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HomeMy WebLinkAboutC2005-155 - 4/12/2005 - ApprovedPage I of 20 O~inance Approved: STATE OF TEXAS § COUNTY OFNUECES§ CHAPTER USE AGREEMENT This Us~ Agrepment (hereinafter "Agreement") is made and entered into this [,~ 7~J day of./~,,r~,;.~ , 2005, by and between THE CITY OF CORPUS CHRISTI TEXAS ( ~City ), a Texas home-rule municipal corporation, acting by and through the City Council ("City Council"), and The Tiger Olivarez Golf and Literacy Academy, Inc. ("Chapter'), a Texas non-profit corporation, qualified as a 501 (c) (3) organization under 26 U.S.C. Section 501 (c) (3), a chapter of The First Tee, a division of Wodd Golf Foundation, Inc. ("WoRd Golf"), a Flodda nonprofit corporation. WHEREAS, City owns, and through its Parks and Recreation Department, operates two (2) golf courses in Corpus Chdsti, Texas; and WHEREAS, City has Head Golf Pros to operate and manage its golf courses; and WHEREAS, Chapter is a Texas non-profit corporation organized and operated to develop and offer to Corpus Chdsti area youth a Program for the teaching of golf and life skills in affiliation as a chapter of The First Tee, a division of Wodd Golf Foundation, Inc. ("Wodd Golf"), a Florida nonprofit corporation; and WHEREAS, Chapter desires to develop, offer and conduct its Program benefiting the Corpus Christi area youth at certain City golf courses; and WHEREAS, City desires said Programs at its golf courses provided they can be effectively and efficiently coordinated with the public use of the golf courses and with the applicable Head Golf Pros. NOW, THEREFORE, for and in consideration of the mutual undertakings herein provided, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Chapter agree as follows: I. DEFINITIONS 1.01 "City" means the City of Corpus Christi, Texas, a Texas home-rule municipal corporation. 1.02 "Designated Golf Course" means a City owned golf course selected by Chapter and approved in wdting by Director as a venue for Chapter's activities/Programs in accordance with the terms and conditions of this Agreement. 1.03 "Director" means the Director of City's Parks and Recreation Department. 2005-155 04/12/O5 0rd026207 ;.2 TtGo~Cou. s~s~)214OfDC.R naI.Cle, a n Copy Tiger O~Na rez. G~t0j[ era cy. Academy. Chapter 10yrU seK.&E~h~ ~C Tiger Olivarez Golf and Literacy Page 2 of 20 1.04 "Existing Contracts" means currently existing contracts, and extensions or amendments thereof, between City and a third party conceming a Designated Golf Course. Existing Contracts shall include, without limitation, any contract, whether pre- dating or post-dating this Agreement, between City and any third party for the management and operation of the course. 1.05 "Chapter" means The Tiger Olivarez Golf and Literacy Academy, Inc., a non- profit corporation organized under the laws of the State of Texas, qualified as a 501 (c) (3) organization under 26 U.S.C. Section 501 (c) (3), and its successors or assigns. The Tiger Olivarez Golf and Literacy Academy, Inc. ("Chapter") is a chapter of The First Tee, a division of Wodd Golf Foundation, Inc. ("Wodd Golf"), a Flodda nonprofit corporation. 1.06 "Learning Center" means a building constructed or located by Chapter at a Designated Golf Course in accordance with this Agreement for use in its Program. 1.07 "Head Golf Pro" means the City employee designated by City, from time to time, as the golf professional responsible for the operation and management of a Designated Golf Course. 1.08 "Program" means Chaptsr's Program for its registered participants at the Designated Golf Courses. II. SUBJECT OF THIS AGREEMENT AND TERM 2.01 Purpose. The purpose of this Agreement is to set forth the terms and conditions upon which the City will allow Chapter to use certain of its golf courses to conduct its Program. Chapter shall, at its sole cost and expense, plan, arrange for and conduct its activities on the Designated Golf Course in accordance with the terms provided in this Agreement. 2.02 Term. This Agreement shall be for a term of ten years, beginning with the effective date of,_~'L~l~ I~to~(~[ (As required by City Charter, the effective date is he 61 day after the adopbon by City Council on second and fina reading of the ordinance authorizing the execution of this Agreement.). Notwithstanding the foregoing sentence, Director may, at Director's option and without prejudice to any other rights City may be entitled to at law, in equity or elsewhere under this Agreement, terminate this Agreement in whole or in part, with or without cause, for the convenience of City by giving at least one hundred eighty (180) calendar days prior wdtten notice thereof to Chapter; and all uses being terminated shall cease and Chapter shall peacefully surrender the Leaming Centers and any other areas utilized by Chapter at the Designated Golf Courses to the City upon the date specified in the notice. In the event of termination for convenience by City, Chapter shall be entitled to receive as its sole and exclusive compensation for said termination an amount equal to the prorated cost of the improvements approved by City and constructed by Chapter under this Agreement. The cost of the improvements (including the Learning Center) shall be the lesser of (1) the actual out-of-pocket cost of construction or (2) the amount specified H:',L EG-DIR~Doy~eO Curfls\MYDOCS~003.04\PARK&REC 27~GolfCour.ses~021405 DC.FinaL Clean Col3y Tlger. Olivar~ C~3~1_11_ eracy. Academy C hap[er. 10yrUseK.&~.D~ Page 3 of 20 in Chapter's request to construct improvements approved by the Director. The prorated amount shall be calculated using a fraction, the numerator of which is the remaining unexpired number of years of the original term of the Agreement at the time of termination and the denominator of which is ten (10) years. 2.03 Designated Golf Courses, Chapter may, from time to time designate to City City-owned golf courses at which it wishes to offer its Program. Said designation shall identify the course(s) to be covered, an estimated timetable for beginning of Program offering, improvements, if any, Chapter anticipates making to the course, including, without limitation, construction of any Learning Center, and any other information that Director might reasonable request to enable Director to evaluate the proposal. Upon Director's written approval said requested course(s) shall be a "Designated Golf Course" for purposes of this Agreement. Chapter has requested and Director approves Gabe Lozano Sr. Golf Center as the Designated Golf Course, subject to the following requirements: Chapter shall furnish to Director the following information: (1) an estimated timetable for beginning of Program offedng; (2) improvements, if any, Chapter anticipates making to this Designated Golf Course, including, without limitation, construction of any Learning Center, and (3) any other information that Director might reasonable request. 