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HomeMy WebLinkAboutC2008-372 - 10/14/2008 - Approved1 CONSTRUCTION AND LEASE AGREEMENT WITH THE MIRACLE LEAGUE OF CORPUS CHRISTI, INC. THE STATE OF TEXAS § COUNTY OF NUECES § WHEREAS the Miracle League of Corpus Christi, Inc. desires to use certain areas of City Property located at 1354 Airport Road, Corpus Christi, Texas 78405, to construct and donate to the City an athletic field of approximately 1.25 acres with concession stand and fencing, (Improvements") as described on attached Exhibit; WHEREAS, the City desires to grant Miracle League permission to lease the Premises described herein to construct the Improvements, and then lease to Miracle League the fields in consideration of the terms and conditions and mutual promises set out below. NOW, THEREFORE, the City and Miracle League agree as follows`. ., Section 1. Premises. This agreement covers property located at 1354 Airport Road and described on the attached and incorporated Exhibit. Section 2. Definitions. Whenever used in this Lease, the following terms shall have the meanings ascribed to them as set forth in this paragraph, to wit: A B. C. D. E. Lessee or Miracle League shall mean The Miracle League of Corpus Christi, Inc. a nonprofit Texas corporation, City shall mean the City of Corpus Christi, a Texas home-rule municipal corporation. City Council shall mean the City Council of the City of Corpus Christi::. , , City Manager shall mean the City Manager of the City, or his designee. Parks Director shall mean the City of Corpus Christi Director of Parks and Recreation. F. City Property or Premises shall mean a tract or parcel of land at Airport Road designated as shown on the attached Exhibit, together with all Improvements. G. Effective Date shall mean the 6151 date after City Council approval of this agreement. _ •• 2008-372 10/14/08 Ord. 027889 Miracle League of CC z This agreement shall commence on the Effective Date and continues for twenty (20) years, unless earlier terminated as herein provided. Section 4. Use of Citv's Propertv for Construction of Improvements A. Lessee desires to constructor oversee construction of certain Improvements which are described on the attached Exhibit. In consideration of the construction of Improvements and donation to City, City grants to Lessee during the term of this Agreement the use of certain areas of City property as indicated on Lessee's plans for construction of the Improvements ("City Property"). Lessee shall review the construction invoices and shall make payment if the work has been satisfactorily completed. B. When constructing the Improvements, the plans and specifications shall be prepared by state-licensed architects or engineers. The plans and specifications are subject to approval of the City Manager. Construction shall not begin until the City Director of Engineering has reviewed and approved the construction plans and specifications. Lessee agrees to maintain City Property in a sanitary, safe and clean condition during Lessee's use of the City Property. C. Lessee shall require the contractors who are awarded contracts for construction of the Improvements to furnish the following bonds by surety companies authorized to do business in Texas: Payment Bond - A payment bond in the amount of One Hundred Percent (100%) of the contract for construction of the Improvements shall be furnished for the protection of all persons, firms and corporations who may furnish materials or perform labor. The payment bond shall be made with City and Lessee as an Obligee. 2. Performance Bond - A performance bond in the amount of One Hundrec Percent (100%) of the contract for construction of the Improvements shall be furnished covering the faithful performance of the contract. The performance bond shall be made with City as an Obligee. D. Lessee shall include in all construction agreements with Lessee's construction company ("Contractor') for the Improvements, the following provisions: Contractor does hereby agree 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, 3 employees, subcontractors, invitees or any other person, arising out of or in connection with the performance of this agreement, and Contractor shall at his or her own cost and expense defend and protect the City of Corpus Christi from any and all such claims and demands. 2. Contractor does hereby agree to waive all claims, release, indemnify, defend and hold harmless the City of Corpus Christi and all of its officials, officers, agents and employees from and against any and all claims, losses, damages, suits, demands or causes of action, and liability of every kind including all expenses of litigation and/or settlement, court costs and attorney fees for injury or death of any person or for loss of, damages to, or loss of use of any property, rising out of or in connection with the performance of this agreement. Such indemnity shall apply whether the claims, losses, damages, suits, demands or causes of action arise in whole or in part from the negligence of the City of Corpus Christi, its officers, officials, agents or employees. It is the express intention of the parties hereto that the indemnity provided for in this paragraph is indemnity by Contractor to indemnify and protect the City of Corpus Christi from the consequences of the City of Corpus Christi's own negligence, where that negligence is a sole or concurring cause of the injury, death or damage. 