Loading...
HomeMy WebLinkAbout028473 ORD - 01/26/2010Page 1' of 1 ORDINANCE AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE USE AGREEMENT WITH THE JUNIOR LEAGUE OF CORPUS CHRISTI FOR THE DESIGN, INSTALLATION AND DONATION OF PARK IMPROVEMENTS AT THE ANTONIO E. GARCIA PARK LOCATED AT THE CORNER OF AGNES AND SEVENTEENTH STREETS; AND DECLARING AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. That the City Manager, or designee, is authorized to execute a Use Agreement for the design, installation, and donation of improvements at the Antonio E. Garcia Park with the Junior League of Corpus Christi. The Agreement is on file with the office of the City Secretary. The Agreement takes effect upon the final adoption of the ordinance authorizing an amendment to the lease with South Texas Institute for the Arts to decrease the leased premises for the Antonio E. Garcia Arts and Education Center. A copy of the agreement is attached and will be filed with the City Secretary's Office. SECTION 2. That upon written request of the Mayor or five Council members, copy attached, the City Council finds and declares an emergency due to the need for immediate action necessary for the efficient and effective administration of City affairs and suspends the Charter rule that requires consideration of and voting upon ordinances at two regular meetings so that this ordinance is pas ed and takes effect ' d upon first reading as an emergency measure this the o ay of , 2010. ATTEST: CITY OF CORPUS CHRISTI M�e�� Armando !"apa, ity Se ? tary Joe Ada e, Mayor Approved: January 20, 2010 Lisa Ag , Interim City Attorney ;254'73 H:\LEG-DIR\Lisa\2010 Ordinance\Junior League Antonio E Garcia Park Improvements.doc INDEXED Corpus Christi, Texas Day of k/W-itA-et_ , 2010 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: 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, l Joe AdiA1191411. Mayor Council Members The above ordinance was passed by the following vote: Joe Adame Chris N. Adler Brent Chesney —444— Larry Elizondo, Sr. ?417/ Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott U28473 STATE OF TEXAS COUNTY OF NUECES USE AGREEMENT RELATING TO CONSTRUCTION AND DONATION OF IMPROVEMENTS AT THE ANTONIO E. GARCIA PARK THIS USE AGREEMENT RELATING TO CONSTRUCTION AND DONATION OF IMPROVEMENTS AT THE ANTONIO E. GARCIA PARK (Agreement) is made and entered into this 24th day of February, 2010, after the reading of the Amendment to the CITY's Lease for the Antonio E. Garcia Arts and Education Center, by and between the Junior League of Corpus Christi, Inc., a Texas nonprofit corporation (JUNIOR LEAGUE), and the City of Corpus Christi, Texas, a municipal corporation (CITY). WHEREAS, JUNIOR LEAGUE desires to use certain areas of CITY property known as the Antonio E. Garcia Park to construct and donate to CITY playground facilities, outdoor classroom and fitness walking path (IMPROVEMENTS); and WHEREAS, JUNIOR LEAGUE and CITY mutually desire to enter into this Agreement for the benefit of the public; and WHEREAS, JUNIOR LEAGUE has demonstrated to City Manager that JUNIOR LEAGUE has sufficient funding to complete its obligations under this Agreement, as evidenced by Exhibit A attached hereto; NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements contained and subject to the terms and conditions stated in this Agreement, JUNIOR LEAGUE and CITY agree as follows: 1. TERM This Agreement shall commence on the date first written above and terminate upon completion of the Improvements described below by JUNIOR LEAGUE and their acceptance by CITY. The parties anticipate that the Improvements shall be completed and donation of the Improvements to CITY by JUNIOR LEAGUE completed by April 10, 2010. If there is any delay past April 10, 2010 in the completion of the Improvements, such delayed Improvements shall be included under the terms of this Agreement and shall be considered donated to CITY by JUNIOR LEAGUE as of April 10, 2010, although JUNIOR LEAGUE retains responsibility for such delayed Improvements' completion, as stated in this Agreement. 2. USE OF CITY'S PROPERTY In consideration of the construction of Improvements and donation thereof to CITY, CITY does hereby grant to JUNIOR LEAGUE during the term of this Agreement the use of certain areas of the Antonio E. Garcia Park as indicated on the JUNIOR LEAGUE plans for construction of the Improvements. (CITY'S Property). CITY grants use of CITY's property only for the construction of certain Improvements. The description and design of the Improvements is attached as Exhibit A. JUNIOR LEAGUE agrees to maintain CITY's property 1 in a sanitary, safe and clean condition during JUNIOR LEAGUE's use of CITY's property. JUNIOR LEAGUE further agrees and covenants that CITY's property and any and all Improvements shall at all times be subject to inspection by CITY. 3. CONSTRUCTION OF IMPROVEMENTS A. During the term of this Agreement, JUNIOR LEAGUE shall oversee construction of the Improvements in accordance with this Agreement. JUNIOR LEAGUE shall review all construction invoices and shall make payment if the work has been satisfactorily completed. Improvement plans and specifications and all construction upon CITY's property shall comply with all applicable federal, state or