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HomeMy WebLinkAboutC2008-450 - 11/18/2008 - ApprovedTHE STATE OF TEXAS § Construction and Lease Agreement Relative to Dick Runyan Field located at Evelyn Price Park COUNTY OF NUECES § WHEREAS, Convent Academy of the Incarnate Word ("IWA") desires long-term lease for use City property located at or near the area known as Dick Runyan Field at Evelyn Price Park, and permission to construct and use certain improvements described on attached Exhibit A ("Improvements"); and WHEREAS, CITY and IWA are mutually desirous of entering into this Agreement for the benefit of the public; NOW THEREFORE, in consideration of the mutual covenants, promises and agreements contained and subject to the terms and conditions stated in this Agreement, IWA and CITY agree as follows: I. Term This Agreement has a five year term which shall commence on date of City Council approval, unless terminated as herein provided. II. Use of City's Property CITY does hereby grant to IWA during the term of this Agreement the use of certain areas located at or near Dick Runyan Field at Evelyn Price Park for construction and use of the Improvements for the IWA baseball program. A description of the Dick Runyan Field at Price Park Improvements is attached as exhibit A. Dates of IWA usage are included in Article IV of this agreement III. Construction of Improvements A. During the term of this Agreement, IWA shall construct the Improvements in accordance with this Agreement. The parties anticipate that the Improvements shall be completed within B. IWA desires to construct additional improvements to the Facility, subject to approval of the City Manager. Specifically, IWA contemplates the construction of batting cages and a new scoreboard. All improvements must be constructed in accordance with this agreement. 2008-450 (1) 11/18/08 Ord. 027943 [ncarnate Word Academy C. When constructing any improvements, the plans and specifications shall be prepared by state-licensed architects or engineers only if required by City Director of Engineering or applicable State laws or regulations. The plans and specifications are subject to approval of the City Director of Engineering and City Director of Parks and Recreation ("Director"). City shall have 15 days from the date of submission to approve the plans and specifications. Any plans and specifications not approved or rejected within the 15 day period shall be deemed approved by the City. D. IWA 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: 1. Payment Bond - A payment bond in the amount of One Hundred Percent (100%) of the contract 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 as an Obligee. This requirement only applies if the amount of this construction contract is $25,000 or more. 2. Performance Bond - A performance bond in the amount of One Hundred Percent (100%) of the Contract shall be furnished covering the faithful performance of the contract. The performance bond shall be made with CITY as an Obligee. This requirement onl~apnlies if the amount of this construction contract is $100,000 or more. E. Except as otherwise specified herein, IWA shall include in all IWA construction agreements for the Improvements, the following provision: 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, 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. F. Except as otherwise specified herein, IWA shall also require the contractors, in all IWA 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: (2) Prior to commencement of any activity permitted on City of Corpus Christi's property, provided in the Use Agreement Relating to the Construction and Donation of the Dick Runyan Field at Price Park Improvements entered into on day of , 2008, between the IWA and the City of Corpus Christi, or this contract, 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' Compensation as required by law. Employer's Liabilitv Insurance of not less than $100,000.00 for each accident, $100,000.00 disease for each employee, $100,000.00 disease as policy limit. Commercial General Liabilitv Insurance, including Independent Contractor's Liabilitv, Products/Completed Operations Contractual Liabilitv, and Broad Form Property Damage 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. Commercial Vehicle Liability Insurance, covering owned, hired and non-owned vehicles, with a combined single limit for bodily injury and property damage of $1,000,000 per occurrence. Builder's Risk. The Contractor shall purchase a completed value all risk builder's risk policy 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 IWA each as an 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 ten (10) days written notice of cancellation to the City of Corpus Christi, for nonpayment of premium. Thirty (30)days written (3) notice of cancellation (other than non-payment of premium), material change, termination or non-renewal shall also be required. c. Be written through insurance 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: Sally Gavlik Director of Pazks & Recreation City of Corpus Christi Post Office Box 9277 Corpus Christi, Texas 78469-9277 and Donna James -Spruce Risk Manager City of Corpus Christi Post Office Box 9277 Corpus Christi, Texas 78469-9277 G. IWA 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. H. IWA 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 IWA as such obligations mature. IWA 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 properly or Improvements thereon, and IWA will discharge any such lien within thirty (30) days after notice of filing thereof. I. 