HomeMy WebLinkAboutC2010-019 - 1/26/2010 - ApprovedSTATE OF TEXAS § USE AGREEMENT RELATING TO
§ CONSTRUCTION AND DONATION OF
§ IMPROVEMENTS AT THE ANTONIO E.
COUNTY OF NUECES § GARCIA PARK
THIS USE AGREEMENT RELATING TO CONSTRUCTION AND DONATION OF
IMPROVEMENTS AT THE ANTONIO E. GARCIA PARK (Agreement) is made and entered
into this 24th day of February, 2010, after the reading of the Amendment to the CITY's Lease
for the Antonio E. Garcia Arts and Education Center, by and between the Junior League of
Corpus Christi, Inc., a Texas nonprofit corporation (JUNIOR LEAGUE), and the City of Corpus
Christi, Texas, a municipal corporation (CITY).
WHEREAS, JUNIOR LEAGUE desires to use certain areas of CITY property known as the
Antonio E. Garcia Park to construct and donate to CITY playground facilities, outdoor classroom
and fitness walking path (IMPROVEMENTS); and
WHEREAS, JUNIOR LEAGUE and CITY mutually desire to enter into this Agreement for the
benefit of the public; and
WHEREAS, JUNIOR LEAGUE has demonstrated to City Manager that JUNIOR LEAGUE has
sufficient funding to complete its obligations under this Agreement, as evidenced by Exhibit A
attached hereto;
NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements
contained and subject to the terms and conditions stated in this Agreement, JUNIOR LEAGUE
and CITY agree as follows:
1. TERM
This Agreement shall commence on the date first written above and terminate upon
completion of the Improvements described below by JUNIOR LEAGUE and their acceptance by
CITY. The parties anticipate that the Improvements shall be completed and donation of the
Improvements to CITY by JUNIOR LEAGUE completed by April 10, 2010. If there is any
delay past April 10, 2010 in the completion of the Improvements, such delayed Improvements
shall be included under the terms of this Agreement and shall be considered donated to CITY by
JUNIOR LEAGUE as of April 10, 2010, although JUNIOR LEAGUE retains responsibility for
such delayed Improvements' completion, as stated in this Agreement.
2. USE OF CITY'S PROPERTY
In consideration of the construction of Improvements and donation thereof to CITY,
CITY does hereby grant to JUNIOR LEAGUE during the term of this Agreement the use of
certain areas of the Antonio E. Garcia Park as indicated on the JUNIOR LEAGUE plans for
construction of the Improvements. (CITY'S Property). CITY grants use of CITY's property
only for the construction of certain Improvements. The description and design of the
Improvements is attached as Exhibit A. JUNIOR LEAGUE agrees to maintain CITY's property
Junior League of CC
2010-019
Ord. 028473
01/26/10
1
~~V~~~~
in a sanitary, safe and clean condition during JUNIOR LEAGUE's use of CITY's property.
JUNIOR LEAGUE further agrees and covenants that CITY's property and any and all
Improvements shall at all times be subject to inspection by CITY.
3. CONSTRUCTION OF IMPROVEMENTS
A. During the term of this Agreement, JUNIOR LEAGUE shall oversee construction of the
Improvements in accordance with this Agreement. JUNIOR LEAGUE shall review all
construction invoices and shall make payment if the work has been satisfactorily
completed. Improvement plans and specifications and all construction upon CITY's
property shall comply with all applicable federal, state or municipal laws and
requirements. During the progress of all work, CITY's duly authorized representative
may enter upon the premises and make inspections reasonably necessary for the purpose
of satisfying CITY that the work or construction meets its requirements or standards.
Before any work on CITY property begins, JUNIOR LEAGUE shall present the Director
of Parks and Recreation with evidence of JUNIOR LEAGUE'S and contractors'
insurance coverages and CITY building and construction permits. JUNIOR LEAGUE
shall comply with the insurance requirements attached as Exhibit B, and require its
contractor(s) also to comply with the attached insurance requirements.