municipal laws and requirements. During the progress of all work, CITY' s duly authorized representative may enter upon the premises and make inspections reasonably necessary for the purpose of satisfying CITY that the work or construction meets its requirements or standards. Before any work on CITY property begins, JUNIOR LEAGUE shall present the Director of Parks and Recreation with evidence of JUNIOR LEAGUE's and contractors' insurance coverages and CITY building and construction permits. JUNIOR LEAGUE shall comply with the insurance requirements attached as Exhibit B, and require its contractor(s) also to comply with the attached insurance requirements. B. The plans and specifications are subject to approval of the CITY's Director of Engineering. Construction of improvements shall not begin until the CITY's Director of engineering has reviewed and approved the construction plans and specifications. C. Except as otherwise specified herein, JUNIOR LEAGUE shall include in all JUNIOR LEAGUE construction agreements for the Improvements, the following provisions: 1. Contractor hereby agrees to waive all claims, release, indemnify, defend and hold harmless CITY and all of its officials, officers, agents and employees, in both their public and private capacities, from and against any and all liability, claims, losses, damages, suits, demands or causes of action including all expenses of litigation and/or settlement, court costs and attorney fees which may arise by reason of injury to or death of any person or for loss of, damage to, or loss of use of any property occasioned by error, omission, or negligent act of Contractor, its officers, agents, employees, subcontractors, invitees or any other person, arising out of or in connection with the performance of this agreement, and Contractor shall at Contractor's own cost and expense defend and protect CITY from all those claims and demands, 2. In any and all claims against any party indemnified hereunder by any employee of Contractor, any subcontractor, anyone directly or indirectly employed by any ofthem or anyone for whose acts any of themmaybe liable, the indemnification obligation herein provided shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Contractor or any subcontractor under workman's compensation or other employee benefit acts. D. JUNIOR LEAGUE expressly agrees that it will neither give nor grant or purport to give or grant any mechanic's or materialmen's lien upon the CITY's property or upon any Improvements thereupon in the process of construction or repair, or allow any condition to 2 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 improvements thereon, and JUNIOR LEAGUE shall discharge each of these liens within thirty (30) days after notice of filing of each lien. E. The Director of Engineering may direct JUNIOR LEAGUE or its contractor to perform reasonable corrective action in construction of Improvements. F. JUNIOR LEAGUE shall conduct its operations under this Agreement in an orderly and proper manner, considering the nature of the operation, so as not to unreasonably annoy, disturb or endanger others. 4. COST OF IMPROVEMENTS The complete cost of developing all necessary plans and specifications, as well as the cost of materials and construction of the Improvements by JUNIOR LEAGUE, as provided in this Agreement and on Exhibit A, within the aggregate budget shown on Exhibit A, shall be borne solely by JUNIOR LEAGUE and shall be at no expense to CITY whatsoever. 5. OWNERSHIP AND MAINTENANCE OF IMPROVEMENTS Upon completion or installation of each of the Improvements on or in CITY's property during the term of this Agreement, JUNIOR LEAGUE shall donate each Improvement to CITY and relinquish all maintenance obligations thereto to CITY as of the date of said completion or installation. All Improvements that may be installed or erected by JUNIOR LEAGUE after the term of this Agreement shall become part of CITY's property upon completion of the Improvement by JUNIOR LEAGUE as provided in this Agreement. JUNIOR LEAGUE shall have no responsibility to maintain any Improvement as of the completion of the Improvement by JUNIOR LEAGUE, except as provided in this Agreement. Any warranties given to JUNIOR LEAGUE regarding Improvements, or any part thereof, shall be transferred and assigned to CITY at the same time as the Improvements are transferred to CITY. JUNIOR LEAGUE agrees to execute all documents that CITY deems necessary to accomplish the transfer of the Improvements to CITY. 6. INDEMNIFICATION JUNIOR LEAGUE hereby agrees to waive all claims, release, indemnify and hold harmless CITY and all of its officers, officials, agents, and employees, in both their public and private capacities, from any and all liability, claims, suits, demands, losses, damages, 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, damage 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 JUNIOR LEAGUE, its officers, agents, employees, invitees, or other person for whom it is legally liable, with regard to the performance of this Agreement. JUNIOR LEAGUE's indemnification and hold harmless obligation hereunder shall end at the expiration of the term of this Agreement. 