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. (4) J. Before any work on City property begins, IWA shall present the City Director of Parks and Recreation with evidence of Contractor's insurance coverages, and City building and construction permits. K. Upon completion of the Improvements, IWA donates the Improvements to City for acceptance by CITY Manager. Any warranties given to the IWA regarding Improvements shall be transferred and assigned to CITY at the same time as the Improvements are transferred to the CITY. L. In the event of damage or destruction to the Improvements, CITY shall have no obligation to repair or rebuild the Improvements or any fixtures, equipment or other personal property installed by IWA. M. IWA acknowledges that it has read and agrees to the provisions in the attached Exhibit, Notice of Prior Use, which contains additional provisions regarding development over closed landfill. IV. RENTAL OF CITY PROPERTY In consideration of the Improvements City grants IWA the exclusive use of the improved Dick Runyan Feld and associated dugouts, restrooms and the IWA-constructed improvements ("Facility") solely for IWA's baseball program, from January 1 through May 30 of each year ("IWA Baseball Season"), ending five years afrer City Council approval City shall not have the right to use or rent the Facility during the IWA Baseball Season of each year. IWA shall pay the then-current rental fees (currently estimated to be $1600.00 per month), along with standard fees for lighting or staff as requested or used by IWA, such fees as may be increased in accordance with City Code of ordinances; however, IWA shall receive against any rent adollar-for-dollar credit for all actual costs paid by IWA for any improvements made by IWA to the Facility, which were previously approved by the City Director of Parks and Recreation. This shall include all improvements throughout the term of this Lease but shall not include normal, routine maintenance of the Facility. IWA shall promptly supply City Director with documentation to establish costs paid by IWA for construction prior to requesting credit towards the rental fees. Any uncredited amount remaining at the end of this Lease is extinguished upon termination of this Lease, and the City shall have no responsibility to reimburse IWA for any uncredited balance remaining at the end of this lease. The current field rental rates are: For Practice days, the rate is $25.00 dollars per hour of use, the Rental rate on Game day or Tournament is $75.00 per day per field with light $8.00 per hours & for Staff opening and closing the complex up is $9.00 per hour. A. IWA shall not have the right to allow any other party to use the Facility. City shall have the right to use the Facility or allow others to rent the Facility at times other than the IWA Baseball Season. City currently plans to use the Facility for its summer and fall leagues, during June through November, of each year. (5) B. Maintenance and repair. During IWA Baseball Season, IWA shall be responsible for prompt maintenance and repairs of the Facility as follows: IWA will perform Facility maintenance which includes but is not limited to, prepping the field, chalking the field, dragging the field, watering the field, adding dirt as need, mowing the field as needed, with all maintenance to be performed in accordance with reasonable standards set by the City Parks and Recreation Director. Additionally, during IWA Baseball Season, IWA is responsible to repair the Facility when damaged during IWA's baseball program, subject to prior approval of the Director. During the non-IWA Baseball Season, IWA maintenance responsibilities are limited to mowing the infields. C. IWA shall not allow alcoholic beverages, drugs or tobacco products to be permitted or consumed on the Facility. D. During IWA Baseball Season, IWA will responsible to make sure the Facility is kept clean and neat in appearance,including but not limited to the fields, dugouts, and restrooms. During IWA Baseball Season, IWA is responsible to arrange for trash pickup, at least once a week. City will be responsible for trash removal during other times. E. Payment for Utilities. IWA must pay for all utilities used by it or for any activity sponsored by IWA 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. F. Signs• (A) IWA 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. IWA shall have the right to construct, install and rent to others outfield and perimeter signs at the Facility. (B) If Signs are approved, the Director, in writing, may require Lessee to repair, or repaint any Signs. If the Signs are not repaired, or repainted within ten (10) days of the Director's written demand, 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. G. Advertisin¢. The Director has the right to prohibit any advertising on the Premises which impairs the reputation of the Premises or the City. H. Securi .IWA shall contract and pay for any and all security it requires at the Premises during the term of this Lease. (6) I. Field evaluation- City will perform an IWA pre-season and post-season inspection of the Field. City reserves the right to require IWA to repair any damages caused to the Facility by IWA, or perform the work itself with reimbursement by