2.04 Permitted Use. Chapter may develop, offer and conduct its Program of providing training in golf and life skills to Corpus Chdsti area youth at the Designated Golf Courses as provided by this Agreement. Chapter acknowledges that the Designated Golf Courses are dedicated public parks. Therefore, Chapter's activities on the Designated Golf Courses shall comply with all applicable laws, regulations, and policies applicable to public parks. In addition, Chapter's use of the Designated Golf Courses is non-exclusive and subject to the Existing Contracts. 2.05 Prohibited Uses. Chapter shall not use any portion of the Designated Golf Courses, or perTnit the Designated Golf Courses to be used, (a) contrary to any statute, rule, order, ordinance, requirement, regulation and course rules applicable thereto or (b) in any manner which would (i) violate any certificates of occupancy or permit affecting same, (ii) cause structural injury to then existing improvements, (iii) cause the value or usefulness of the Designated Golf Courses, or any part thereof, to diminish, (iv) constitute a public or private nuisance or waste, or (v) be immoral or obscene or a threat to the welfare of the general public. Without in any way limiting the provisions of Section 2.04, Chapter shall not use the Designated Golf Courses in any manner that would render the insurance thereon void or the insurance dsk more hazardous. III. AS IS, WHERE IS, AND WITH ALL FAULTS; DISCLAIMER AND WAIVER Chapter acknowledges and agrees that its use of the Designated Golf Courses is and shall be stdctly on an "as is, where is, with all faults" condition and basis and subject to the Existing Contracts, matters of record, all easements, rights--of-way, prescriptive rights, whether of record or not, affecting the Designated Golf Course and zoning. H/LEG-DIR\D~3y~e D C u riis\MYDOCS~003.04~PARK&REC 271Go4fCour.ses~321405OC.F~nal Clean Copy Tlger. Olivar~z_ C.-~3~_IL eracy~.cademy. C hapler. 10yrUse K.&ExhbA,DOC Page 4 of 20 Chapter acknowledges and agrees that City has not made, does not make, and specifically negates and disclaims any representations, promises, covenants, Agreements, guaranties or warranties of any kind or character whatsoever, whether express of implied, oral or written, past present or future, as to, concerning or with respect to (a) the value, nature, quality or condition of the Designated Golf Courses, (b) the benefit to be dedved from the Designated Golf Courses, (c) the suitability of the Designated Golf Courses for any and all activities and uses which Chapter may conduct thereon, (d)the compliance of the Designated Golf Courses or their operation with any laws, rules, ordinances or regulations of any applicable governmental authority or body, (e) the suitability or fitness for a particular purpose of the Designated Golf Courses, (f) the manner or quality of the construction or materials, if any, incorporated into the Designated Golf Courses, (g) the manner, quality, state of repair or lack of repair of the Designated Golf Courses, and (h) any other matter with respect to the Designated Golf Courses; and specifically, that City has not made, does not make and specifically disclaims any representations regarding compliance with any environmental protection, pollution or land use laws, rules, regulations, orders or requirements, including the existence in or on the Designated Golf Courses of hazardous materials. Chapter further acknowledges and agrees that Chapter will rely solely on its own investigation of the Designated Golf Courses and not on any information provided or to be provided by City. Chapter further acknowledges and agrees that any information provided or to be provided with respect to the Designated Golf Courses was obtained from a variety of sources and that City has not made any independent investigation or verification of that information and makes no representations as to the accuracy or completeness of that information. City is not liable for or bound in any manner by any verbal or wdtten statements, representations or information pertaining to the Designated Golf Courses, or the operation thereof, furnished by any real estate broker, agent, employee, servant or other person. The term "hazardous materials" as used in this section shall mean any hazardous materials or hazardous substances as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Texas Hazardous Substances Spill Prevention and Control Act, as amended, the Resource Conservation and Recovery Act of 1976, as amended, and regulations promulgated thereunder. IV. CHAPTER'S USE OF THE DESIGNATED GOLF COURSES 4.01 Coordination With Head Golf Pro. Upon designation by Chapter and approval by the Director of a particular City-owned golf course as the Designated Golf Course, it shall be Chapter's obligation to coordinate all aspects of its proposed Program for said Designated Golf Course with the Head Golf Pro for said course. Said coordination shall include, without limitation, scheduling of class and practice range times, number and frequency of class sessions, number of participants per class session, on site storage of equipment, if available, holding of special events, advertising, and display and dissemination of promotional materials concerning the Program, parking and secudty for the Program and fees for practice range balls/use, etc. In this regard City and Chapter acknowledge and agree to achieve the coordination and Program features described in Exhibit "A" attached hereto and incorporated herein for all purposes, with the Head Golf Pro(s). City agrees to use H:',LEG DIR\Doy~eD Curtle\MYDOCS~003.O4\PARK&REC 2;AG~KCour.ses~021405DC.FInal Clean.Cooy Tiger O~ivamz C~afl_lLeracy Academy. Chapter.10yrUseK &E~hbA.DOC Page 5 of 20 reasonable good faith efforts to encourage, support and facilitate said coordination and Program features between Chapter and the Head Golf Pro for any particular Designated Golf Coursa. Notwithstanding the foregoing, Chapter acknowledges that City will not unilaterally commit the Head Golf Pro and that Chapter bears ultimate responsibility to work out all the details with the particular Head Golf Pro in accordance with the