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HomeMy WebLinkAboutC2009-291 - 8/11/2009 - NATHE STATE OF TEXAS ~ Use A regiment Relatin to Construction, Donation and Maintenance of Blucher Park COUNTY OF NUECES ~ Im rovements THIS USE AGREEMENT RELATING TO CONSTRUCTION, DONATION AND MAINTENANCE OF THE BLUCHER PARK IMPROVEMENTS ~"Agreement"} is made and entered into on this ~~ day of , 20Q9, by and between the Corpus Christi Conventio and Visitors Bureau CVB}, Inc., the Audubon Outdoor Club, Audubon Outdoor Club} and the CITY OF CARPUS CHRISTI, TEXAS, a municipal corporation ~"CITY"}. I. Term This Agreement shall commence on the date first written above and continue for one year period, and automatically renew for additional one year periods. This Agreement may be terminated by any party upon thirty days prior written notice prior to the start of the annual term. II. Use of City Property ~...,., CITY does hereby grant to CVB and Audubon Society during the term of this Agreement the use of certain areas located at Blucher Park as indicated on the CVB plans for construction and maintenance of the Blucher Park Improvements. A description of the Blucher Park Improvements is attached as Exhibit A. III. Construction of Im rovements A. When constructing the Blucher Park Improvements, CVB shall ensure that the plans and specifications shall be prepared by state-licensed architects or engineers. The plans and specifications are subject to approval of the City Director of Engineering and Cit Director of Parks and Recreation. B. CVB shall require the Contractors who are awarded contracts for construction of the Blucher Park 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 ~l~~o} 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 2009-291 08/11/09 CC Conven. & Visitors Bureau obligee. This re uirement does not apply if the amount of the construction contract is $25,000 or less. 2. Performance Sond - A performance bond in the amount of One Hundred Percent X1000} 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 re uirement does not apply if the amount of the construction contract is $100,000 or less. C. Except as otherwise specified herein, CVB shall include in all CVB construction agreements for the Blucher Park 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 bath 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. D. Except as otherwise specified herein, CVB shall also require the contractors, in all CVB construction agreements for the Blucher Park Improvements to furnish insurance in such amounts as specified below and include in all construction agreements for the Blucher Park Improvements the following language: 1. 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 Blucher Park Improvements entered into on 7tn day of August 2009, between the CVB 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 ~2} 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. 2. Workers' Compensation as required by law. Employer's Liability Insurance of not less than $100, o0D . 00 for each accident, $lOD, 000.00 disease for each employee, $100,000.00 disease as policy limit. Commercial General Liability Insurance, including Inde endent Contractor's Liability, Products/Completed operations a-~ Contractual Liability, 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. completed value duration of this The Contractor shall purchase a all risk builder's risk policy for the project . 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 CVB 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 ~1D} days written notice of cancellation to the City of Corpus Christi, for nonpayment of premium. Thirty ~3D7days written notice of cancellation bother than non-payment of premium7, material change, termination or non- renewal shall also be required. ~3} c. Be written through insurance companies duly authorized to transact that class of insurance in the State of Texas. d. wive subrogation rights for loss or damage so that insurers have no right to recovery or subrogation against the City of Carpus 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 Parks & 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 E. CVB 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, including but not limited to the Americans with Disabilities Act and the Americans with Disabilities Act Accessibility Guidelines and such work shall be subject to CITY inspection during the performance thereof and after it is completed. F. CVB 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 CVB as such obligations mature. CVB 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 Blucher Park 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 Blucher Park Improvements thereon, and CVB will ~4~ discharge any such lien within thirty ~30~ days after notice of f fling thereof . G. CVB 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. H. Before any work on City property begins, CVB shall present the City Director of Parks and Recreation with evidence of Contractor's insurance coverages, and City building and construction permits. I. The parties anticipate that the Blucher Park Improvements shall be completed within months from date of this Agreement. IV. Cost of Blucher Park Improvements The complete cost of developing all necessary plans and specifications, as provided in this Agreement, and the cost of construction of the Blucher Park Improvements by CVB shall be borne solely by CVB and be at no expense to CITY whatsoever. CVB shall pay all taxes, special assessments, or levies, if any, assessed during the term against or relating to the Blucher Park Improvements on CITY's property, including ad valorem taxes pursuant to the Texas Property Tax Code, until such time as ownership of such Blucher Park Improvements is transferred to the CITY. City shall only be responsible for in kind contribution for native wood chip mulch and a wooden pedestrian bridge valued at approximately $23,000. V. Ownership of Blucher Park Improvements Upon completion of the Blucher Park Improvements, it is CVB's desire to donate the Blucher Park Improvements to CITY. All alterations and Blucher Park Improvements on or in CITY's property at the commencement of the term, or those that may be installed or erected during the term, shall become part of CITY's property upon completion of the Blucher Park Improvements by CVB and acceptance by CITY Manager. Any warranties given to the CVB regarding Blucher Park Improvements, or any part thereof, shall be transferred and assigned to CITY at the same time as the Blucher Park Improvements are accepted by the CITY. X57 