3. In any and all claims against any party indemnified hereunder by any employee of Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be 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. E. Lessee shall also require the Contractors, in all Lessee construction agreements for the Improvements to furnish insurance in such amounts as specified below and include in all construction agreements for the Improvements the following language: Prior to commencement of any activity on City of Corpus Christi's property, Contractor shall purchase and maintain during the term of this contract, at its own expense, hereinafter stipulated minimum insurance with companies duly authorized to do business in the State of Texas. Contractor shall not allow any subcontractor to commence work until all similar insurance of the subcontractor has been obtained. All insurance policies provided under this Agreement shall be written on an "occurrence" basis. Workers' Comaensation as required by law. Employer's Liabilitv Insurance of not less than $500,000.00 for each accident, $500,000.00 disease for each employee, $500,000.00 disease as policy limit. 4 Commercial General Liabilitv Insurance, including Independent Contractor's Liabilitv. Products/Completed Operations and Contractual Liability, covering, but not limited to the indemnification provisions of this contract, fully insuring Contractor's liability for injury to or death of employees of the City of Corpus Christi and third parties, extended to include personal injury liability coverage, and for damage to property of third parties, with a combined bodily injury and property damage minimum limit of $1,000,000 per occurrence. Comprehensive Automobile and Truck Liabilitv Insurance, covering owned, hired and non-owned vehicles, with a combined single limit of $1,000,000 per occurrence. Builder's Risk. The Contractor shall purchase an All Risk builder's risk policy in the amount of the construction cost of the concession stand and fencing for the duration of this project. 2. It is agreed by all parties to this Agreement that the insurance required under this Agreement shall: a. Be written with the City of Corpus Christi and Lessee as additional insured on applicable policies and that the policy phrase "other insurance" shall not apply to the City of Corpus Christi where the City of Corpus Christi is an additional insured shown on the policy. b. Provide for thirty (30) days written notice of cancellation to the City of Corpus Christi, material change or any other cause. c. Be written through companies duly authorized to transact that class of insurance in the State of Texas. d. Waive subrogation rights for loss or damage so that insurers have no right to recovery or subrogation against the City of Corpus Christi, it being the intention that the required insurance policies shall protect all parties to the Agreement and be primary coverage for all losses covered by the policies. e. Provide a Certificate of Insurance evidencing the required coverages to: City Manager City of Corpus Christi Post Office Box 9277 Corpus Christi, Texas 78469-9277 Risk and Safety Manager City of Corpus Christi Post Office Box 9277 Corpus Christi, Texas 78469-9277 F. Lessee agrees that all work to be performed by it or its contractors, including all workmanship and materials, shall be of first-class quality and shall be performed in full compliance and in accordance with all federal, state and local laws, ordinances, codes and regulations, and such work shall be subject to City inspection during the performance thereof and after it is completed. However, the City shall have no duty to inspect. 5 G. Lessee shall discharge all obligations to contractors, subcontractors, materialmen, workmen and/or other persons for all work performed and for materials furnished for or on account of Lessee as such obligations mature. Lessee expressly agrees that it will neither give nor grant, nor purport to give or grant any mechanic's or materialmen's lien upon the CITY's property or upon any Improvements thereupon in the process of construction or repair, nor allow any condition to exist or situation to develop whereby any party should be entitled, as a matter of law, to a mechanic's or materialmen's lien against the City's property or Improvements thereon, and Lessee shall discharge any such lien within thirty (30) days after notice of filing thereof. H. All plans and specifications referred to above and all construction upon the City's property shall comply with all applicable federal, state or municipal laws, ordinances, rules, regulations and requirements. During the progress of all work, City's duly authorized representative may enter upon the premises and make such inspections as may be reasonably necessary for the purpose of satisfying City that the work or construction meets the requirements or standards. I. Lessee shall conduct