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HomeMy WebLinkAbout028508 RES - 03/09/2010Page 1 of 3 RESOLUTION APPROVING THE CORPUS CHRISTI BUSINESS AND JOB DEVELOPMENT CORPORATION'S EXPENDITURE OF $1,100,000 OF THE CORPORATION'S SEAWALL FUNDS FOR THE SALT FLATS LEVEE SYSTEM — PHASE 1 PROJECT; AUTHORIZING AMENDMENT OF THE CORPORATION'S BUDGET; AND APPROVING A SEAWALL PROJECT AGREEMENT BETWEEN THE CORPORATION AND THE CITY OF CORPUS CHRISTI FOR THE SALT FLATS LEVEE SYSTEM — PHASE 1 WHEREAS, the Corpus Christi Business and Job Development Corporation ("Corporation") has available surplus seawall funds that can be used for promotion and development of improvements to the downtown seawall and for the maintenance and operating costs of the seawall improvements for the life of the seawall improvements; WHEREAS, the City of Corpus Christi ("City") submitted a proposal to the Board of Directors of the Corporation ("Type A Board") to utilize some of the surplus seawall funds of available to the Corpus Christi Business and Job Development Corporation ("Corporation") for the Salt Flats Levee System — Phase 1 Project ("Project"); WHEREAS, Type A Board determined that the City's proposed Project promotes and develops improvements to the downtown seawall and for the maintenance and operating costs of the seawall improvements for the life of the seawall improvements; and WHEREAS, City Council deems that it is the best interest of the City and citizens to approve the Seawall Project Agreement; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Council approves the Type A Board's use of $1,100,000.00 of the Corporations' available seawall funds for the City's Salt Flats Levee System — Phase 1 Project, and authorizes the conforming amendment of the Corporation's budget. SECTION 2. That the Seawall Project Agreement for the Salt Flats Levee System — Phase 1 Project between the Corporation and City, which is attached to this resolution as Exhibit A, is approved. ATTEST: Armando Chapa City Secretary Seawall -- Salt Flats -- Resolution -- 03012010 THE CITY OF CORPUS CHRISTI r�Q Joe Ada e Mayor 028508 INDEXED ° Page 2of3 APPROVED: 1st day of March, 2010. R. Jang First Assistant City A torney For City Attorney Seawall -- Salt Flats -- Resolution -- 03012010 Corpus Christi, Texas of IfriVuM , 2010 The above resolution was passed by the following vote: Joe Adame Chris N. Adler Brent Chesney Larry R. Elizondo, Sr. Kevin Kieschnick Priscilla Leal John E. Marez Nelda Martinez Mark Scott 028508 Seawall -- Salt Flats -- Resolution -- 03012010 Page 3 of 3 SEAWALL PROJECT AGREEMENT CITY OF CORPUS CHRISTI — SALT FLATS LEVEE SYSTEM -- PHASE I This Seawall Project Agreement ("Project Agreement") is entered into between the Corpus Christi Business and Job Development Corporation ("Corporation") and the City of Corpus Christi ("City"). WHEREAS, the Texas Legislature in Section 4A of Article 5190.6, Vernon's Texas Revised Civil Statutes (Development Corporation Act of 1979) empowered local communities with the ability to adopt an optional local sales and use tax as a means of improving the economic health and prosperity of their citizens; WHEREAS, on November 7, 2000, residents of the City of Corpus Christi passed Proposition 4, Seawall Improvements, which authorized the adoption of a sales and use tax for the promotion and development of improvements to the downtown Seawall and for the maintenance and operating costs of the Seawall Improvements for the life of the Seawall Improvements at the rate of one-eighth of one percent to be imposed for 25 years; WHEREAS, the 1/8 cent sales tax authorized by passage of Proposition 4 was subsequently enacted by the City's City Council ("City Council"), and filed with the State Comptroller of Texas, effective April 1, 2001, to be administered by the Corporation's Board of Directors ("Board"); WHEREAS, the City submitted a proposal to the Board to request surplus seawall funds for potential projects to protect and enhance the City's seawall and related structures; WHEREAS, the Board has determined that it is in the best interests of the residents of the City of Corpus Christi that seawall funds be awarded to the City for four projects, including the Salt Flats Levee System — Phase I ("Project"), by execution of this Project Agreement, to accomplish the Seawall Project described in this agreement and in the City's proposal; In consideration of the covenants, promises, and conditions stated in this Project Agreement, the Corporation and the City agree as follows: 1. Project Agreement to Implement Seawall Project. This Project Agreement between the Corporation and City is executed to implement the promotion and development of a Seawall Project proposed by the City. The proposal submitted by the City for "Salt Flats Levee System -- Phase I" is attached to this Project Agreement as Exhibit A, and is incorporated in this Project Agreement by reference. 