terms of this Agreement. Before beginning its Program at any particular Designated Golf Course, Chapter shall provide the Director with wdtten confirmation from it and the Head Golf Pro that said details have been arranged to their mutual satisfaction and is consistent with the terms in Exhibit A. 4.02 Chapter's Responsibilities in the Operation of its Program at the Designated Golf Courses. Chapter shall, at its sole cost and expense: (a) Provide qualified personnel, supplies and equipments, and any expenses and necessary fees for its Program; (b) Recruit and register participants for its Program; (c) Transport or arrange for transport of the participants to and from the Designated Golf Courses; (d) Dudng scheduled Program times, adequately supervise and control its participants at the Designated Golf Course; including, without limitation, ensudng some minimum level of proficiency of participants playing the rounds of golf described in Exhibit A to avoid unreasonable delay, disruption of and interference with other players on the courses; (e) If a Leaming Center is constructed in accordance with this Agreement, operate, manage and maintain the Learning Center in good, safe, attractive and efficient conditions and in accordance with all applicable laws; (f) Provide, set up and store all required equipment for its Program (including golf balls, clubs and gloves) and maintain the same in good, safe, attractive and efficient working condition at all times; (g) Provide and maintain special facilities and accommodations for handicapped participants of its Program as required by law; (h) Fully comply with City's HUB Good Faith Effort Plan, as amended, plan in hidng and contracting with historically underutilized local businesses, certified by City, in Chapter's use and operation at the Designated Golf Courses; Page 6 of 20 (i) Promptly undertake and accomplish all maintenance and repairs necessary to prevent any deterioration or waste to any Chapter occupied areas of the Designated Golf Course including the Learning Center; (J) Make every effort to encourage, promote and ensure the participation of underprivileged youth and youth of all gender and ethnicities in the Program; (k) Pay all management, maintenance, repair, and operating expenses, and all other costs relating and attributable to any Learning Center and its Program; (i) Pay or caused to be paid when due all charges for utilities and services attributable to its use of the Learning Center at the Designated Golf Courses; - (m) Maintain or cause to be maintained all necessary licenses, permits, franchises, if any, and authorizations for its operation and Program; (n) Pay all legally due taxes and assessments, if any, attributable to its operation under this Agreement. In no event shall City be obligated to pay any tax or assessment or any portion thereof levied or created dudng the term of the Agreement, irrespective of whether the tax or assessment or any portion thereof was specifically allocated to City's interest therein. All payments by Chapter of taxes and/or assessments shall be made by Chapter on or before thirty (30) days before the last day on which the payments may be made without penalty or interest. Upon City's request, Chapter shall fumish to City receipts or other appropriate evidence establishing the payment of these amounts; (o) When applicable, promptly undertake and complete the construction of the Learning Centers at the applicable Designated Golf Courses in accordance with Article V. of this Agreement; (P) Not enter into any contracts or provide any product or service that will compete with Head Golf Pros' rights, use and privileges without the Head Golf Pros' prior wdtten consent; (q) Expressly state in any Chapter contracts involving the Designated Golf Courses that those contracts are subject to this Agreement; (r) Upon termination of the Agreement, cease its use of the Designated Golf Courses, leaving same in substantially the same and as good a condition as before the use, unless otherwise agreed in wdting by the Director. 4.03 City's Responsibilities. City is not required or obligated to make any changes, alterations, additions, improvements, or repairs in, on or about the Designated Golf Courses. Further, City is not required or obligated to negotiate with the Head Golf Pro for Chapter's activities at the Designated Golf Course. H 'J-EG-DIF~DOyleD.CuriJs\MYDOC.S~20O3 04\PARK&REC.275GoIfCour s~s\021405DC Final. Clean. Copy Tiger O~N, arez Golfl_lt.eracy. Ac. ademy. Chapter. 10~.&E.xhbA. DOC Page 7 of 20 4.04 Budgets, Financial Records and Audits. Chapter shall keep and maintain true, complete and accurate financial records pertaining to this Agreement dudng the term hereof and shall maintain the same for five years following the termination of the Agreement. City may review said financial records and back-up documentations upon request. City is hereby granted the dght to inspect and audit the records at Chapter's office during any normal business hours. In addition, Chapter shall furnish true and correct copies of any annual or quarterly financial reports (balance sheets, statements of operation, cash fiow statements, etc.) it may generate from time to time. 4.05 Acknowledgements in Printed Materials. Chapter agrees to acknowledge the City for its support in all appropriate pdnted materials. The Director reserves the dghts to review and approve, in whole or in part, the form of the acknowledgements which Chapter proposes to include in any pdnted materials. V. CHAPTER'S CONSTRUCTION OF IMPROVEMENTS AT THE DESIGNATED GOLF COURSE 5.01 Chapter's Improvements. Chapter may, from time to time, request permission to make physical improvements to the Designated Golf Course, including without limitation construction of a Learning Center, practice areas, and other facilities. Said requests shall be made in writing to the Director, with copy to the Head Golf Pro for the affected course. The request shall contain a description of the proposed improvements; their location; their estimated cost; proof of available funding; a proposed construction schedule; and designs, plans and specifications, where appropriate. Chapter will not undertake construction of any physical improvements without the prior wdtten approval of the Director. 