3 In addition, JUNIOR LEAGUE does hereby agree to waive all claims, release, indemnify, defend and hold harmless CITY and all of its officers, officials, agents, and employees, in both their public and private capacities, from any and all liability, claims, suits, demands, losses, damages, 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 JUNIOR LEAGUE employee or volunteer or for loss of, damage to, or loss of use of any property of any JUNIOR LEAGUE employee or volunteer, arising out of or in connection with the performance of this Agreement. During the term of this Agreement, this indemnification by JUNIOR LEAGUE shall include, but not be limited to liability arising from worker's compensation and general liability claims. 7. RULES AND REGULATIONS, SIGNAGE AND DEVELOPMENT STANDARDS JUNIOR LEAGUE 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, members, contractors and suppliers to observe and obey the same. Signage shall comply with CITY ordinances. JUNIOR LEAGUE 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. 8. DEFAULT If at any time during the term of this Agreement, JUNIOR LEAGUE shall fail to commence the work in accordance with the provisions of this Agreement or fail to diligently provide services in an efficient, timely and careful manner and in substantial 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 JUNIOR LEAGUE shall not cure any 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. This act by CITY shall not be deemed a waiver of any other right or remedy of CITY. 9. INDEPENDENT CONTRACTOR JUNIOR LEAGUE covenants and agrees that it is an independent contractor and not an officer, agent, servant or employee of CITY; that JUNIOR LEAGUE 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, members, contractors, subcontractors and consultants; that the doctrine of respondeat superior shall not apply as between CITY and JUNIOR LEAGUE, its officers, agents, employees, members, contractors, subcontractors and consultants and nothing herein 4 shall be construed as creating a partnership or joint enterprise between CITY and JUNIOR LEAGUE. Additionally, JUNIOR LEAGUE covenants and agrees that the employees and volunteers of JUNIOR LEAGUE participating in the construction of the Improvements, or participating in any other activity arising under or related to this Agreement, are solely employees and volunteers of JUNIOR LEAGUE and they are not employees or volunteers of CITY and they are not under the control, supervision or administration of CITY and they agree to hold the City harmless for any injury, damage or claim they may sustain while participating in the Improvements construction process. 10. SUCCESSORS AND ASSIGNS CITY and JUNIOR LEAGUE shall bind themselves, their successors, executors, administrators and assigns to the other party to this Agreement. Neither CITY nor JUNIOR LEAGUE 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 both parties. 11. NOTICES Unless CITY designates otherwise in writing, all written communications to CITY pursuant to this Agreement shall be sent to CITY at: Margie Rose Assistant City Manager City of Corpus Christi Post Office Box 9277 Corpus Christi, Texas 78469-9277 Unless JUNIOR LEAGUE designates otherwise in writing, all written communications to JUNIOR LEAGUE pursuant to this Agreement shall be sent to JUNIOR LEAGUE at: The Junior League of Corpus Christi, Inc. President 4050 Weber Corpus Christi, Texas 78411 5 IN WITHESS WHEREOF, each of the parties has caused this Agreement to be executed in its name and on its behalf as of the day and date first above written. THE JUNIOR LEAGUE OF CORPUS CHRISTI, INC. By: Amy Brown, President CITY OF CORPUS CHRISTI, TEXAS By: Angel Escobar, City Manager ATTEST: Armando Chapa, City Secretary APPROVED AS TO FORM ONLY: Lisa Aguilar, City Attorney 6 State of Texas County of Nueces BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Amy Brown, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed same for and as the act and deed of THE JUNIOR LEAGUE OF CORPUS CHRISTI, INC. and as President 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 January, 2010. Notary Public In and For the State of Texas State of Texas County of Nueces BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Angel Escobar, 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 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 January, 2010. Notary Public In and For the State of Texas 7 EXHIBIT A JUNIOR LEAGUE OF CORPUS CHRISTI, INC. ANTONIO E. GARCIA PARK IMPROVEMENTS BUDGET 2009/2010 Junior League of Corpus Christi 2009/2010 Playground Pals budget Earl C. Sams Foundation Grant Coastal Bend Diabetes Initiative Grant $20,000.00* $5,000.00 $10,000.00 Total Budget $35,000.00 COST AND DESCRIPTION OF IMPROVEMENTS Playground / Fitness Equipment Walking Track The walking track will be 6 feet wide and four inches thick with crushed concrete over a geo grid or geo mat with a plastic edge barrier. Soil will be pre-treated for weeds. Outdoor Classroom (Donated) Landscaping (Donated) $24,984.21 $ 5,000.00 ($ 2,000.00 value) ($ 8,000.00 value) Total cost of Improvements $29,984.21 *$10,000 of this $20,000 currently has been approved and the other $10,000 is pending anticipated approval by the Junior League Membership on January 22, 2010. 