its operations under this Agreement in an orderly and proper manner, considering the nature of such operation, so as not to unreasonably annoy, disturb, or endanger others. J. Before any work on City property begins, Lessee shall present the City Director of Engineering, the City Risk Manager or designee, and the City Manager with evidence of Contractor's insurance coverages, and City building and construction permits. K. Lessee shall have the right to obtain ingress and egress to and from the area designated for construction of the Improvements by means of all existing roadways or accessways, to be used in common with others having rights of passage. M. MATERIAL AND WORKMANSHIP: 6 (a) Lessee agrees that all equipment, material, and articles into the work covered by this contract shall be new and of the most suitable grade for the purpose intended, unless otherwise specifically provided in this contract. References in the specifications to equipment, material, articles, or patented processes by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. Lessee may, at its option, use any equipment, material, article, or process that, in the judgment of the City Director of Parks and Recreation, is equal to that named in the specifications, unless otherwise specifically provided in this contract. (b) Lessee shall obtain City Director of Parks and Recreation ("City Representative") approval of the machinery and mechanical and other equipment to be incorporated into the work. When requesting approval, the Contractor shall furnish to the City Representative the name of the manufacturer, the model number, and other information concerning the performance, capacity, nature, and rating of the machinery and mechanical and other equipment. When required by this contract or by the City Representative, the Lessee shall also obtain the City Representative's approval of the material or articles which the Lessee or its Contractor contemplates incorporating into the work. When requesting approval, the Lessee shall provide full information concerning the material or articles. When directed to do so, the Lessee shall submit samples for approval at the Lessee's expense, with all shipping charges prepaid. Machinery, equipment, material, and articles that do not have the required approval shall be installed or used at the risk of subsequent rejection. (c) All work under this contract shall be performed in a skillful and workmanlike manner. The City Representative may require, in writing, that the Lessee remove from the work any employee the City Representative deems incompetent, careless, or otherwise objectionable. A one year warranty on workmanship is required. N. Date for construction completion. If initial construction for its intended use as a Miracle Field is not completed within 24 months from the Effective Date of this Agreement, then the Lessee shall be considered to be in breach of this Agreement, and the City may terminate this Agreement upon notice to Lessee, without penalty to City, and City may additionally pursue all remedies under law. However, in-kind work will not be subject to penalty or constraint of days to complete. O. Cost of construction of the Improvements. The complete cost of developing all necessary plans and specifications and the cost of construction of the Improvements by LESSEE shall be borne solely by LESSEE and be at no expense to City whatsoever. Section 5. Ownership of Improvements After Completion of Construction. Upon completion of the Improvements, LESSEE donates the Improvements to City. The Improvements are considered completed when accepted in writing by the City Parks and Recreation Director. Any warranties given to the LESSEE regarding the Improvements shall be transferred and assigned to City at the same time as the Improvements are transferred to the City. Section 6. Purpose of Lease of Improvements after Completion of Construction Upon completion of the construction after Notice to Proceed from the Parks Director, the City shall lease the Premises to Lessee ("Leased Premises")for the remainder of the Term section described above, for Lessee to provide sports programs for the citizens of Corpus Christi. Lessee may not use the Leased Premises for any other purpose without the prior written approval of the Parks Director. The Lessee's use of the Leased Premises is subject to the terms and conditions of this Agreement, including attached Exhibits. Section 7. Damasle or Destruction In the event of damage or destruction to the Improvements or Leased Premises, City shall have no obligation to repair or rebuild the Improvements or Leased Premises or any fixtures, equipment or other personal property installed by Lessee. However, if said damage or destruction occurs prior to completion of the construction of the Improvements, any insurance proceeds from any casualty loss shall be applied to the repair or rebuilding of the Improvements, which will be the extent of Lessee's obligation for repair. If such damage or destruction renders the Improvements unusable or unsafe as determined by the City Manager in his sole discretion, then upon City Manager's written notice to Lessee, this