5.02 Review of Construction Documents. All designs, plans and specifications (and amendments thereto) for the construction of any improvements by Chapter must be reviewed and approved in writing by the Director, pdor to commencement of any work. If the Director fails to approve or inform Chapter of the need for additional time for review in writing within 30-day period of his receipt, City shall be deemed to have denied the designs, plans and specifications as submitted. City's review of any designs, plans or specifications is solely for City's own purposes, and City does not make any representation or warranty concerning the appropriateness of any designs, plans or specifications for any purpose. City's approval of (or failure to approve) any designs, plans and specifications shall not render City liable for same, and Chapter assumes and shall be responsible for any and all claims arising out of or from the use of the designs, plans and specifications. Chapter shall provide at least three sets of construction documents to Director. Chapter shall also fumish City with complete as-buiit drawings within sixty (60) days after construction is complete. The as-built drawings shall be in both full size and reproducible formats. H:\L EG-DIR~Doyle D.Curfls~MYDOC~2003.04\PARK& REC.2 ~Go!fCour ses~021405DC.Final. Clean Copy Tiger OIIvare~_ G~3~_tt, eracy~,cademy Chap [er. 10yrUs~K.&ExhbA.DOC Page 8 of 20 5.03 Permits and Other Approvals. All building permits, certificates of occupancy, and other permits, licenses, permissions, consents, and approvals required to be obtained from govemment agencies or third parties in connection with construction, occupancy and uses of any improvements constructed by Chapter shall be acquired as required by applicable laws, ordinances, or regulations by and at the sole cost and expense of Chapter and Chapter shall furnish City evidence thereof. 5.04 City Required Bonds and Insurance during Construction. All construction contracts entered into between Chapter and its contractor(s) for improvements shall require performance and payment bonds and minimum insurance requirements (including all-dsk builders dsk insurance) in the form and amounts normally required by City for construction projects of similar magnitude. Each performance and payment bond shall name Chapter and City as joint obligees. The contracts shall also require the contractor(s) to name City and Chapter, their officers, agents and employees, as additional insureds and as indemnitees under the indemnification, defense and hold harmless provisions of the construction contracts, in a form substantially similar to that found in Section 7.01 Indemnification. The contractor(s) shall also be required to name City, and Chapter, their officers, agents and employees, as additional insureds on all liability insurance policies required for the new improvements. Further, all Chapter's construction contracts shall include a term stating that the contract shall be subject to this Agreement. 5.05 City's Right to Observe and Inspect During Construction. Dudng the construction, City shall have the dght (but not the obligation) to observe and inspect work performed by any contractor(s). Dudng construction, Chapter's construction manager, engineer and/or architect, if any, shall be accessible to City at all times and shall provide sufficient on-site representatives, construction administrators and/or inspectors to assure that the construction will be completed in accordance with the approved plans and specifications. 5.06 Construction Scheduling. Chapter shall provide the Director and the Head Golf Pros with advanced wdtten notification of construction scheduling and will schedule all work so as to avoid conflict with events at the Designated Golf Courses. 5.07 Site Security and Securing Construction Materials. Chapter and its contractors and subcontractors shall be solely responsible for construction site secudty and secudng construction tools, equipment, supplies and materials when left on City property. 5.08 City's Good Faith Effort Plan. Chapter, and its engineers, architects, contractors and subcontractors shall adopt good faith efforts in compliance with the City's HUB good faith effort plan in hidng and contracting with historically underutilized local businesses certified by City. 5.09 Construction Standards. Chapter shall perform the construction work contemplated by this Agreement or cause it to be performed in a good and workmanlike manner and in compliance with all applicable laws and regulations of all H:\LEG DIl~Doyle[3 Curfls\MYDOCS~003 04\PARK&REC 27~GolfCour sesV321405DC Final Clean. Copy T~ger Ofivara~.Golfl_lt.eracy. Academy. Chapter. 10yTUseK.&ExhbA.DOC Page 9 of 20 governmental authorities having jurisdiction. Chapter shall promptly correct or replace any defective work, including any portion of the construction not performed in substantial accordance with the plans and specification, without cost to City. Chapter shall also fumish to City, if applicable, copies of Certificates of Occupancy or other similar documents issued to certify completion of construction in compliance with applicable requirements. Notwithstanding the foregoing the Director may request a walk-through inspection and equipment testing to confirm substantial completion of improvements constructed by Chapter, and Chapter, its amhitect, construction manager, representatives and/or contractor(s) shall attend if requested. Chapter will promptly remedy or cause to be remedied any deficiencies identified by City's inspection and/or testing. 5.10 Mechanic's Liens. Chapter shall not permit any claim of lien made by any mechanic, materialman, laborer, or other similar liens to stand against any Designated Golf Course for work or materials furnished in connection with any construction, maintenance or repair thereof made by, or on behalf of Chapter or any contractor, agent or representative of Chapter. Chapter shall cause that claim of lien to be fully discharged no later than ten (10) days after the date of filing thereof; provided, however, that in the event Chapter, in good faith, disputes the validity or amount of that claim of lien, and if Chapter shall give to City the secudty that City may reasonably require to insure payment thereof and prevent any attempted sale, foreclosure, or forfeiture of the improvements, the Designated Golf Course or any portion thereof by reason of the nonpayment, Chapter shall not be deemed to be in breach of this section so long as Chapter is diligently pursuing a resolution of the dispute with continuity and, upon entry of final judgment resolving the dispute, if litigation or arbitration results therefrom, immediately discharges said lien claim. 