B. The plans and specifications are subject to approval of CITY's Director of Engineering.
Construction of improvements shall not begin until CITY'S Director of engineering has
reviewed and approved the construction plans and specifications.
C. Except as otherwise specified herein, JUNIOR LEAGUE shall include in all
JUNIOR LEAGUE construction agreements for the Improvements, the following
provisions:
Contractor hereby agrees 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 Contractor's
own cost and expense defend and protect CITY from all those claims and demands,
2. In any and all claims against any party indemnified hereunder by any employee of Contractor, any
subcontractor, anyone directly or indirectly ~nployed by any of them or anyone for whose acts arty of
them may be liable, the indemnification obligation herein provided shall not be limited in anY ~Y ~' 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 ants.
D. JUNIOR LEAGUE expressly agrees that it will neither give nor grant or purport to give or
grant any mechanic's or materialmen's lien upon CITY'S property or upon any Improvements
thereupon in the process of construction or repair, or allow any condition to exist or
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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
JUNIOR LEAGUE shall discharge each of these liens within thirty (30) days after notice
of filing of each lien.
E. The Director of Engineering may direct JUNIOR LEAGUE or its contractor to perform
reasonable corrective action in construction of Improvements.
F. JUNIOR LEAGUE shall conduct its operations under this Agreement in an orderly and
proper manner, considering the nature of the operation, so as not to unreasonably annoy,
disturb or endanger others.
4. COST OF IMPROVEMENTS
The complete cost of developing all necessary plans and specifications, as well as the
cost of materials and construction of the Improvements by JUNIOR LEAGUE, as provided in
this Agreement and on Exhibit A, within the aggregate budget shown on Exhibit A, shall be
borne solely by JUNIOR LEAGUE and shall be at no expense to CITY whatsoever.
5. OWNERSHIP AND MAINTENANCE OF IMPROVEMENTS
Upon completion or installation of each of the Improvements on or in CITY's
property during the term of this Agreement, JUNIOR LEAGUE shall donate each Improvement
to CITY and relinquish all maintenance obligations thereto to CITY as of the date of said
completion or installation. All Improvements that may be installed or erected by JUNIOR
LEAGUE after the term of this Agreement shall become part of CITY's property upon
completion of the Improvement by JUNIOR LEAGUE as provided in this Agreement. JUNIOR
LEAGUE shall have no responsibility to maintain any Improvement as of the completion of the
Improvement by JUNIOR LEAGUE, except as provided in this Agreement. Any warranties
given to JUNIOR LEAGUE regarding Improvements, or any part thereof, shall be transferred
and assigned to CITY at the same time as the Improvements are transferred to CITY. JUNIOR
LEAGUE agrees to execute all documents that CITY deems necessary to accomplish the transfer
of the Improvements to CITY.
6. INDEMNIFICATION
JUNIOR LEAGUE hereby agrees 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 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 JUNIOR LEAGUE, its officers, agents, employees, invitees, or other person for
whom it is legally liable, with regard to the performance of this Agreement. JUNIOR
LEAGUE'S indemnification and hold harmless obligation hereunder shall end at the expiration
of the term of this Agreement.
In addition, JUNIOR LEAGUE does hereby agree to waive all claims, release,
indemnify, defend 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 JUNIOR LEAGUE
employee or volunteer or for loss of, damage to, or loss of use of any property of any JUNIOR
LEAGUE employee or volunteer, arising out of or in connection with the performance of this
Agreement. During the term of this Agreement, this indemnification by JUNIOR LEAGUE
shall include, but not be limited to liability arising from worker's compensation and general
liability claims.