Agreement terminates immediately without penalty to the City. Any damage caused by City will be reviewed by the City Risk Management office. Section 8. Termination. In addition to provisions set forth elsewhere in this Agreement, the Agreement may be terminated as follows: (A) If there is nonwmpliance with one or more of the provisions contained herein, the Parks Director may give Lessee written notice to cure or begin curing the default(s) within thirty (30) days of receipt of the notice. If Lessee is not in compliance or in substantial compliance with each provision identified by the Parks Director within thirty (30) days ofreceiving said notice, or if such noncompliance reasonably requires additional time if Lessee is not proceeding diligently with curing the default(s), the City Manager may terminate this Lease for cause without penalty by providing written notice of termination and listing one or more areas of continued noncompliance. Section 9. Surrender. Upon termination of this Agreement, Lessee shall return the Premises to City in as good condition as received, reasonable use and wear, acts of God, fire and flood damage or destruction where Lessee is without fault. Section 10. Maintenance of Leased Premises. While construction is ongoing, City shall mow the Premises. After completion of construction as described above, Lessee must maintain the Premises and Leased Premises including the mowing and collecting litter as directed in writing by the Parks Director. Section 11. Bvlaws & Officer Contact List. 8 Attached as Exhibit is a certified copy of Lessee's Bylaws, Schedule of activities, Hours and Terms of Operation, Membership and User Fees. Lessee agrees to annually submit its list of Officers and Board of Directors to the Parks Director, including name, title, address and phone number. Section 12. Responsibility for activities on Premises and Leased Premises. A. Lessee and its members are solely and exclusively responsible for all activities on the Premises and Leased Premises and have control of the Premises. The City has no responsibility for safety or any activity on the Premises. Lessee is solely responsible for safety of all activities on the Premises. B. Maintenance. Lessee must maintain the Premises. If Lessee fails to maintain the Premises, or fails to perform repairs in a timely manner, City may do so and bill Lessee. Lessee must pay City within 30 days of invoice. Maintenance includes at a minimum: (1) Lessee shall pick up and properly dispose of litter on daily basis whenever the Premises are being used and weekly during rest of the year. (2) Lessee shall keep the Premises (including any buildings, temporary or permanent) operational and in good repair, including but not limited to maintaining the infield, and cleaning and maintaining interior of building. (3) Lessee shall keep bleachers safe and in good repair. Lessee must repair the bleachers within 72 hours after need for repair is or should have been discovered. (4) Lessee must immediately report any vandalism to the Parks Director or designee and Corpus Christi Police Department. (5) Lessee must keep any parking areas and access road within the Premises free of debris, properly designated and ensure that parking is confined to designated areas. (6) Lessee must maintain the Premises. Lessee shall maintain the grass at safe height not to exceed six (6) inches. Lessee will water the Premises, in compliance with any City designated drought plan. C. Registration. Lessee will promote its programs so that the public is aware of the Lessee's activities. Lessee will conduct all registrations, take all fees, schedule all games, including makeup games and playoff games, and provide trophies for teams in each league. 9 D. Utilities. Lessee must install and pay for its own utility meters and Lessee must have all utility service providers bill Lessee for all utilities, including but not limited to telephone, electricity, water, wastewater, gas, solid waste. F. Field Playability. The City reserves the right to cancel play at the Leased Premises when field conditions, as determined by Parks Director or designee, may cause player injury or damages to Leased Premises. Section 13. Alterations. Lessee may not make any alterations, additions or improvements, to, in or about the Leased Premises without prior written consent of the Parks Director. All approved alterations, improvements, and additions made by Lessee upon the Leased Premises, although at Lessee's expense, shall become the property of the City in fee simple without any other action or process of law at the end of this Agreement. Section 14. Tax. Lessee shall be responsible for any taxes, special assessments, or levies, if any, assessed during the term against or relating to the Improvements, including ad valorem taxes pursuant to the Texas Property Tax Code, throughout term of this Agreement. Lessee must provide proof of payment upon request of Parks Director. Lessee shall establish and maintain its non-profit status for tax exemption purposes. Section 15. Assignment and Subleasing. Lessee must not assign, encumber or sublease this Agreement, without prior written consent of the