IWA. Also, City reserves the right to perform cleanup services in the event City determines that IWA is not maintaining the Facility in accordance with standards established by the Director, with reimbursement by IWA. J. Indemnity. IWA covenants to fully indemnify, save, and hold harmless the City, its officers, 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 may be proximately caused by, (1) the use, operation, maintenance, alteration, or repair of Facility by IWA (2) the operation of IWA's Baseball program; (3) the exercise by IWA of its rights under this Agreement; (4) an act or omission, negligence, or misconduct on the part of other persons having involvement in, participation with, or business with the Facility, IWA, or the IWA's program whether authorized with the express or implied invitation or permission of IWA (collectively, IWA's Invitees) entering upon the Facility pursuant to this Agreement, or trespassers entering upon the Facility during IWA's use or physical occupation of the Premises; or (S) 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. IWA covenants and agrees that if City is made a party to any litigation against IWA or in any litigation commenced by any party, other than IWA relating to this Lease, IWA shall, upon receipt of reasonable notice regarding commencement of litigation, at its own expense, investigate all claims and demands, attend to their settlement or other disposition, defend City in all actions 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. (~> K. Insurance. During its use of the Facility, IWA must secure and maintain at IWA's expense, during the term of this Lease, a Commercral General Liability insurance policy with the limits and requirements shown on Exhibit, which is attached hereto and incorporated herein b~ reference. Failure to maintain such insurance at the limits and requirements shown on Exhibit constitutes grounds for termination of this Lease. L. Termination. (A) The City may terminate for cause this Agreement if IWA no longer is utilizing the Facility for its baseball program, provided that IWA is provided with 60 days notice. In the event this Agreement is terminated by the City without cause, IWA shall receive from the City a prorated amount of the actual cost paid by IWA for improvements to the Facilrty less any amounts credited against accrued rent ("Base amount"). The proration shall be based as follows: Base amount multiplied by the(number of months remaining in the initial 5 year term) divided by 60. IWA shall have the right to terminate this agreement by giving City 60 days written notice prior to the start of any given IWA Baseball Season. In the event IWA gives the required notice, this agreement shall terminate and IWA and City shall be relieved of any future obligation hereunder. If IWA voluntarily terminates the lease under this provision, IWA shall not be entitled to any proration of the cost of the improvements. B) Additionally, if there is noncompliance with one or more of the provisions contained herein, the Director may give IWA written notice to cure or begin curing the default(s) within thirty (30) days of receipt of the notice. If IWA is not in compliance or in substantial compliance with each provision identified by the Director within ten (10) days of receiving said notice, the City Manager may terminate for cause by providing written notice of termination and listing one or more areas of continued noncompliance. V. MISCELLANEOUS A. Notice. 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. 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. All such communications must only be made to the following: City of Corpus Christi Attn: Director of Park & Recreation P. O. Box 9277 Corpus Christi, TX 78469-9277 (361) 880-3461 Incarnate Word Academy Attn: Malcolm Smith 2920 S. Alameda Corpus Christi, Texas 78404 (361) 883-0857, ext 172 (8) Either party may change the address to which notice is sent by using a method set out above. IWA will notify the City of an address change within thirty (30) days after the address is changed. B. 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 to this Agreement which do not change the essential scope. C. 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. D. Force Maieure. No party to this Lease 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. E. Assienment. This agreement may not be, in whole or in part, assigned, transferred, or sublet directly or indirectly without the prior written consent of the City. F. Publication. IWA agrees to pay the cost of newspaper publication of this agreement and related ordinance as required by the City Charter. G. Complaint Notice. IWA 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. IWA BY: /~ Signature O.r~ r 3 AUTHONIZED sY cou~rca ...11.~.L`~.~9~.~.,, .. ~ ~......... T~.a. c: SECR~TARY~~j. or Printed Name or CITY OF CORPUS C~iH~ R~I~S,(TI, TEXAS BY: ~ G-~``~ C' Manager (9) ATTEST: ARMAN O CHAPA, Cit ecretary APPROVED AS TO FORM: Nov . /n, ZppY THE STATE OF TEXAS COUNTY OF NUECES BEFORE ME, the under on this day personally appeared the person whose name is subsc he/she executed same for and thereof, and fo capacity therein stated. ~,ux :_.~~..1.-l.l~, AUiMORCtt~l er aouncu..,.