7. RULES AND REGULATIONS, SIGNAGE AND DEVELOPMENT
STANDARDS
JUNIOR LEAGUE agrees to observe and obey any and all rules and regulations and
all other federal, state and municipal rules, regulations, ordinances and laws, including but not
limited to the impact fees, subdivision rules and regulations, zoning, landscape standards and the
construction sections of the Code of the City of Corpus Christi, and require its officers, agents,
employees, members, contractors and suppliers to observe and obey the same. Signage shall
comply with CITY ordinances. JUNIOR LEAGUE agrees to obtain, from all governmental
authorities having jurisdiction, all licenses, certificates and permits necessary for the conduct of
its operations and to keep them current.
8. DEFAULT
If at any time during the term of this Agreement, JUNIOR LEAGUE shall fail to
commence the work in accordance with the provisions of this Agreement or fail to diligently
provide services in an efficient, timely and careful manner and in substantial accordance with the
provisions of this Agreement, or fail to use an adequate number or quality of personnel or
equipment to complete the work or fail to perform any of its obligations under this Agreement,
then CITY shall have the right, if JUNIOR LEAGUE shall not cure any default after thirty (30)
days written notice thereof, to terminate this Agreement and may complete the work in any
manner it deems desirable, including engaging the services of other parties therefor. This act by
CITY shall not be deemed a waiver of any other right or remedy of CITY.
9. INDEPENDENT CONTRACTOR
JUNIOR LEAGUE covenants and agrees that it is an independent contractor and not
an officer, agent, servant or employee of CITY; that JUNIOR LEAGUE shall have exclusive
control of and exclusive right to control the details of the work performed hereunder and all
persons performing same, and shall be responsible for the acts and omissions of its officers,
agents, employees, members, contractors, subcontractors and consultants; that the doctrine of
respondeat superior shall not apply as between CITY and JUNIOR LEAGUE, its officers,
agents, employees, members, contractors, subcontractors and consultants and nothing herein
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shall be construed as creating a partnership or joint enterprise between CITY and JUNIOR
LEAGUE.
Additionally, JUNIOR LEAGUE covenants and agrees that the employees and
volunteers of JUNIOR LEAGUE participating in the construction of the Improvements, or
participating in any other activity arising under or related to this Agreement, are solely
employees and volunteers of JUNIOR LEAGUE and they are not employees or volunteers of
CITY and they are not under the control, supervision or administration of CITY and they agree
to hold CITY harmless for any injury, damage or claim they may sustain while participating in
the Improvements construction process.
10. SUCCESSORS AND ASSIGNS
CITY and JUNIOR LEAGUE shall bind themselves, their successors, executors,
administrators and assigns to the other party to this Agreement. Neither CITY nor JUNIOR
LEAGUE will assign, sublet, subcontract or transfer any interest in this Agreement without the
written consent of the other party. No assignment, delegation of duties or subcontract under this
Agreement will be effective without the written consent of both parties.
11. NOTICES
Unless CITY designates otherwise in writing, all written communications to CITY
pursuant to this Agreement shall be sent to CITY at:
Margie Rose
Assistant City Manager
City of Corpus Christi
Post Office Box 9277
Corpus Christi, Texas 78469-9277
Unless JUNIOR LEAGUE designates otherwise in writing, all written
communications to JUNIOR LEAGUE pursuant to this Agreement shall be sent to JUNIOR
LEAGUE at:
The Junior League of Corpus Christi, Inc.
President
4050 Weber
Corpus Christi, Texas 78411
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed in its
name and on its behalf as of the day and date first above written.
THE JUNIOR LEAGUE OF CORPUS CHRISTI, INC.
By:
Amy rown, President
CITY OF CORPUS CHRISTI, TEXAS
By: ~ ~i~'~"'
Angel Escobar, City Manager ~ A ~~gC~~3
~l AUTNORIGED
ATTEST: ~1' CEIli1~CIL ~_ ~ 2(0 /0
.„G
]~ SECRETARY f~ .
Armando Chapa, City Secr ary
APPROVED AS TO FORM ONLY: ~~, ~ ~ , ~ ~
Lisa Aguilar, ~.-t-er~ -,- ~:`+y iftk~J~~ y
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State of Texas §
County of Nueces §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this
day personally appeared Amy Brown, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that she executed same for and as the act and
deed of THE JUNIOR LEAGUE OF CORPUS CHRISTI, INC. and as President thereof, and for
the purposes and consideration therein expressed and in the capacity therein stated.