2. Effective Date. The effective date of this Project Agreement is the latest date on which a party to this Project Agreement is executes the this Project Agreement ("Effective Date"). Page 1 of 8 Seawall -- Salt Flats -- Type A -City Project Agreement -- 02102010 Exhibit A 3. Services to be Provided by City. a. The City, through the City's City Manager or his designee ("City Manager"), administers the funding and performs contract administration responsibilities, as outlined in this Project Agreement, for the Corporation. b. Undertake required contracting and oversight related to levee maintenance, replacement of existing storm water outfall flap gates at seven locations, security improvements to deter theft and vandalism of aluminum stop log structures (storm gates), and the investigation and evaluation strategy for FEMA certification of the levee system. 4. Grant to be Provided by Corporation. The Corporation will grant the City $1,100,000.00 for the project. 5. Documentation and Reports. a. The City shall maintain all documentation relating to the receipt and expenditure of the funds provided under this Project Agreement for a period of three years following the expiration of this Project Agreement or for such longer period as may be required by Federal or State law. b. The City shall provide access to all records, documents, reports, and audits, regarding the funded activity under this Project Agreement, during regular business hours, for the purpose of inspection and copying by the City Manager. Furthermore, the City shall provide to the City Manager any information pertinent to this Project Agreement, as may be requested during the term of this Project Agreement. c. The City shall submit a performance report ("Quarterly Report") to the Corporation at least once each quarter, and a complete performance report ("Final Report") within 30 days of the completion of the Project. The Quarterly and Final Reports must contain all relevant details pertaining to the tasks described in Exhibit A, and include any supporting documentation required to substantiate the written narrative contained in the reports. 6. Amendments or Modifications. No amendments or modifications to this Project Agreement may be made, nor any provision waived, unless the amendment or modification is made in writing and signed by persons duly authorized to sign agreements on behalf of all parties. 7. Severability. a. If for any reason, any section, paragraph, subdivision, clause, provision, phrase or word of this Project Agreement or the application of this Project 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 Project Agreement, or the Page 2 of 8 Seawall -- Salt Flats -- Type A -City Project Agreement -- 02102010 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, for it is the definite intent of the parties to this Project Agreement that every section, paragraph, subdivision, clause, provision, phrase, and word of this Project Agreement be given full force and effect for its purpose. 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 Project Agreement, then the remainder of this Project Agreement is not affected by the law, 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 Project Agreement automatically. 8. Compliance with Laws. The City shall comply with all applicable Federal, State, and local government laws, rules, regulations, and ordinances which may be relevant to the City's performance under this Project Agreement. 9. Jurisdiction and Venue. a. This Project Agreement is governed by and must be construed under the laws of the State of Texas. b. All actions brought to enforce compliance with this Project Agreement must be brought in Nueces County, Texas, where this Project Agreement was entered into and must be performed. 10. Acknowledgment and Construction of Ambiguities. The parties expressly agree that each has independently read and does understand this Project Agreement. By the City's execution of this Project Agreement, the City agrees to be bound by the terms, covenants, and conditions contained in this Project Agreement. Any ambiguities in this Project Agreement may not be construed against the drafter. 