5.11 Fee Simple Title to City. The parties acknowledge that fee simple title to any improvements constructed or located on a Designated Golf Course by Chapter in accordance with this Agreement shall automatically vest in City without any further action by either party hereto, free and clear of all liens and other encumbrances arising by, through or under Chapter, and Chapter agrees to take no action before, dudng or after construction that would prejudice City's ability to secure clear fee simple title to said improvements. 5.12 Fixtures, Personal Property, and Equipment. Chapter may place or install at a Learning Center the personal property, removable fixtures and equipment as Chapter shall deem desirable for its operation. Personal property, removable fixtures, and equipment used in the conduct of activities by Chapter (as distinguished from fixtures and equipment used in connection with the operation and maintenance of the building) placed by Chapter in, on or at the Leaming Center shall not become part of the real property, even if nailed, screwed, or otherwise fastened to the improvements or building, but shall retain their status as personal property ("personalty"). If requested by City, Chapter shall submit to the Director a list of its personalty for approval. Personalty may be removed by Chapter at any time, so long as Chapter is not in default under this Agreement and so long as any damage to the Learning Center occasioned by the removal is thereupon repaired. All other fixtures and improvements constructed, Page 10 of 20 located or installed upon the Learning Center shall be deemed to become part of the real property and shall become the sole and exclusive property of City, free of any and all claims of Chapter or any person or entity claiming by or through Chapter. in the event Chapter does not remove Chapter's personalty that it is permitted by this section to remove from the Leaming Center within ten (10) days following the termination of the Agreement, City may treat said personalty as abandoned and retain the same and treat it as part of the Learning Center or have it removed and stored at Chapter's expense. Chapter shall promptly reimburse City for any damage caused to the Learning Center by the removal of personalty whether removal is by Chapter or City. Any modular building placed by Chapter on a Designated Golf Course shall be considered personalty and removable by Chapter provided (i) it was designated as removable personalty when submitted to the Director for approval, (ii) the Director approved installation of said modular building and (iii) Chapter provides adequate assurance at the time of removal of restoration of the site to its condition before installation of the modular building. In no event may the cost of or relating to any modular building be included in the cost of improvements used in the calculations provided in Sections 2.02 and 8.03 of this Agreement. 5.13 Construction Warranties. Chapter shall formally assign to City all warranties and warranty obligations of the contractor(s) and equipment manufacturers for improvements; provided, however, correction of defective work as provided in this Agreement shall not by that assignment become the responsibility of City, but shall remain the responsibility of Chapter and its contractor(s). Chapter shall administer said warranties during the term of this Agreement and City shall reasonably cooperate with and facilitate Chapter's efforts in this regard. Chapter shall turn over to City copies of all building systems, training, operation and maintenance manuals for the Learning Center. 5.14 Repairs and Maintenance. At all times dudng the term of the Agreement, Chapter shall, at its sole cost and expense, keep and maintain the Leaming Center or other improvements used pdmadly by Chapter or its Program on the Designated Golf Courses, in good order and repair; and in a safe, clean, useable, sanitary and attractive condition. Chapter shall rebuild, restore and repair any damage to a Learning Center or other improvements used primarily by Chapter and/or its Program. Chapter's duty to rebuild, restore or repair shall not be conditioned upon the availability of any insurance proceeds to Chapter. VI. ADDITIONAL COVENANTS Chapter shall, at its sole cost and expense: (a) In the ordinary course of business, make prompt payments to its vendors, concessionaires, consultants, contractors and similar parties, provided that nothing herein shall prevent Chapter from contesting and litigating, in good faith, any payment alleged to be due to any of those parties; H:/LEG DIR\Doy~eD Curtfs\MYDOCS~OO3.04~PARK&REC 2T~Go~Cour.sas~O21405DC.F~nal. Clean Copy. Tiger. Olivarez_Gc~l_lteracyAcademy. Chapter.10yrUseK.&Exh~.~ Page 11 of 20 (b) Maintain itself in good standing as a Texas non-profit corporation and exempt under the Internal Revenue Code and associated regulations; and (c) Maintain itself as an authorized chapter of, and in good standing with, World Golf and comply with World Golf's requirements. VII. INDEMNIFICATION AND INSURANCE 7.01 Indemnification. Chapter agrccs to defend, indemnify and hold the City and its officers, agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by Chapter's breach of any of the terms or provisions of this Agreement or by any negligent or strictly liable act or omission of Chapter or its officers, agents, employees or contractors, in any way relating to or concerning this Agreement; except that the indemnity provided for in this paragraph shah not apply to any liability resulting from the sole negligence of the City, and in the event of joint and concurring negligence of Chapter and City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the law of the State of Texas, without waiving any governmental immunity available to City or defenses of the pert/es under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. 7.02 Insurance. Chapter shall obtain and maintain upon commencement of this Agreement. and dudng any extension pedods, commercial general liability insurance in connection with its management and operation activities of the Program with minimum combined bodily injury (including death) and property damage limits of $1,000.000 per occurrence, $1.000,000 general aggregate. City and its officers, employees and elected representatives shall be named as additional insureds. Further, Chapter shall obtain and maintain from the commencement of construction, and continuing thereafter during the term of this Agreement and any extension periods, fire and extended coverage property insurance on the Learning Center(s). Proceeds of insurance resulting from damages to, or destruction of the Leaming Center shall be used to repair or reconstruct the Learning Center as herein provided. VIII. DEFAULT AND TERMINATION 8.01 Default by Chapter. A "Chapter Default" shall mean the occurrence of one or more of the following events: H;/LEG-DIR\Doy~eD.Curtls\MYDOCS~003.04\PARK&REC 2T~GolfCour.ses~021405DC Final Claan. Copy. TIg~r Olivare~_Gc~fl_iteracy~.caderny Chap[er.10ydJseK.