VI. Maintenance of Blucher Park Im rovements A. City shall perform cleaning and graffiti removal for the Blucher Park Improvements. B. CVB shall perform maintenance and repair to the Blucher Park Improvements. C. Audubon outdoor Club shall perform cleaning, maintenance and repair of the chimney swifts habitats. VII. Dania a or Destruction In the event of damage or destruction to the Blucher Park Improvements, CITY shall have no obligation to repair or rebuild the Blucher Park Improvements or any fixtures, equipment or other personal property installed by CVB. However, if said damage or destruction occurs prior to CITY's acceptance of the Blucher Park Improvements, any insurance proceeds from any casualty loss shall be applied to the repair or rebuilding of the Blucher Park Improvements, which will be the extent of the CVB's obligation for repair. VIII. Indemnification CVB does hereby agree to waive all claims, release, indemnify and hold harmless CITY and all of its officers, officials, agents, and employees, in both their public and private capacities, from any and all liability, claims, suits, demands, losses, damages, attorney's fees, including all expenses of litigation or settlement, or causes of action which may arise by reason of injury to or death of any person ar for loss of, damage to, or loss of use of any property, arising out of or in connection with this Agreement occasioned by error, omission, or negligent act of CVB, its officers, agents, employees, invitees, or other person for whom it is legally liable, with regard to the performance of this Agreement. Audubon Qutdaor Club does hereby agree to waive all claims, release, indemnify and hold harmless CITY and all of its officers, officials, agents, and employees, in both their public and private capacities, from any and all liability, claims, suits, demands, losses, damages, attorney's fees, including all expenses of litigation or settlement, or causes of action which may arise by reason of injury to or death of any person or for loss of, damage ta, or loss of use of any property, arising out of or in connection with this Agreement occasioned by error, omission, or negligent act of Audubon Society, its officers, agents, employees, invitees, or other person for whom it is legally liable, with regard to the performance of this Agreement. ~6} IX. Si na e CVB agrees to request prior approval from the City Director of Parks and Recreation regarding any signage to be placed by CVB on the Blucher Park. Audubon outdoor Club agrees to request prior approval from the City Director of Parks and Recreation regarding any signage to be placed by Audubon Outdoor Club on the Blucher Park. Signage shall comply with CITY ordinances. X. If any utilities are required, needed or desired by CVB, CVB shall bear all costs, expenses and fees of extension connections or tapping charges for water and sanitary sewer facilities on CITY's property, in accordance with the ordinances of the CITY. XI. Independent Contractor ........~ww~w- CVB covenants and agrees that it is an independent contractor and not an officer, agent, servant or employee of CITY. In addition, CVB covenants and agrees that the employees and volunteers of the CVB participating in the construction of the Blucher Park Improvements, or participating in any other activity arising under or related to this Agreement, are solely employees and volunteers of the CVB and they are not employees or volunteers of the CITY nor are they under the control, supervision, or administration of the CITY. XII. Assignment -.--- No party shall assign this Agreement without the prior written consent of the other parties. XIII. Entire Agreement ~~~ mu~~ ~ ~r.rmn.~nun. This Agreement embodies the complete agreement of the parties hereto superseding all oral or written previous and contemporary agreements between the parties relating to matters herein and, except as otherwise provided herein, cannot be modified without written agreement of the parties. ~7} XIV. Notices All notices or communications required under this Agreement or desired to be given by the parties hereto shall be sent in writing, and shall be deemed sufficiently given when same is hand delivered or deposited in the United States mail, sufficient postage prepaid, registered or certified mail, return receipt requested, addressed to the recipient at the address set forth below: City of Corpus Christi Director of Parks and Recreation Post office Box 9277 Corpus Christi, Texas 78469-9277 Corpus Christi Area Convention and Visitors Bureau 101 North Shoreline Drive Suite 434 Corpus Christi, Texas 784x1 Audubon Outdoor Club c/o Leah Pummell Corpus Christi, Texas XV. NonwWaiver It is further agreed that one ~1} or more instances of forbearance by CITY in the exercise of its rights herein shall in no way constitute a waiver thereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. Corpus C risti ea C vention and Visitors Bureau BY: Keith Arnold Chief Executive Officer Audubon Outd r Club, BY •. y r oZ Leah Pummell President ~8} CITY OF CORPUS CHRISTI, TEXAS B Y ,/~ Go~~~'6"' `Ang R. Escobar Cit Manager APPROVED AS TO FORM: ~l~day of , 2009 A BY ~l .~ ~... . Lisa Aguilar, ~ 'ssistant City Attorney '~ ~~ ~~ ~~~r~~ ~9~ ,. r. .~ .. Lisa A uifar CC CVB age `l • ~. . ... .. r .. ~:. ~ ~ 1 From: "Michelle D, Horine" <MHorine@visitcorpuschristitx.org~ To: <IisaA@cctexas.com> Date: 8110/2009 2:03:06 PM Subject: CC CVB Lisa - Here is the information you needed from the CVB to walk this contract up to the City Manager. The contract reads 30 days. The anticipated time of completion is September 1, 2009. The address for the Audubon Outdoor Club is: PO Box 3352, Corpus Christi, TX 78403 Our contractor is patiently waiting with materials for the notice to proceed from the city on the Blucher Park Project. Thank you foryour time. Michelle Thank You, Michelle Horine Vice President Nature Tourism & Communications Corpus Christi Convention & Visitors Bureau 361-881-1818 0 361-446-4152 c 361-888-4998 f 101 N, Shoreline Blvd., Suite 430 Corpus Christi, TX 18401 ~.. a » .. . . Lisa Aguilar - CC CVB ~ ~.~~...w~ ......_~ .~~. .,. , , .h. .. age ... ~, .~ H.. , . ,.. ~: ......K.,, ~,~n „~, email: mhorine@cctexas.org www.VisitCorpusCh ristiTx. org P Please considerthe environment before printing this a-mail. CC: "Richard Thompson" <RichardTh@cctexas.com>, "Keith Arnold" <KArnold@visitcorpuschristitx.org> Note This agreement includes a map of the description of the Blucher Park Improvements. Due to the size of the map, it is not being scanned but can be found attached to the original agreement.