City Manager. Any attempted assignment or sublet without prior written consent renders this Lease void. Section 16. Payment for Utilities. Lessee must pay for all utilities used by it or for any activity sponsored by Lessee on the Premises on or prior to the due date for payment. Failure to pay any utility bill on or prior to the due date is grounds for termination of this Lease. Section 17. Signs. (A) Lessee must not exhibit, inscribe, paint, erect, or affix any signs, advertisements, notices, or other lettering (Signs) on the Premises or on any Improvements without the Director's prior written approval. (B) If Signs are approved, the Director, in writing, may require Lessee to remove, repair, or repaint any Signs. If the Signs are not removed, repaired, or repainted within ten (10) days of the Director's written demand, 10 the City may do or cause the work to be done, and Lessee must pay the City's costs within thirty (30) days of receipt of Director's invoice. Failure to pay the City's costs within thirty (30) days of receipt of the invoice constitutes grounds for termination of this Lease. Section 18. Advertising. The Director has the right to prohibit any advertising by Lessee which impairs the reputation of the Premises or the City. Section 19. Security. Lessee shall contract and pay for any and all security it requires at the Premises during the term of this Lease. Section 20. Inspection. The City Manager and the Director, or their respective designee, has the right to inspect the Premises and/or the Improvements at any time during the term of this Lease. If an inspection reveals that maintenance is not being properly carried out, the Director, or his designee, may provide written notice to Lessee demanding compliance. If Lessee has not complied within five (5) days after receipt of the demand, the City may undertake the work and Lessee shall pay the City's cost plus ten percent (10%) overhead within thirty (30) days of receipt of the Director's invoice. Failure to pay the City's invoice for maintenance within thirty (30) days of receipt of the invoice constitutes grounds for termination of this Lease. Alternatively, the City may elect to terminate this Lease after ten (10) days written notice to Lessee. Section 21. Non-Discrimination. Lessee shall not discriminate nor permit discrimination against any person or group of persons, as to employment and in the provision of services, activities, and programs, on the grounds of race, religion, national origin, sex, physical or mental disability, or age, or in any manner prohibited by the laws of the United States or the State of Texas. The City Manager, or his designee, retains the right to take such action as the United States may direct to enforce this non- discrimination covenant. Section 22. Compliance with Laws. (A) Lessee must comply with all Federal, State, and local government laws, rules, regulations, and ordinances, which may be applicable to its operation at the Premises and its performance under this Lease. This Lease is also subject to applicable provisions of the City Charter. (B) All actions brought to enforce compliance with any law or to enforce any provision of this Lease will be brought in Nueces County where this Lease was executed and will be performed. Section 23. Costs. Noncompliance with the terms herein may result in termination of this Lease and repossession of the Premises and its Improvements by the City or its agents. If the City undertakes legal action to enforce compliance or collect damages resulting from noncompliance, Lessee must pay all of the City's court costs and ex- penses, including reasonable attorneys' fees. 11 Section 24. Indemnity. Lessee covenants to fully indemnify, save, and hold harmless the City, its ofhcers, employees, representatives, and agents (collectively, Indemnitees) from and against all claims, demands, actions, damages, losses, costs, liabilities, expenses, and judgments asserted against or recovered from City on account of injury or damage to person including, without limitation on the foregoing, premises defects, workers compensation and death claims), or property loss or damage of any kind whatsoever, to the extent any damage or injury maybe incident to, arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly or in part, (1) the existence, use, operation, maintenance, alteration, or repair of Premises and the Lessee's program; (2) the exercise of rights under this Lease; (3) an act or omission, negligence, or misconduct on the part of other persons having involvement in, participation with, or business with the Premises, Lessee, or the Lessee's program whether authorized with the express or implied invitation or permission of Lessee (collectively, Lessee's Invitees) entering upon the Premises or its Improvements pursuant to this Lease, or trespassers entering upon the Premises or its Improvements during Lessee's use or physical occupation of the Premises; or (4) due to any of the hazards associated with sporting events, training, or practice as a spectator or participant and including any injury or damage in any other way and including all expenses arising from litigation, court