&ExhbA DOC Page 12 of 20 (a) Failure of Chapter to pay when due any monetary amount due to City, and the continuation of the failure without cure for a period of ten (10) days after City notifies Chapter of the failure in wdting in accordance with the notice provisions under this Agreement; (b) Failure of Chapter to maintain any of the insurance or bonds provided for herein; (c) Failure of Chapter to comply with any other matedal term, covenant, or provision of this Agreement, and the failure by Chapter to cure the failure within thirty (30) days after City notifies Chapter in wdting of the failure to comply in accordance with the notice provisions under this Agreement; and (d) A receiver or trustee is appointed to take possession of all or substantially all of the assets of Chapter; or if any action is taken or suffered by Chapter pursuant to an insolvency, bankruptcy, or reorganization act; or if Chapter makes a general assignment for the benefit of its creditors; and the appointment, action, or assignment continues for a pedod of sixty (60) days. (e) Failure of Chapter to (1) maintain its affiliation with World Golf as an authorized chapter in good standing or (2) comply with World Golf's requirements. City shall not be required to give any wdtten notice and opportunity to comply/cure as provided in this Section 8.01 if the same or a substantially similar event has occurred and been the subject of written notice twice within the previous twelve (12) month pedod. 8.02 Termination and Other Remedies by City upon a Chapter Default. Upon the occurrence of a Chapter Default, City may pursue any legal or equitable remedy or remedies, including, without limitation, specific performance, damages, and termination of this Agreement. Termination or non-termination of this Agreement upon a Chapter Default shall not prevent City from pursuing any other remedies. Upon termination by City, City may occupy the Learning Center and all other areas used by Chapter under this Agreement, and Chapter shall assign to City any of its contracts and Agreements requested by City to be so assigned. Chapter contracts and Agreements not assumed by City shall terminate immediately upon termination of this Agreement. Chapter does hereby appoint City as its agent and attomey-in-fact for purpose of effecting said assignment(s), said appointment being coupled with an interest therein. In the event Chapter fails to pay any of the expenses or amounts or perform any obligation specified in this Agreement, City may, but shall not be obligated to do so, pay that amount or perform those obligations and the amount so paid and the cost incurred in said performance shall immediately be due and payable by Chapter to City and shall thereafter bear interest at the rate specified in this Agreement. 8.03 City Default and Chapter's Remedies. A "City Default" shall mean failure to comply with any material provision of this Agreement within thirty (30) days after written Page 13 of 20 notice of said specific non-compliance and the cure action requested. Chapter's sole and exclusive remedies for a City Default shall be to either (a) sue for specific performance or (b) terminate the Agreement and receive as liquidated damages an amount equal to the prorated cost of the odginal improvements approved by City and constructed by Chapter under this Agreement. The cost of the original improvements (including the Learning Center) shall be the lesser of the actual out-of-pocket cost of construction and the amount specified in Chapter's request for improvements approved by the Director. The prorated amount shall be calculated using a fraction, the numerator of which is the remaining unexpired portion of the original term of the Agreement at the time of termination and the denominator of which is ten (10). in no event shall City ever be liable to Chapter for exemplary or punitive damages. IX. GENERAL PROVISIONS 9.01 Assignment by Chapter. Chapter shall not assign or transfer this Agreement or any interest in this Agreement or any fight herein without the prior written consent of city. 9.02 Compliance with Laws. Chapter and every officer, employee, agent, contractor and any person under Chapter's control shall abide by, conform to, and comply with all laws of the United States and the State of Texas, and all the ordinances, rules or regulations of City applicable to the design, construction, operation and maintenance of the Designated Golf Courses (including without limitation, the Clean Water Act). 9.03 Copyright Indemnification. Chapter agrees to assume full responsibility for complying with the Federal Copyright Law of 1978 (17 U.S.C. 101, et seq.) and any regulations promulgated hereunder in connection with its activities in the Designated Golf Courses under this Agreement, including but not limited to, the assumption of any and all responsibilities for paying royalties that may be due to the copyright owner, or representative of the copyright owner, for the use of copyrighted works, and Chapter agrees to indemnify, defend, and hold harmless City, its officers and employees, for any claims or damages growing out of Chapter's infringement or violation of the Federal Copyright Law and any regulations promulgated hereunder. 9.04 Nondiscrimination. Chapter agrees that no person shall be denied participation in its Program because of race, color, sex, age, sexual orientation, religion, national origin, physical handicap or disability. Chapter further agrees to comply with applicable laws, adopt good faith efforts and develop an employment Program in hiring and contracting with historically underutilized local businesses certified by City; and Chapter shall not discriminate against any applicant for employment on the basis of race, color, sex, age, sexual orientation, religion, national origin, or non-job related handicap or disability. Chapter shall also comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. §§12101- 12213, as amended. 