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HomeMy WebLinkAboutC2012-089 - 3/27/2012 - ApprovedPage 1 of 29 BUC DAYS SHORT TERM 2012 LEASE AGREEMENT State of Texas § County of Nueces § Know All By These Presents: This short term Lease Agreement ( "Lease Agreement ") between the City of Corpus Christi, a Texas home -rule municipal corporation ( "City "), acting through its duly designated City Manager, and the Buccaneer Commission, Inc. ("Commission "), a Texas non - profit corporation, acting through its duly designated agent, is in consideration of the covenants contained herein. 1. Definitions. a. City - means the City of Corpus Christi, a Texas home -rule municipality. b. City Attorney- means the City's Attorney or designee. c. City Traffic Engineer - means the City's Director of Engineering Services or designee. d. City Manager - means the City's City Manager or designee. e. Commission — means the Buccaneer Commission, Inc., a Texas non - profit corporation. f. Commission's Agent - means a duly authorized representative of the Buccaneer Commission. g. Event - means the annual Buccaneer Days Festival ( "Buc Days ") and related activities sponsored by the Commission including carnival a barbeque cook -off along Shoreline Blvd; and parade Events. The Event dates are described in Section 2, Section 3 and Exhibit B. h. Parks Director - means the City's Director of Parks and Recreation or designee. i. Police Chief - means the City's Police Chief or designee. j. Premises - means the Event sites for the Buccaneer Days Festival and related activities more fully described in Section 3 and on the attached and incorporated Exhibit A. k. Risk Manager - means the City's Director of Risk Management or designee. I. City Secretary — means the City Secretary or designee 2. Term. This Lease Agreement takes effect upon execution by the City Manager. The Commission will be entitled to exclusive use of the Premises described below, for the 2012 -089 OrdO29402 3127112 Buccaneer Commission INDEXED Page 2 of 29 periods identified on Exhibit B. The City Manager may authorize amendment to Exhibit B. 3. Premises and Permitted Uses. City grants to the Commission the privilege of using City property to conduct its annual Buccaneer Days Festival for the dates set forth in Exhibit B: A. For the Rodeo, Commission, shall obtain a separate agreement with SMG, the City's General Manager of the American Bank Area (Arena). B. For the BBQ Cook Off: Premises are parking lot on the north side of the former Memorial Coliseum location. C. For the Buc Days Festival: City property to be used for the Buc Days Festival includes: Parking lots located north and south of the former Memorial Coliseum site; the grass area located at the former Memorial Coliseum site, and the park bounded by Kinney Street and N. and southbound Shoreline (excluding Sherrill Park. The grass area located at the former Memorial Coliseum site may only be used for tents, and electric drive type of "kiddie" carnival rides, with weight that does not exceed 20,000 pounds per ride. D. If any of the desired Premises include use of the American Bank Arena area ( "Arena Area "), Commission shall obtain separate agreement with SMG, the City's General Manager of the Arena Area. E. For the Buc Days Illuminated Night Parade on Saturday May 5, 2012: Parade begins on Leopard Street at Buc Stadium, goes down Leopard, to Schatzel; turns right off Lawrence, goes south on southbound Shoreline Blvd. to Park Avenue. Breakup area is on southbound Shoreline Blvd. at former Memorial Coliseum area. Street closure and parade permits must be obtained as required in Sections 11 and 21 below. Parade route is depicted on attached Exhibit. F. For the Junior Parade on Saturday April 28, 2012: Parade route is depicted on the attached Exhibit. Street closure and parade permits must be obtained as required in Sections 11 and 21 below G. For the Buc Days fireworks event, Commission has requested the use of McGee Beach for fireworks launching, which is subject to grant of a fireworks permit by the Corpus Christi Fire Department. H. Landscaped areas within the Premises or utilized for the Event must be protected by the Commission. I. For all activities on the barge dock and adjacent waters, Commission shall obtain separate agreements with all necessary parties. 4. Premises Revisions. Construction along Shoreline may impact and change the Premises (Exhibit A) and other parts of this lease. If Exhibit A is revised, new Exhibits Page 3 of 29 A will be executed by the City Manager and Commission Agent and filed with the City Secretary and Parks Director and supersede the existing Exhibit A. New Exhibit A becomes effective upon date of last signature. 5. Event Layout Diagram. The Commission's Agent must provide the Parks Director a diagram explaining the final Event layout for all related activities at least two weeks prior to the Event. Layout of the Event is subject to the approval of the Parks Director. 