11. Indemnity. The City must fully indemnify and hold harmless the City of Corpus Christi, the Corpus Christi Business and Job Development Corporation, and their officers, employees, and agents (hereinafter, collectively "Indemnitees") from and against any and all liability, damage, loss, claims, demands, expenses, suits, and causes of action of any nature whatsoever 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 kind whatsoever which arise out of or are in any manner connected with, or are claimed to arise out of or be in any way connected with, either proximately or remotely, wholly or in part, Page 3 of 8 Seawall -- Salt Flats -- Type A -City Project Agreement -- 02102010 any activities by the City, its officers, employees, agents, members, invitees, or independent contractors with respect to this Project Agreement or the Project that is the subject of this Project Agreement, regardless of whether such injuries, death, or damages are caused, or are claimed to be caused, by the contributory negligence of any of the Indemnitees, but not if caused by the sole negligence of the Indemnitees unmixed with the fault of any other person or entity. The City covenants and agrees that if Indemnitees, or any of them, are made a party to any litigation against the City or in any litigation commenced by any party other than the City relating to this Project Agreement or Project, the City 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 Indemnitees in all actions based thereon with legal counsel satisfactory to Indemnitees, and pay all charges of attorneys and all other costs and expenses of any kind arising from any said liability, damage, loss, demand, claim, or action. 12. Warranties. The City warrants and represents to Corporation the following: a. The City is a duly organized, validly existing, and in good standing under the laws of the State of Texas, has all authority to carry on its business as presently conducted in Corpus Christi, Texas. b. The City has the authority to enter into and perform, and will perform, the terms of this Project Agreement. c. The City has received a copy of the Texas Development Corporation Act of 1979, Art. 5190.6, Vernon's Texas Revised Civil Statutes, and acknowledges that the funds granted in this Project Agreement must be utilized solely for purposes authorized under State law and by the terms of this Project Agreement. d. If an audit determines that the funds were not used for authorized purposes, the City agrees to reimburse Corporation for the sums of money spent for purposes not authorized by law within 30 days written notice requesting reimbursement. e. The parties executing this Project Agreement on behalf of the City are duly authorized to execute this Project Agreement on behalf of the City. 13. Events of Default. The following events constitute a default of this Agreement: a. Failure of the City to timely, fully, and completely comply with any one or more of the requirements, obligations, duties, terms, conditions, or warranties of this Project Agreement. Page 4 of 8 Seawall -- Salt Flats -- Type A -City Project Agreement -- 02102010 b. The Corporation determines that any representation or warranty on behalf of the City contained in this Project Agreement or in any financial statement, certificate, report, proposal, or opinion submitted to the Corporation in connection with this Project Agreement was incorrect or misleading in any material respect when made. c. Any judgment is assessed against the City or any attachment or other levy against the property of the City with respect to a claim remains unpaid, undischarged, or not dismissed for a period of 30 days. d. The City makes an assignment for the benefit of creditors. e. The City files a petition in bankruptcy, or is adjudicated insolvent or bankrupt. f. If taxes on property owed by the City become delinquent, and the City fails to timely and properly follow the legal procedures for protest or contest. g. The City changes the general character of its business as conducted on or following the date this Agreement is approved by the Corporation. 14. Notice of Default. Should the Corporation determine that the City is in default under the terms of this Agreement, the Corporation shall notify the City in writing of the event of default and provide 60 days from the date of the notice ("Cure Period") for the City to cure the event of default. 15. Results of Uncured Default. After exhausting good faith attempts to address any default during the Cure Period, and taking into account any extenuating circumstances that might have occurred through no fault of the City, as determined by the Board of Directors of the Corporation, the following actions must be taken for any default that remains uncured after the Cure Period: a. The City shall immediately repay to Corporation, with interest at the interest rate paid by the City on its most recently issued general obligation bonds from date of expiration of Cure Period until fully paid, all funds not used under terms of this Project Agreement. b. The City shall pay Corporation reasonable attorney fees and costs of court to collect amounts due to Corporation. c. The Corporation shall have no further obligations to the City under this Project Agreement and this Project Agreement shall terminate. d. The Corporation may be held liable for any consequential damages. e. The Corporation may pursue all remedies available under law. Page 5 of 8 Seawall -- Salt Flats -- Type A -City Project Agreement -- 02102010 16. No Waiver. a. No waiver of any covenant or condition, or the