~ Sf
GIVF.~N UNDER MY HAND AND SEAL OF OFFICE this the ~ day of January, 2010.
JUANAJEAN BARYON
My Commission Expires i'
June 3, 2013 ~ ~ ~i Cfi,1.ll ~~ ~/ l~Z~~
Not~y Public In and-F'or the State of Texas
State of Texas
County of Nueces
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this
day personally appeared Angel Escobar, known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that he executed same for and as the act
and deed of THE CITY OF CORPUS CHRISTI, TEXAS, a municipal corporation of Nueces
County, Texas, and as City Manager thereof, and for the purposes and consideration therein
expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of January, 2010.
,o~P~"~p~e~,=- GLENDA ~. QR~ISz
*= Notary Pubtlc
:~ _ `•;~,•~ STATE OF TEXAS
-~~'~''q,~oF,Ew?°~°' My Comm, Exp. 05-07-2012
O~ `
Notary Public In and For the St of Texas
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EXHIBIT A
JUNIOR LEAGUE OF CORPUS CHRISTI, INC.
ANTONIO E. GARCIA PARK IMPROVEMENTS BUDGET 2009/2010
Junior League of Corpus Christi 2009/2010 Playground Pals budget $20,000.00*
Earl C. Sams Foundation Grant $5,000.00
Coastal Bend Diabetes Initiative Grant $10,000.00
Total Budget $35,000.00
COST AND DESCRIPTION OF IMPROVEMENTS
Playground /Fitness Equipment $24,984.21
Walking Track $ 5,000.00
The walking track will be 6 feet wide and four inches thick
with crushed concrete over a geo grid or geo mat with a plastic
edge barrier. Soil will be pre-treated for weeds.
Outdoor Classroom (Donated) ($ 2, 000.00 value)
Landscaping (Donated) ($ 8, 000.00 value)
Total cost of Improvements $29,984.21
* $10,000 of this $20,000 currently has been approved and the other $10,000 is pending
anticipated approval by the Junior League Membership on January 22, 2010.
EXHIBIT B
INSURANCE REQUIREMENTS
I. JUNIOR LEAGUE and CONTRACTOR'S LIABILITY INSURANCE
A. JUNIOR LEAGUE and its Contractor shall not commence work under this agreement until all
insurance required herein has been obtained and approved by CITY's Risk Manager or designee.
JUNIOR LEAGUE and its Contractor must not allow any subcontractor to commence work until
all similar insurance required of the subcontractor has been so obtained.
B. JUNIOR LEAGUE and its Contractor shall furnish to the Risk Manager or designee two (2)
copies of Certificates of Insurance, showing the following minimum coverage by an insurance
company(s) acceptable to the Risk Manager or designee. CITY must be named as an additional
insured for the General Liability policy, and a blanket waiver of subrogation is required on all
applicable policies.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30 day written notice of cancellation, non- Bodily Injury and Property Damage
renewal, material change or termination Per occurrence /aggregate
required on all certificates and policies
Commercial General Liability including: $1,000,000 COMBINED SINGLE LIMIT
1. Broad Form
2. Premises -Operations
3. Products/ Completed Operations
4. Contractual Liability
5. Broad Form Property Damage
6. Independent Contractors -Volunteers
AUTOMOBILE LIABILITY -- OWNED, $500,000 COMBINED SINGLE LIMIT
NON-OWNED or RENTED
WHICH COMPLIES WITH THE TEXAS WORKER
WORKERS' COMPENSATION COMPENSATION ACT AND SECTION II OF THIS
EXHIBIT
EMPLOYERS' LIABILITY $100,000/ $ 100,000/ $100,000
C. In the event of accidents of any kind, JUNIOR LEAGUE and its Contractor shall furnish the
Risk Manager with copies of all reports of such accidents within ten (10) days of the accident.