costs, and attorneys fees, which arise, or are claimed to arise from, out of, or in connection with the asserted or recovered incident. Lessee covenants and agrees that if City is made a party to any litigation against Lessee or in any litigation commenced by any party, other than Lessee relating to this Lease, Lessee shall, upon receipt of reasonable notice regarding commencement of litigation, at its own expense, investigate all claims and demands, 12 attend fo their settlement or other disposition, defend City in all actions based thereon with 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. Section 25. Insurance. (A) Lessee must secure and maintain at Lessee's expense, during the term of this Lease, a Commercial General Liability insurance policy with the limits and requirements shown on Exhibit B, which is attached hereto and incorporated herein by reference. Failure to maintain such insurance at the limits and requirements shown on Exhibit B constitutes grounds for termination of this Lease. (B) Lessee must provide proof, by Certificate of Insurance meeting the limits and requirements set out m Exhibit B", to the Director and Risk Management or designee prior to commencing use of the Premises under this Lease. (C) Lessee must provide the Director and Risk Management thirty (30) days written notice of cancellation, intent not to renew, or material change of any insurance coverages required herein. (D) Lessee shall, during the term of this Lease, provide copies of all insurance policies to the City Manager or the Director upon written request. (E) Lessee shall, prior to any addition or alteration to the Premises or to the Improvements, obtain clearance, in writing, from Risk Management, Section 26. Furniture, Fixtures and Equipment. City has no responsibility to furnish any equipment or furnishings for Lessee. Parks Director retains right to approve all furnishings, and fixtures that may be installed in the Premises, prior to installation. At end of the Agreement, any property remaining on the Premises shall revert to the City for the City's use or disposal. Section 27. Director's Right to Access Premises. Lessee shall provide Parks Director with keys to the Premises and a can-ent contact list in event of emergency. Parks Director and designee have right to enter the Premises during regular hours of operation or at anytime in an emergency. Section 28. Insurance. A. Lessee shall carry with an insurance company or companies satisfactory to the City Manager the insurance listed on the attached Exhibit. 13 Section 29. Appropriations. Lessee recognizes that the continuation of any expenditure by the City, after the close of any fiscal year of the City, shall be subject to appropriations and budget approval providing for such expense as an expenditure in said budget. The City does not represent that said budget item will be actually adopted, said determination being within the sole discretion of the City Council at the time of adoption of such budget. Section 30. Warranty of Title. City does not warrant its title to the Premises. This agreement and the rights and privileges granted Lessee in and to the Premises are subject to all covenants, conditions, restrictions, and exceptions of record or apparent. Nothing contained in this Agreement may be construed to imply the conveyance to Lessee of rights in the Premises that exceed those owned by City. Section 31. Notices. All notices, demands, requests, or replies provided for or permitted, under this Lease, by either party must be in writing and must be delivered by one of the following methods: (1) by personal delivery; (2) by deposit with the United States Postal Service as certified or registered mail, return receipt requested, postage prepaid; (3) by prepaid telegram; or, (4) by deposit with an overnight express delivery service, for which service has been prepaid. Notice deposited with the United States Postal Service in the manner described above will be deemed effective two (2) business days after deposit with the United States Postal Service. Notice by telegram or ovemight express delivery service will be deemed effective one (1) business day after transmission to the telegraph company or overnight express carrier. All such communications must only be made to the following: IF TO CITY: IF TO LESSEE: City of Corpus Christi Attn: Director of Park & Recreation P. O. Box 9277 Corpus Christi, TX 78469-9277 (361)880-3461 Miracle League of Corpus Christi, Inc. Attn: President P. O. Box 531 Corpus Christi, TX 78403 Either party may change the address to which notice is sent by using a method set out above. Lessee will notify the City of an address change within thirty (30) days after the address is changed. Section 32. Reportinsa. Lessee shall submit reports listing the number of youth and teams registered by Lessee to play organized sports each year during the term of this Lease. The reports must be submitted to the Director by August 31S` of each lease year. Section 33. Amendments. No alterations, changes, or modifications of the terms of this Lease nor the waiver of any provision will be valid unless made in writing and signed by a person authorized to sign agreements on behalf of each party. The City Manager is authorized to execute amendments which do not change the essential purpose of this Agreement. Section 34. Waiver. 