9.05 Notices. Any notice required or desired to be given under this Agreement shall be in wdting with copies directed as indicated herein and shall be personally served or H:/LEG-DIR\Doyle D.C u~MYDOC~003.04~PA RK&REC.27~Go~Cour s~s\021405DC Flnal Clean Copy. Tlger. Olivarez-G~Lit e~acy Academy. Cha pie r. 10yrUseK &ExhbA. DOC Page 14 of 20 given by mail. Any notice given by mail shall be deemed to have been given when deposited in the U.S. mails, certified, return receipt requested, and postage prepaid, addressed to the party to be served at the last address given by that party to the other party under the provisions of this Article. Notice given by couder, fax, or other form of personal delivery shall be deemed given only upon actual receipt. Any change in address shall be promptly given in wdting to the other party pursuant to this notice provision. The initial addresses for notice are as follows: City: City of Corpus Christi Attn: Director of Parks & Recreation P. O. Box 9277 Corpus Chdsti, TX 78469-9277 (361) 880-3461 Chapter: Daniel Florcyk, Executive Director 6838 Everhart Road, Unit 1012 Corpus Chdsti, TX 78413 Telephone: 361- 563-3117 With notice copy to: Jason Luby, President 5866 S. Staples, #203 Corpus Chdsti, TX 78413 Telephone: 361- 980-1095 9.06 Place of Performance of Obligations and Venue. All obligations of City and Chapter under this Agreement are payable and performable in Nueces County, Texas, and venue for any legal actions arising out of this Agreement shall lie exclusively in Nueces County, Texas. 9.07 Applicable Laws. This Agreement is made subject to the provisions of the Charter and ordinances of City, as amended, and all applicable state and federal laws. This Agreement shall be govemed by and construed in accordance with the laws and court decisions of the State of Texas. 9.08 Relationship of the Parties. Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or joint venture by the parties hereto, it being understood and agreed that no provision contained in this Agreement nor any acts of the parties hereto shall be deemed to create any relationship other than the relationship of licensor and licensee. Page 15 of 20 No term or provision of this Agreement or act of Chapter, its architect, construction manager, contractor, subcontractors, officers, agents and employees or any person under the control of Chapter in the performance of this Agreement shall be construed as making that person the agent, servant or employee of City, or making that person eligible for the fdnge benefits, such as retirement, insurance and worker's compensation, that City provides its employees. 9.09 Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, the invalidity, illegality, or unenforceability shall not affect any other provision thereof and that portion shall be deemed severed from this Agreement and the remaining part shall remain in full force and effect and the parties shall promptly negotiate to replace invalid or unenforceable portions that are essential parts of this Agreement. 9.10 Legal Construction. This Agreement shall be faidy interpreted in accordance with its terms and without any stdct construction in favor or against either party hereto and ambiguities shall not be construed against the drafting party. All references to "Paragraphs", "Articles" or "Sections" contained in this Agreement are, unless specifically indicated otherwise, references to provisions of this Agreement. Whenever in this Agreement the singular number is used, the same shall include the plural where appropriate (and vice versa), and words of any gender shall include each other gender where appropriate. As used in this Agreement, the following words or phrases shall have the meanings indicated: (i)"or" means "and/or"; (ii)"include," "Including," and their derivatives means "including without limitation"; and (iii)"laws" means statutes, regulations, rules, judicial orders, and other legal pronouncements having the effect of law. 9.11 No Implied Waiver. The failure of any party hereto to insist at any time upon the stdct performance of any covenant or Agreement or to exercise any option, dght, power or remedy contained in this Agreement shall not be construed as a waiver or relinquishment thereof for the future. The waiver of redress for any violation of any term, covenant, Agreement or condition contained in this Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. No express waiver shall affect any condition other than the one specified in such waiver and only for the time and in the manner specifically stated. 9.12 Cumulative Remedies. Each right, power, and remedy of City provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative of, concurrent with and in addition to every other dght, power, or remedy provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise. The exercise or beginning of the exercise by City of any one or more of the dghts, powers, or remedies provided for in this Agreement or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by City of any or all of those other rights, powers, or remedies. H ~LEG-DIR~Doy~eD Curfls\MYDOCS~2003.04\PARK&REC 27~GoffCour ses~)21405OC Final Clean Copy. Tlger. Olivarez Goffl_lLeracy Academy Chapter 10yrUseK.&Exht~A DOC Page 16 of 20 9.13 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an odginal and constitute one and the same instrument. 9.14 Captions. Captions and headings of the paragraphs or sections of this Agreement are for convenience and reference only and shall not affect, modify or amplify the provisions of this Agreement, and shall not be employed to interpret or aid in the construction of this Agreement. 9.15 No Third Party Beneficiaries. The provisions of this Agreement are solely for the benefit of Chapter and City, and not intended to create or grant any dghts, contractual or otherwise, to any employee of either party or to any other person or entity; and that employee, other person or entity shall not have any dght of enforcement of this Agreement or any provision contained herein, that dght of enforcement being exclusively reserved to Chapter and City as the sole parties to, and sole beneficiaries of, this Agreement. 9.16 Late Charge and Interest. In the event Chapter fails to make any payment to City due under this Agreement upon the date due, City shall be entitled to collect from Chapter a late charge for each delinquent payment as required by the City Code, as amended. In the event City pays any sum or incurs any expense that Chapter is obligated to pay under this Agreement, or that is made on behalf of Chapter, City shall be entitled to receive reimbursement thereof from Chapter upon demand, together with interest thereon from the date of expenditure at the lesser of eighteen percent (18%) per annum or the maximum rate allowed by applicable law to be charged by City or Chapter. Notwithstanding the foregoing provisions, any interest provided herein shall not exceed the maximum amount of nonusudous interest that may be contracted for, taken, reserved, charged, or received under law. Any interest in excess of the maximum amount shall be credited to the amounts otherwise owed under this Agreement, or if none is owed, refunded. This provision oven-ides any conflicting provision in this Agreement. 