemt\2005\05.0825DC. Mem. Coliseum. UseK. PKendig.Helicopt.erRldes.doc Page 16 of 17 EXHIBIT A2 DETAILED CONDITIONS FOR USING PREMISES (CONCRETE PAD AT NORTH PARKING LOT OF MEMORIAL COLISEUM) USE AGREEMENT BETWEEN CITY OF CORPUS CHRISTI AND VEHICLE RESTORATION SERVICES, LLC, DBA AIRCZAR This Exhibit A2 contains detailed conditions for using the Premises ("Premises"). This ExhibitA2 is attached to and governed by, and the Premises is defined in, the USE AGREEMENT between the City Of Corpus Christi, Texas and Vehicle Restoration Services, LLC, dba AirCzar. Section 1 Helicopter landinglTaking Off Permit Requirements A. Helicopter LandinglTaking Off Unlawful. It is unlawful for any person to land or take off in a helicopter within the city of Corpus Christi at any place other than an approved Airport or Federal Aviation Administration ("FAA") designated heliport without complying with the following regulations: 1 A helicopter landing/taking off permit must be obtained from the Airport Manager in accordance with subsection B of this section. 2 The helicopter operator must comply with FAA regulations. 3. Each flight must be conducted at an altitude and over a route that will allow the helicopter to land in an emergency without hazard to persons or property on the earth surface. 4 The landing space shall be at least one and one-half times the diameter of the rotor blades. 5. The landing space shall be protected by rope, barricade or similar means suitable for restraint of persons. Personnel shall be stationed at point(s) inside or adjacent to the landing area to guard against persons from entering the landing space. 6 All operations shall be conducted in accordance with all applicable Federal, State and Local regulations. B. Permit--Application. (1) Application for a helicopter landing/taking off permit shall be made in writing to the Airport Manager at least thirty days in advance of the date of the contemplated helicopter landing; provided, the Airport Manager, in his discretion, may reduce or waive the application time period for an unexpected occasion when the reduction or waiver will not result in or contribute to creating a hazardous condition. The application shall comply with applicable FAA regulations. C:\(Doyle. 03.05\P ARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC. Mem. Coliseum.UseK. PKendig. Helicopt.erRides.doc Page 1 7 of 17 (2) The helicopter landing/taking off permit application form shall include the following information, together with any additional information deemed by the Airport Manager to be necessary or desirable to administer the provisions of Chapter 9, Code of Ordinances: a The name, address and telephone number of the applicant; name, address and telephone number of any sponsoring organization; name, address and telephone number of any persons having charge or control of the helicopter landing; b The date and time of the proposed helicopter operation and landing and taking off; c The location of the proposed helicopter operation and landing and taking off place; d The applicant's security plan detailing safety and security precautions to prevent on- the-ground injuries; e The route to be traveled by the helicopter in approaching and leaving the landing space; f. Fueling plan if off airport fueling is planned; g. Proof of insurance as required by the City's' Risk Manager; and h The purpose for the helicopter operation and landing. C. Permit--Effect. A permit issued pursuant to the provisions of subsection B of this section shall authorize the helicopter operation and landing and taking off conducted in accordance with the permit. The Airport Manager may impose conditions on the issuance of the permit and may impose regulations to the helicopter operation and landing and taking off in addition to those provided by Chapter 9, Code of Ordinances, all as the Airport Manager deems necessary for the safety of persons or property. D. Exception-The operators of military, law enforcement or medical evacuation/rescue helicopters are excepted from the foregoing requirements while acting in the scope of their duties. Section 2. Additional Conditions Imposed by Parks Director for Use of City Property See Attached. C.