14 (A) The failure of either party to complain of any act or omission on the part of the other party, no matter how long the same may continue, will not be deemed a waiver by said party of any of its rights hereunder. (B) No waiver of any covenant or condition or of the breach of any covenant or condition of this Lease by either party at any time, express or implied, shall be taken to constitute a waiver of any subsequent breach of the covenant or condition nor shall justify or authorize the nonobservance on any other occasion of the same or any other covenant or condition hereof. (C) If any action by the Lessee requires the consent or approval of the City on one occasion, any consent or approval given on said occasion will not be deemed a consent or approval of the same or any other action at any other occasion. (D) Any waiver or indulgence of Lessee's default of any provision of this Lease shall not be considered an estoppel against the City. It is expressly under- stood that, if at any time Lessee is in default in any of its conditions or covenants hereunder, the failure on the part of City to promptly avail itself of said rights and remedies which the City may have will not be considered a waiver on the part of the City, but the City may at any time avail itself of said rights or remedies or elect to terminate this Lease on account of said default. Section 35. Force Maieure. No party to this Agreement will be liable for failures or delays in performance due to any cause beyond their control including, without limitation, any failures or delays in performance caused by strikes, lock outs, fires, acts of God or the public enemy, common carrier, severe inclement weather, riots or interference by civil or military authorities. The rights and obligations of the parties will be temporarily suspended during this period to the extent performance is reasonably affected. Section 36. Publication. Lessee agrees to pay the cost of newspaper publication of this Lease and related ordinance as required by the City Charter. Section 37. _C~a motions. The captions in this Lease are for convenience only, are not a part of this Lease, and do not in any way limit or amplify the terms and provisions of this Lease. Section 38. Severability. A. If, for any reason, any section, paragraph, subdivision, clause, provision, phrase, or word of this Lease or the application hereof 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 Lease, or the application of said Page 15 of 18 term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be affected thereby, for it is the definite intent of the parties to this Lease that every section, paragraph, subdivision, clause, provision, phrase, or word hereof 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 Lease, then the remainder of this Lease is not affected thereby, and in lieu of each such illegal, invalid, or unenforceable clause or provision, a clause or provision, as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Lease automatically. Section 39. Sportsmanship Program. Lessee shall require that all of its coaches and at least one family member of each youth participant shall complete a state or nationally recognized, or Parks Director approved, parent and coach sportsmanship program. Section 40. Complaint Notice. Lessee will post a notice at Premises, in a form approved by the Parks Director, that if any participant or spectator has any complaints or concerns they may contact the City at 880-3461 and talk to the Parks Director, or designee. Executed in duplicate originals on the ~ day of , 2008. ATTEST: Armando Chapa City Secretary APPROVED AS TO LEGAL FORM THI LISL ,;:(cw Assistant ity Attor ey for City Attorney MIRACLE LEAGUE OF CORPUS CHRISTI, INC. Name: LSD ; ~., >,,~o,~-~ Title: P,-~ :~~ Date: ~ ~ Z 8-0 ~ CITY OF CORPUS CHRISTI y ~ ~~~ ;4 ~ . Es~1xw, Tn+cnrti C' y anager S Z~~ day of ~l _, 2008 ~l~,~~ .Sgt AUTHOHI[t~ Rt couNcti. 10 I ~ ti~...~, s~c~TARr ~- Page 16 of 18 STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on the day of ~ ~~~ ' 2008, by ~ ~ irti~ ~-Q.Ua,YLP~, President of Miracle League of Corpus Christi, Inc., a Texas nonprofit corporation, on behalf of the corporation. ~~q~`~~L~Cru~ Commission expires: ~ ~~~ ~~~ ;:^""~ OLGA DELACRU2 i _ ~ Notary Public, State Of Teaas y~, `~~ ~+;!,~;,;,,•• My Commission Expires Aupusl 19, 2009 Page 17 of 18 EXHIBIT A Property Description either survey or metes and bounds LEGAL DESCRIPTION 0.98 ACRE TRACT EXHIBIT "A" BEING A 0.98 ACRE TRACT OP LAND OUT OF LO"f G, CLIFF MAIJS TRAC'T'S "C,D,E,F' AND G" A MAP OF WHICH IS RECORDED IN VOLUME 27, PAGE 95, MAP RECORDS OF NUECES COUNTY, 'TEXAS, ALSO BEING OUT OF A 91.70 ACRE TRACT OF LAND AS DESCRIBED IN DOCUMF,NT NUMBER 2002010930, OFFICIAL PUBLIC RECORDS, NUECES COUNTY, 'T'EXAS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING at a 5/8" iron rod found for the northwest corner of said 91.70 acre tract, said corner being on the east right-of--way line of Airport Road, Thence