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II. ADDITIONAL REQUIREMENTS
A. JUNIOR LEAGUE and its Contractor must obtain workers' compensation coverage
through a licensed insurance company in accordance with Texas law. The contract for
coverage must be written on a policy and endorsements approved by the Texas
Department of Insurance. The coverage provided must be in amounts sufficient to assure
that all workers' compensation obligations incurred will be promptly met.
B. JUNIOR LEAGUE's and its Contractor's financial integrity are of interest to CITY;
therefore, subject to JUNIOR LEAGUE'S and its Contractor's right to maintain
reasonable deductibles in such amounts as are approved by CITY, JUNIOR LEAGUE
and its Contractor shall obtain and maintain in full force and effect for the duration of this
Contract, and any extension hereof, at JUNIOR LEAGUE's and its Contractor's sole
expense, insurance coverage written on an occurrence basis, by companies authorized
and admitted to do business in the State of Texas and with an A.M. Best's rating of no
less than A- (VII).
C. CITY shall be entitled, upon request and without expense, to receive copies of the
policies, declarations page and all endorsements thereto as they apply to the limits
required by CITY, and may require the deletion, revision, or modification of particular
policy terms, conditions, limitations or exclusions (except where policy provisions are
established by law or regulation binding upon either of the parties hereto or the
underwriter of any such policies). JUNIOR LEAGUE and its Contractor shall be required
to comply with any such requests and shall submit a copy of the replacement certificate
of insurance to CITY at the address provided below within 10 days of the requested
change. JUNIOR LEAGUE and its Contractor shall pay any costs incurred resulting from
said changes. All notices under this Article shall be given to CITY at the following
address:
City of Corpus Christi
Attn: Risk Management
P.O. Box 9277
Corpus Christi, TX 78469-9277
(361) 826-4555- Fax #
D. JUNIOR LEAGUE and its Contractor agree that with respect to the above required
insurance, all insurance policies are to contain or be endorsed to contain the following
required provisions:
• Name CITY and its officers, officials, employees, volunteers, and elected representatives
as additional insured by endorsement, as respects operations and activities of, or on
behalf of, the named insured performed under contract with CITY, with the exception of
the workers' compensation policy;
• Provide for an endorsement that the "other insurance" clause shall not apply to CITY of
Corpus Christi where CITY is an additional insured shown on the policy;
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• Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of CITY; and
Provide thirty (30) calendar days advance written notice directly to CITY of any
suspension, cancellation, non-renewal or material change in coverage, and not less than
ten (10) calendar days advance written notice for nonpayment of premium.
E. Within five (5) calendar days of a suspension, cancellation, or non-renewal of coverage,
JUNIOR LEAGUE and its Contractor shall provide a replacement Certificate of
Insurance and applicable endorsements to CITY. CITY shall have the option to suspend
JUNIOR LEAGUE's and its Contractor's performance should there be a lapse in
coverage at any time during this contract. Failure to provide and to maintain the required
insurance shall constitute a material breach of this contract.
F. In addition to any other remedies CITY may have upon JUNIOR LEAGUE's or its
Contractor's failure to provide and maintain any insurance or policy endorsements to the
extent and within the time herein required, CITY shall have the right to order JUNIOR
LEAGUE or its Contractor to stop work hereunder, and/or withhold any payment(s)
which become due to Contractor hereunder until JUNIOR LEAGUE or its Contractor
demonstrates compliance with the requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to which
JUNIOR LEAGUE and its Contractor may be held responsible for payments of damages
to persons or property resulting from JUNIOR LEAGUE'S or its Contractor's or its
subcontractor's performance of the work covered under this agreement.
H. It is agreed that JUNIOR LEAGUE'S and its Contractor's insurance shall be deemed
primary and non-contributory with respect to any insurance or self insurance carried by
CITY for liability arising out of operations under this contract.
I. It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this contract.
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