\(Doyte.03.05\PARK&REC.27\Lease&Us.eAgreemt\2005\05.0825DC. Mem. Coliseum. UseK.PKendlg.Helicopt.erRides.doc EXHIBIT A-1 Page 4 of 9 Attachment l. Designated Helicopter Tours Operations Site CITY OF CORPUS CHRlSTI DEVELOPMENT SERVICES Bl'ILDlNG INSPECTION D1VISIOJ\ 2406 LEOPARD STREET CORPUS CHRlSTI. TEXAS 78408 (361) 826-3240 FAX 826-3006 .' ~2 E X~)lb 1+ C) TEMPORARY PROMOTIONAL EVENT PERMIT APPLICATION (Per Article 27.A of Zoning Ordinance) '\lame tt-rerz.. keru D i ~ Date ~. \.-u:os Please print full name and addres' \1ailing Address I tv Cof1:::uS Y4! C "BA\.l)\..i.yrA.-\ Phone No. Cht2-l5-r'.~.~ State. ~ _ Zip Code 1<6 <(SeLl . ~ ():) 531 '-o,-\stl Drivers LlCense# ..........JLQ j f s. C- -- ,'.... (.~ Date Of Birth I . .) . ~~ / SL4-- Name of Temporary Promotional Event 1-\:\ e CZAK' DuratIon of hent (15 days maximum) From _...1.-/ "3 I '2c:cf""' to ~ ~/ 2t:X:6 -l. l.ocation of Operation (Temporary Promotional Event) Q.c)\\"5\"\..>1-J\ ?AeKlo-./6 L>:::T (L...\~) L.:::>"-lCren. At(6H 4c..2- S .5hCQeLJ"-iE i3LID Cv'ei2F161-1-T TC- Be- CNeI2 '\U'Att::rZ . 'Ga:PT furz. lAf..la l.l5 .,. ~. Fees to be charged to public " y.r;;Q t'^1~ p:R- .. I J .f... h. Hours of Operation: Please select from the followmg From to I I -- C&>pNl / tD A; VI Temporary Promotional Event that there Wl]] be food mvohed. __' __ __ .$]48.00 [,.-/ Temporary PromotlOnal f\'ent and there w1I] not be food ll1volved... .....$ 48.00 There will be a tent mvohed (flame spread certJfledJ --; I hereby affiml under the penalty of perjury that all of the acts, statements, and answers herein an true ( I . "j- ". ..,/ ~ - . 'S 1.l A --<"""~--1'AC~' Signature of Applicant I.. Cj_ i. '-C > Date CITY OF CORPlJS CHRISTI DEVELOPMENT SERVICES BUILDING INSPECTION DIVISION 2406 LEOPARD STREET CORPUS CHRISTL TEXAS 78408 (361) 826-3240 FAX 826-3006 TEMPORARY PROMOTIONAL EVENT PERMIT APPLICATION (Per Article 27.A of Zoning Ordinance) ~ame Date Please print full name and address Mailing Address CllY___~ Phone No. State ___~ Zip Code Dnver's License# Date Of Birth / / '\lame of Temporary Promotional Event ~ Duration of Event (15 days maximum) From to / / -- ... !~ocation of Operation (Temporary Promotional Event) -:, Fees to be charged to public: S ,) Hours of Operation: Please select from the following: From to / I -- Temporary Promotional Event that there will be food Involved.......... ...$148.00 Temporarv Promo\]onal Event and there will not be food Involved.. ......$ 48.00 There will be a tent Involved (flame spread certlfled) c. ! hereby affirm under the penalty of perjury that all of the acts, statements, and answers herein drc true. Date Signature of Applicant CITY OF CORPUS CHRISTI-DEVELOPMENT SERVICES-BLDG INSPECTION MAILING: 2406 LEOPARD ST (FROST BANK-1ST FLOOR) CORPUS CHRISTI, TEXAS 78401 TELEPHONE # (361) 826-3240 FAX # (361) 826-3006TELEPHONE # Application Number Property Address . Tax Account Number: Tenant nbr, name . . . . . . Applic~tion type descriptlon SubdIvIsIon Name . . . . . . Property Use. . . . . Property ZonIng . . . Application valuation Owner 05-00010391 Date 402 S SHORELINE BLVD 0474-0000-0030 AIR CZAR TEMPORARY PROMOTIONAL EVENT BAY FRONT PLAN PUBLIC ASSEMBLY BAY FRONT BUSINESS o 9/01/05 Contractor PETER KENDIG 4470 BALDWIN BLVD CORPUS CHRISTI (361) 884-2400 - ____u____uu__p_ Structure Information 000 000 ----------------- Occupancy Type TENTS - ------- ------------------------------------------------------------- Permit . . . .. BUILDING PERMIT Additional desc . Phone Access Code Permit Fee Issue Date CITY OF CORPUS CHRISTI POBOX 9277 CORPUS CHRISTI TX 78469 TX 78408 640680 48.00 9/01/05 Plan Check Fee Valuation .00 o Qty Unit Charge Per BASE FEE Extension 48.00 Fee summary Charged Paid Credited Due - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ---------- ---------- Permit Fee Total 48.00 .00 .00 48.00 Plan Check Total .00 .00 .00 .00 Grand Total 48.00 .00 .00 48.00 ~;c ~-,: ~:r:; i f''-',c- u.~ (" 1- r t-,"f j.!1 to"'> ". I"'" - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -'-.