9.17 Time of Essence. Time is expressly declared to be of the essence of this Agreement and each and every covenant hereunder. 9.18 Entire Agreement. This Agreement embodies the complete Agreement of the parties hereto, superseding all oral or wdtten previous and contemporary Agreements between the parties and relating to matters in this Agreement, and except as otherwise provided herein cannot be modified without wdtten Agreement of the parties to be attached to and made a part of this Agreement. [SIGNATURES ARE ON THE FOLLOWING PAGE] H:/LEG-DII~DoyleD.Cur'ds~,MYDOCS~003.04~PARK&REC 27~GolfC~ur.ses\021405DC Rnal Clean. Copy TIge~ O~tvare~Gelfl. tLeracy. Academy. Chapler 10ycUseK,&ExhbA.DOC Page 17 of 20 EXECUTED IN~DUP, IrlCATE, each of which will be considered an original, on this the,~.,~_ day of f-'~ ~'~ [ ,2005, by City, signing by and through its City Manager duly adthodzed to execute ,s~me by Ordinance No.~,~.~, adopted by the City Council on the I ~ day of ~J~l' I , 2005, and by Chapter, acting through its duly authorized officials. As requir~harter, the effective date (..-q-~ ~ (~ ~ ~1~(~0__~ ) is the 61s~ day after the adoption by City Council on second and final reading of the ordinance authorizing the execution of this Agreement. D AS TO LEGAL FORM 4-4' February 2005. Doyle D. Curtis Chief, Administrative Law Section Senior Assistant City Attomey For City Attorney STATE OF TEXAS § This instrument was acknowledged before me on the y of 2005, by George K. Nee, as City Manager, or City Manager's designee, as Assistant City Manager, of the City of Corpus Christi, Texas, a Texas home-rule municipal corporation, on behaff of said corporation. Notary Pub~, State of Te~s _ Pdnted Name My Commission Expires: H:\LEG DIR~DoyleD.Cudds~YDOC.S~003.04~PARK&REC.2T~Go~Cour.seS~021405DC.Final Cle~n.C~py'flgef O~Narez.~,e~y.A~d~y. Chap~r 10yTUseK.&~.DOC Page 18 of 20 CHAPTER: THE TIGER OLIVAREZ GOLF AND LITERACY ACADEMY, INC., a Texas non-profit corporation, qualified as a 501~_p~ganizat~..~er 26 U.$~S)ection 501 (c)(3) Pdnted Name: Title: President STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on ~_~.~ g.G' ,2005, by --}~l.~ u~. '~t~d_, '~- , President'~f THE TIGER OLIVAREZ GOLF AND LITERACY-ACADEMY, INC., a Texas non-profit corporation, on behalf of said corporation. Notary Public, State of Texas My Commission Expires: ~ '~U~ Pdnted Name H/LEG DIR\D,3yleD Cur~s\MYDC~S~2003.04~PARK&REC.27',Go~ur.ses~)214OSDC.F]nal Clean Copy.~ger. Olivare~_Go~_iteracy. Acaderny Chap[er.10yrUseK.&E~ht~A.DOC Page 19 of 20 EXHIBIT "A" COORDINATION AND PROGRAM FEATURES Chapter's programs at a Designated Golf Course will be coordinated through the Head Golf Pro. Coordination and program features will include the following: 1. Chapter shall have a minimum of 250 hours of instructional time per year at the Designated Golf Course, excluding the regulation 18 hole course. Clinics and classes will be scheduled by Chapter's director of programming directly with the Head Golf Pro. In order to ensure the minimum 250 instructional hours per year, Chapter shall submit its program schedule request by January 1 of each year for approval by the Head Golf Pro. The ratio of instructors (including staff and volunteers) to participants shall be a minimum of one instructor for every ten youth participants (1:10), unless specifically approved by the Head Golf Pro. Chapter director of programming and/or the Chapter's designated staff and volunteers will provide golf and life skills instruction to participants; and the instructors may include those from the Designated Golf Course, other area courses and the South Texas PGA. Ddving range use fees for Chapter participants shall be offered at an appropriate discounted price as agreed by Director. Chapter participants will be provided a Chapter card to enable them to enjoy the privilege of discounted play at the Designated Golf Course subject to certain policies and restrictions as follows: a. Chapter will provide participants with appropriate training and orientation with respect to course rules and golf etiquette pdor to course play. It is requested to call in advance to confirm course availability. All play is subject to toumaments and other events that may be scheduled from time to time at a particular course. All times that Chapter will be using the course, ddving range or clubhouse facilities shall be coordinated in advance with the Head Golf Pro. City will provide up to sixteen (16) certification rounds of golf at no cost for each qualified Chapter youth participant wishing to obtain certification under Chapter's curriculum. Dudng certification rounds, Chapter will provide one (1)adult volunteer per four (4) youths. Volunteers will be non-playing, and no fees will be assessed dudng the certification rounds. d. For all other rounds not in conjunction with either instructional or certification rounds, (1) junior fees shall be charged and (2) except for Chapter participants H:/LEG OIR\DoyleD.Cur~s~4YDO~S~2(]03.04~PARK&REC.27~Go4fCour ses~214~5D~Fi~a~C~an~py~T~ger~ivam~G~-~Leracy~Academy~hap[~r~1~y]~UseK~&ExhbA DOC Page 20 of 20 certified at the Champion, Eagle, Birdie, or Par level, one adult companion per one to four youths is required while playing on the course.. Adult companions pay the late twilight green fee at the time of play. June through August, Monday - Thursday, 11 am - 3 pm, green fees are waived for junior participants, and the adult companions pay the late twilight green fee at the time of play. All play is subject to all course rules and good golf etiquette. Director or the Head Golf Pro may revoke and/or modify said playing privileges for any participant at any time for just cause. These rounds of golf for Chapter participants are not transferable to any other golfer. Neither Chapter nor its participants shall have any property dght in or to said rounds of golf. As requested by the Head Golf Pro, the Chapter director of programming will provide the Head Golf Pro a roster of all Chapter participants and keep that roster continuously updated.