breach of any covenant or condition of this Project Agreement, constitutes a waiver of any subsequent breach of the covenant or condition of the Project Agreement. b. No waiver of any covenant or condition, or the breach of any covenant or condition of this Project Agreement, justifies or authorizes the nonobservance on any other occasion of the covenant or condition or any other covenant or condition of this Project Agreement. c. Any waiver or indulgence of the City's default may not be considered an estoppel against the Corporation. d. It is expressly understood that if at any time the City is in default in any of its conditions or covenants of this Project Agreement, the failure on the part of the Corporation to promptly avail itself of the rights and remedies that the Corporation may have, will not be considered a waiver on the part of the Corporation, but Corporation may at any time avail itself of the rights or remedies or elect to terminate this Project Agreement on account of the default. 17. Notices. a. Any required written notices shall be sent, certified mail, return receipt requested, addressed as follows: If to the City: City of Corpus Christi Attn.: City Manager P.O. Box 9277 Corpus Christi, Texas 78469-9277 If to Corporation: City of Corpus Christi Business and Job Development Corporation Attn: Executive Director 1201 Leopard Street Corpus Christi, Texas 78401 b. Notice is effective upon deposit in the United States mail in the manner provided in subsection a of this section. 18. Incorporation of other documents. The Corpus Christi Business & Job Development Corporation 4A Board Affordable Housing Request for Proposals•issued April 7, 2008, is incorporated into this Project Agreement. Page 6 of 8 Seawall -- Salt Flats -- Type A -City Project Agreement -- 02102010 19. Relationship of Parties. In performing this Agreement, the Corporation and the City shall 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. 20. Nonassignment. The City may not assign, mortgage, pledge, or transfer this Project Agreement or any interest contained in this Project Agreement without the prior written consent of the other parties to this Project Agreement. 21. Non-discrimination. a. The City may not discriminate nor permit discrimination against any person or group of persons on the grounds of race, gender, disability, religion, age, or national origin in any manner prohibited by the laws of the United States or the State of Texas. b. The City Manager retains the right to take any action the United States or the State of Texas may direct to enforce this non-discrimination covenant. 22. Captions. The captions in this Project Agreement are for convenience only and are not a part of this Project Agreement. The captions do not in any way limit or amplify the terms and provisions of this Project Agreement. 23. Entire Agreement. This Project Agreement and the referenced and incorporated documents constitute the entire agreement between the Corporation, the City, and the City for the purpose stated. All other agreements, promises, representations, and understandings, oral or otherwise, with reference to the subject matter of this Project Agreement, unless contained in this Project Agreement, are expressly revoked, as the parties intended to provide for a complete understanding, within the provisions of this Project Agreement and its referenced and incorporated documents, of the terms, conditions, promises, and covenants relating to the each party's required performance under this Project Agreement. CORPUS CHRISTI BUSINESS & JOB DEVELOPMENT CORPORATION Eloy Salazar President Date Page 7 of 8 Seawall -- Salt Flats -- Type A -City Project Agreement -- 02102010 ATTEST: CITY OF CORPUS CHRISTI Armando Chapa City Secretary 'Angel R. Escobar City Manager Date: Date: APPROVED AS TO FORM: R. Jay Reining First Assistant City Attorney for the City Attorney Page 8 of 8 Seawall -- Salt Flats -- Type A -City Project Agreement -- 02102010 EXHIBIT A PROJECT 6A SALT FLATS LEEVEE SYSTEM — PHASE I SHORT TERM IMPROVEMENTS The Salt Flats Levee provides backwater protection during storms. It is located parallel to Stroman Avenue and extends from the docks along the Corpus Christi Ship Channel to just south of West Broadway which keeps flood water from backing into the downtown area from the Ship Channel during storms. The short term improvements will consist of Levee Maintenance, Replacement of existing storm water outfall flap gates at seven locations, security improvements to deter theft and vandalism of aluminum stop log structures (storm gates), and investigation and evaluation strategy for FEMA Certification. FEMA is currently updating flood maps which may require a Phase 2 Long Term Improvements once the information is available and would be proposed in the future if necessary. A-1 Seawall — Salt Flats -- Type A -City Project Agreement -- 02102010