~ l,~(~OB SECBfTARy ~i q . Incarnate Word Academv signed authority, a Notary Public in and for the State of Texas, ~~~ :L.DD 'mom ~ K~,~.,., ,known to me to be •ibed to the foregoing instrument, and acknowledged to me that as the act and deed of Incarnate Word Academy, and as the purposes and consideration therein expressed and in the GIVEN UNDER MY HAND AND SEAL OF OFFICE this the /o ~ day of ~w,a„x,p,,,~ , 2008. S OERALDINB K. TNOMSON I ~~ MY COMM13910N EXPIRES FEBRUARY 17, 2070 Notary Public in and for the State of Texas GQ2d~diMS. ~~ ~OMffr/ Notary Public's Printed Name ~...._.,, r 7, ~ i U My Commissi n Expires (10) 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, and a blanket waiver of subrogation 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 is required Bodily Injury and Property Damage on all certificates Per occurrence /aggregate Commercial General Liability including: $1,000,000 COMBINED SINGLE LIMIT 1. Commercial Form 2. Premises -Operations 3. Products/ Completed Operations 4. Contractual Liability 5. Broad Form Property Damage 6. Independent Contractors 7. Personallnjury C. In the event of accidents of any kind, the Lessee must furnish the Risk Manager with copies of all reports of any accident within ten (10) days of the 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 on all applicable policies. If your insurance company uses the standard ACORD form, the cancellation clause (bottom right) must be amended by adding the wording "changed or" between "be" and canceled", and deleting the words, "endeavor to", and deleting the wording after "left". In the alternative, a copy of a policy endorsement reflecting the required cancellation language is required. The name of the project must be listed under "Description of Operations'. At a minimum, a 30-day written notice of termination, non renewal, material change or cancellation is required. 2008 IWA- Dick Runyon Ball field lease agreement insurance requirements 9-8--08 ep Risk Management END (11) EXHIBIT Notice of Prior Use IWA acknowledges that all or portions of leased premises were a closed municipal solid waste landfill, and acknowledges receipt and acceptance of this notice required by Section 361.537 and 361.539 of the Texas Health and Safety Code and the Texas Commission on Environmental Quality's ("TCEQ") rules in Section 330.962 of Title 30, Texas Administrative Code. IWA acknowledges that the City does not represent the land covered by this lease is suitable for User's intended use. IWA agrees to (a) Comply with all applicable Federal and State of Texas laws and regulations applicable to construction and operation of the facilities contemplated by IWA on the leased premises granted herein, including those applicable to closed municipal solid waste landfills and the regulations relating to same including, but not limited to, Chapter 361 of the Texas Health & Safety Code and Title 30, Part I, Chapter 330, Subchapter T, Texas Administrative Code. (A copy of the current version of Subchapter T has been provided to IWA.) (b) Not to disturb the integrity and function of the final cover, all components of the containment system, and any monitoring systems, without authorization of the TCEQ. (c) Take any action deemed necessary by the TCEQ to restore the final cover, any component of the containment system, or monitoring systems disturbed by the construction, maintenance or operation of any facilities proposed by IWA. (d) Conduct soil test if required by 30 TAC 330.953 before undertaking any development of the property. (e) Obtain a development permit from the TCEQ before commencing any construction of an enclosed structure, if required by 30 TAC 330.954(a). (f) Register any existing structures owned or being used by the IWA, if required by 30 TAC 330.954(c) or TCEQ. (The Director has a copy of the list of structures the City has registered with TCEQ.) (g) Prepare any needed modifications to the Site Operating Plan, if required by 30 TAC 330.959(4) or TCEQ. (The Director has a copy of the current Site Operating Plan that was submitted to TCEQ.) (h) Prepare a Structures Gas Monitoring Plan, if required by 30 TAC 330.959(5) or TCEQ. (The Director has a copy of the current Structures Gas Monitoring Plan that was submitted to TCEQ) (i) Install landfill gas monitoring equipment in any enclosed structures owned or being used by the IWA, if required by 30 TAC 330.959 or TCEQ. (The City has installed and maintains gas monitoring equipment in some enclosed structures on the site as part of the City's Structures Gas Monitoring Plan approved by TCEQ. The City does not warrant that the enclosed structures are suitable, safe for use by adults or children, or do not pose a potential health threat to adults or children. IWA may install additional landfill gas monitoring equipment in any enclosed structures used by IWA, if IWA or its officers, members, employees, agents, contractors, or invitees are concerned with the air quality within the enclosed structures.) (12) Q) Operate any landfill gas monitoring equipment installed by IWA and maintain all necessary records, as required by 30 TAC 330.960. Copies of all required records shall be submitted to the Director on a monthly basis. (k) Prevent the ponding of water on any property under the IWA's control. (I) Submit plans to control the drainage of storm waters from any structures used by the IWA to the Director forreview and approval. (m) Hold the City harmless and indemnify City for any claims, penalties, or violations that result from IWA's, its assigns, or their agents disturbance of the said closed municipal solid waste landfill. (13)