North 88°29'47" East with the north line of said 91.70 acre tract, a distance of 548.05 feet to the POINT OF BEGINNING for this herein described 0.98 acre tract of land; Thence North 88°29'47" East, with the north line of said 91.70 acre tract, a distance of 215.00 feet to a point for corner; Thence South O I °30' 13" East, across said 91.70 acre tract, and perpendicular to said last course, a distance of 125.00 feet to a point for corner; Thence South 48°27'58" West, across said 91.70 acre tract, a distance of 163.25 feet to a point for corner; Thence South 88°29'47" West, across said 91.70 acre tract, and parallel with its' north line, a distance of 90.00 feet to a point for corner; Thence North O I °30' 13" West, across said 91.70 acre tract, a distance of'2'30.00 feet to the YOIN'I' OF BEGINNING and containing 42,888 square feet or 0.98 acre. NOTE: ALL BEARINGS ARE GRID BEARINGS BASED ON THE TEXAS COORD[NA'I'E SYSTEM FOR TI IE LAMBERT SOUTI I ZONE (NAD 1983) AND ALL DISTANCES ARE TRUE DISTANCES. n VI _ Larry A. I her, KPLS Registere rofessional Land Surveyor 'T'exas Registration No. 4]47 Naismith Engineering, Inc. Date: Ju.~ ~ ZO -4E.' `, „; ' lY-- S~y~ h ~: ~~;;. < L:\LANU\8040\M&R's0.98ACRESJoc Pnge I of I ~n ~ tao so o ioo zoo +E SCALE IN FEET $~/ CORPUS CHRISTI STATE SCHOOL POINT OF BEGINNING N88'29'47'E 548.05' ~ N88'29'47"E 215.00' o W ~ ' POINT OF o COMMINCING o M hh N ~N 0.98 ACRE ~ - ~ 42, 888 SQ. FT. , ,~ x . ~ o ~ ~y ti ; ~' tao ~ 91.70 ACRES ,, o Z 6 1 $~ n; DOC. /{ 2002010930 g ~ O. P. R. , N. C , TX. '~. 5R~ 58879 ~47"W 90.00' LEGEND: Nora AN RFAR/Nf,S ARF CRIO AFAR/NGS RASED ON >'i~F- } ` i • 5~8~ IRF THE TEXAS COORDINa7E SYSTfAI fOR 7Hf ~1 LAMBERT SOUTH ZONE (N40 1987) AND ALL ~ V-:4~~=; ~ = CA[CULAT£D PO/N7 DISTANCES ARf 7RUf DISTANCES / I, Larry A. Fisher, Registered Professional Land Surveyor, hereby certify that this /, ^` ~ ~( p 7- p n EXl7~0~1 B survey map wee prepared trom en actual on the ground survey made under my direction a d i i d t th f l n superv s on, an repreeen e e ee s found at the time of survey, end that this NaismithEngineerir survey aubetantially complies ~rit6 the ^NeIN![RIN~^lNVIRONMlNTALaI ~I current standards adopted by the Texas Roa of Professional 7~gnd s ing. 0.98 ACRE TRACT OF LAND Q / ~ ~ OUT OF A 97.70 ACRE TRACT OF U ~ J ' AS RECORDED IN Larry A. i er. R.P.L.S. DOCUMENT ,/ 2002010930 Registers oteasional Land Surveyor OFFICIAL PUBLIC RECORDS, Tezae Regiatretion N o . 4147 NUECES COUNTY, TEXAS ~ f Dnte: ~~,alu A. !_/lftA Ooh 81tM ~ewq LAF sa t"-tOD' ~ MIMC Page 18 of 18 EXHIBIT B INSURANCE REQUIREMENTS LESSEE'S LIABILITY INSURANCE A. Lessee must not commence work under this agreement until insurance required herein has been obtained and such insurance has been approved by the City. Lessee must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. Lessee must furnish to the City's Risk Manager, (two) 2 copies of Certificates of Insurance, with the City named as an additional insured for all liability policies. A blanket waiver of subrogation is required on all applicable policies showing the following minimum coverage by insurance company(s) acceptable to the City's Risk Manager. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30-Day written notice of cancellation, material Bodily Injury and Property Damage change, non-renewal or termination is required on Per occurrence /aggregate all certificates Commercial General Liability including: $1,000,000 COMBINED SINGLE LIMIT 1. Commercial Form 2. Premises -Operations 3. Products/ Completed Operations Hazard 4. Contractual Liability 5. Broad Form Property Damage 6. Independent Contractors 7. Personallnjury LIQUOR LIABILITY COVERAGE $1,000,000 COMBINED SINGLE LIMIT If liquor being served C. In the event of accidents of any kind, Lessee must furnish the Risk Manager with copies of all reports of any accidents within ten (10) day of any accident. II. ADDITIONAL REQUIREMENTS A. Certificate of Insurance: The City of Corpus Christi must be named as an additional insured on the liability coverage, and a blanket waiver of subrogation is also required. If your insurance company uses the standard ACORD form, the cancellation clause (bottom right) must be amended by adding the wording "changed or" between "be" and "canceled", and deleting the words, "endeavor to", and deleting the wording after "left". In lieu of modification of the ACORD form, separate policy endorsements addressing the same substantive requirements are mandatory. The name of the project must be listed under "Description of Operations" At a minimum, a 30-day written notice of cancellation, material change, non-renewal or termination and a 10 day written notice of cancellation for non-payment of premium is required. 2008 Miracle League lease ins. req. 6-19-OS ep Risk Management Exhibit C DESCRIPTION OF IMPROVEMENTS TO BE CONSTRUCTED 14,000 square foot solid surtace baseball field with backstop and fencing. There will be extra wide dugouts, wheelchair accessible bleachers, a concession stand and announcers box. Future improvements could be a scoreboard and stadium lighting. There will be a perimeter security fence to protect the improvements.