8 EXHIBIT B INSURANCE REQUIREMENTS I. JUNIOR LEAGUE and CONTRACTOR'S LIABILITY INSURANCE A. JUNIOR LEAGUE and its Contractor shall not commence work under this agreement until all insurance required herein has been obtained and approved by the CITY's Risk Manager or designee. JUNIOR LEAGUE and its Contractor must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been so obtained. B. JUNIOR LEAGUE and its Contractor shall furnish to the Risk Manager or designee two (2) copies of Certificates of Insurance, showing the following minimum coverage by an insurance company(s) acceptable to the Risk Manager or designee. 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 written notice of cancellation, non- renewal, material change or termination required on all certificates and policies Bodily Injury and Property Damage Per occurrence / aggregate Commercial General Liability including: 1. Broad Form 2. Premises - Operations 3. Products/ Completed Operations 4. Contractual Liability 5. Broad Form Property Damage 6. Independent Contractors - Volunteers $1,000,000 COMBINED SINGLE LIMIT AUTOMOBILE LIABILITY -- OWNED, NON -OWNED or RENTED $500,000 COMBINED SINGLE LIMIT WORKERS' COMPENSATION EMPLOYERS' LIABILITY WHICH COMPLIES WITH THE TEXAS WORKER; COMPENSATION ACT AND SECTION II OF THIS EXHIBIT $100,000/ $100,000/ $100,000 C. In the event of accidents of any kind, JUNIOR LEAGUE and its Contractor shall furnish the Risk Manager with copies of all reports of such accidents within ten (10) days of the accident. II. ADDITIONAL REQUIREMENTS A. JUNIOR LEAGUE and its Contractor 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. The coverage provided must be in amounts sufficient to assure that all workers' compensation obligations incurred will be promptly met. B. JUNIOR LEAGUE's and its Contractor's financial integrity are of interest to CITY; therefore, subject to JUNIOR LEAGUE's and its Contractor's right to maintain reasonable deductibles in such amounts as are approved by CITY, JUNIOR LEAGUE and its Contractor shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at JUNIOR LEAGUE's and its Contractor's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and with an A.M. Best's rating of no less than A- (VII). C. CITY shall be entitled, upon request and without expense, to receive copies of the policies, declarations page and all endorsements thereto as they apply to the limits required by CITY, and may require the deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies). JUNIOR LEAGUE and its Contractor shall be required to comply with any such requests and shall submit a copy of the replacement certificate of insurance to CITY at the address provided below within 10 days of the requested change. JUNIOR LEAGUE and its Contractor shall pay any costs incurred resulting from said changes. All notices under this Article shall be given to CITY at the following address: City of Corpus Christi Attn: Risk Management P.O. Box 9277 Corpus Christi, TX 78469-9277 (361) 826-4555- Fax # D. JUNIOR LEAGUE and its Contractor agree that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: • Name CITY and its officers, officials, employees, volunteers, and elected representatives as additional insured by endorsement, as respects operations and activities of, or on behalf of, the named insured performed under contract with CITY, with the exception of the workers' compensation policy; • Provide for an endorsement that the "other insurance" clause shall not apply to CITY of Corpus Christi where CITY is an additional insured shown on the policy; 10 • Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of CITY; and • Provide thirty (30) calendar days advance written notice directly to CITY of any suspension, cancellation, non -renewal or material change in coverage, and not less than ten (10) calendar days advance written notice for nonpayment of premium. E. Within five (5) calendar days of a suspension, cancellation, or non -renewal of coverage, JUNIOR LEAGUE and its Contractor shall provide a replacement Certificate of Insurance and applicable endorsements to CITY. CITY shall have the option to suspend JUNIOR LEAGUE's and its Contractor's performance should there be a lapse in coverage at any time during this contract. Failure to provide and to maintain the required insurance shall constitute a material breach of this contract. F. In addition to any other remedies CITY may have upon JUNIOR LEAGUE's or its Contractor's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, CITY shall have the right to order JUNIOR LEAGUE or its Contractor to stop work hereunder, and/or withhold any payment(s) which become due to Contractor hereunder until JUNIOR LEAGUE or its Contractor demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which JUNIOR LEAGUE and its Contractor may be held responsible for payments of damages to persons or property resulting from JUNIOR LEAGUE' s or its Contractor's or its subcontractor's performance of the work covered under this agreement. H. It is agreed that JUNIOR LEAGUE's and its Contractor's insurance shall be deemed primary and non-contributory with respect to any insurance or self insurance carried by CITY for liability arising out of operations under this contract. I. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this contract. 11