- - - ~ NEW ENERGY CODES ADOPTED, PERMITS WILL BE REQUIRED ON ALL REMODELING PROJECTS CONCERNING MOLD REMEDIATION CASES. TO SCHEDULE INSPECTIONS CALL (361) 886-4848 CATEGORY #2489. PLElI.SE PROVIDE APPLICATION NUMBER INSPECTION TYPE & YOUR NAME. CITY OF CORPUS CHRISTI-DEVELOPMENT SERVICES-BLDG INSPECTION MAILING: 2406 LEOPARD ST (FROST BANK-1ST FLOOR) CORPUS CHRISTI, TEXAS 78401 TELEPHONE # (361) 826-3240 FAX # (361) 826-3006TELEPHONE # Application Number Property Address . Tax Account Number: Tenant nbr, name . . . Appltc~tton description SUbdlvlslon Name . . . Property Use. . Property Zonlng Permit Additional desc . Phone Access Code 05-00010391 402 S SHORELINE BLVD 0474-0000-0030 AIR CZAR TEMPORARY PROMOTIONAL BAY FRONT PLAN PUBLIC ASSEMBLY BAYFRONT BUSINESS Page Date EVENT BUILDING PERMIT 640680 Required Inspections Seq Phone Insp Insp# Code Description Initials " j . , 1000 B040 BUILDING, FINAL 5000 FM10 FIRE ON SITE FINAL- 880-3930 2 9/01/05 Date I I =1=1= EXHIBIT C Hours of Operations are as follows: 10 a.m. to 6 p.m. on the days shown in the City's Promotional Events Zoning Permits. Fee Schedule: The passenger fees shall be reasonable as required in the Use Agreement. H '\LE G-DIR\OlgaR\Doyle\Park&Rec\05 .090 1 DC. Helicopt.erT ours.Kending .Coliseum. Exhibt C.doc Page 1 of 2 EXHIBIT D INSURANCE REQUIREMENTS I. PERMITTEE'S LIABILITY INSURANCE A. Permittee (User) must not commence work under this agreement until all insurance required herein has been obtained and such insurance has been approved by the City. Permittee must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. Permittee must furnish to the City's Risk Manager, two (2) copies of Certificates of Insurance, showing the following minimum coverage by insurance company(s) acceptable to the City's Risk Manager. The City must be named as an additional insured for the General Liability policy and a blanket waiver of subrogation is required on all applicable policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 day wrltten notice of cancellation, non-renewal, Bodily Injury and Property Damage materlal change or termination and a 10 day wrltten Per occurrence aggregate notice of cancellation for non-payment of premium is required on all certificates Aircraft Liability Insurance $1,000,000 Combined Single Limit Commercial General Liability including: $1,000,000 Combined Single Limit 1. Commercial Form 2. Premises - Operations 3. Productsl Completed Operations Hazard 4. Contractual Liability 5. Broad Form Property Damage 6. Independent Contractors AUTOMOBILE L1ABILlTY-0WNED, NON-QWNED $50,000 Combined Single Limit OR RENTED Applicable when employs paid employees other WORKERS' COMPENSATION than himself I herself , Which complies with the Texas Workers' EMPLOYERS' LIABILITY Compensation Act and Paragraph 1\ of this Exhibit $100,000 C. In the event of accidents of any kind, Pennittee must furnish the Risk Manager with copies of all reports of the accidents within 10 days of any accident. Helicopter Rides Ins. req. 8-23-05 ep Risk Mgmt. C:\(Doyle.03.05IPARK&REC.271lease&Us.eAgreemtl2OO5\Os.0823DC.COllseum.UseK.Kendlg.Hellcopt.erRldes.lnsExhbD.doc Page 2 of 2 II. ADDITIONAL REQUIREMENTS A. When applicable, Permittee (User) must obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The contract for coverage must be written on a policy and endorsements approved by the Texas Department of Insurance. Workers' compensation coverage must be in amounts sufficient to assure that all workers' compensation obligations incurred by Permittee are promptly met. B. Certificate of Insurance: The City of Corpus Christi must be named as an additional insured on the General liability coverage and a blanket waiver of subrogation is required on all applicable policies. If your insurance company uses the standard ACORD form, the cancellation clause (bottom right) must be amended by adding the wording "changed or" between "be" and "canceled", and deleting the words, "endeavor to", and deleting the wording after "left". In lieu of modification of the ACORD form, separate policy endorsements addressing the same substantive requirements are mandatory. The name of the project must be listed under "Description of Operations". At a minimum, a 30-day written notice of cancellation, material change, non- renewal or termination and a 10~ay written notice of cancellation for non- payment of premium is required. C. If the Certificate of Insurance on its face does not show the existence of the coverage required by items 1.B (1 )-(6), an authorized representative of the insurance company must include a letter specifically stating whether items 1.B. (1 )-(6) are included or excluded. Helicopter Rides ins. req. 8-23-05 ep Risk Mgmt. C:\lDoyte.03.05IPARK&REC.27\Lease&Us.eAgreernt\2005lO5.0823DC.Collseum. UseK.Kendlg.HellcopterRldes.lnsExhbD.doc