6. Special Event Fee. The Commission must pay City a one -time Special Event Permit fee established under City ordinance. 7. Payment of City Costs. In consideration for the use of City property the Commission will pay the City within 30 days after receipt of City invoice the actual cost incurred for services rendered, including any other City services provided by departments other than Parks & Recreation and Police, less any amount(s) that the Commission has disputed. An invoiced amount will be considered to be in dispute upon receipt, by the Parks Director, of a written notice from the Commission. The written notice must detail the basis for the disputed claim and must be received by Parks Director within twenty (20) calendar days of Commission's receipt of City invoice. Resolution and payment of any disputed amount(s) will be governed by Section 27. The Parks Director will invoice the Commission for the costs within thirty (30) calendar days after the Event. The invoice will provide an itemized breakdown of the City charges for services rendered (such as set up and take down, Event clean -up, street sweeping, and repair categories. Upon receipt of written request of the Commission's Agent, the. Parks Director will furnish reasonable supporting documentation of the charges within ten (10) calendar days. If there is a hurricane or other weather activity, or event outside the control of the parties that eliminates the Event or that reduces attendance at the Event by more than 50% from the prior year's attendance levels, the City Manager is delegated the authority to adjust the billing of City's Direct Costs. A. Direct Costs. City's Direct Costs in assisting with the Event may include, but are not limited to: 1. Damages to City property as a result of the Event, which will be billed at the cost of repair. This includes but is not limited to, damages caused by negligent acts or omissions of the Commission, its employees, volunteers, vendors, contractors, or subcontractors. This includes but is not limited to, damages to the utility infrastructure such as water and/ or irrigation lines or related equipment caused by acts of the Commission, its employees, volunteers, vendors, contractors, or subcontractors. If the sod at the Premises is damaged, Commission agrees to either replace the sod with similar product, or to reimburse the City's costs for sod replacement. Parks Director will provide the Commission's Agent a punchlist of damage to City property defined in the Premises within seven (7) days after the Commission has vacated all City property after the end of the Buc Days. Festival. Commission will restore all items on the punchlist within ten (10) days after receipt of the punchlist. If the Commission fails to restore all items on the punchlist, Parks Page 4 of 29 Director may do so and invoice the Commission for direct costs. Commission shall be responsible to replace any turf damage due to the use for these Events. Commission or its agent must fill and compact all holes in grassy areas made during the Event. Parks Director must approve fill material. 2. Costs of labor contracted for clean up, or additional clean up required by the Directors of relevant City departments, at applicable City rates for the year billed, see Section 22 below. (The Commission will be given the opportunity to hire and work its own clean up crew during and after the Event.) 3. Costs of Police Officers provided for security, crowd control, traffic control, and off -site traffic control, at applicable City rates for the Police Officers assigned. For the 2012 Event, Commission shall be responsible for 100% of all non - police City Direct Costs, 100% of all City health permit/vendor and related fees, and 50% of police overtime. 4. Costs of any other services requested by Commission's Agent and provided by City are Commission's responsibility. City will provide an itemized bill of Direct Costs, if any, within 30 days after the Event closes. Commission will pay City's Direct Costs, if any, as billed within 30 days after City tenders the invoice to Commission, less any amount(s) the Commission has disputed in accordance with the procedure above. B. Notice of Costs. For planning purposes only, attached as Exhibit D are estimates of the rates and costs for City Services that may be provided for the Event. At least 60 days before the Event the Parks Director, Police Chief, and City Traffic Engineer will meet with Commission representatives and execute an Exhibit describing City Services to be provided for the Event and the cost to be paid to City. Commission shall be liable for all actual cost incurred by City related to the Event even if the actual cost exceeds the cost shown in Exhibit D. C. Late Fee. Commission's failure to pay the undisputed charges on City's invoice within 30 days after submittal to Commission shall result in a late payment fee being assessed against Commission. The late payment fee shall be calculated to be 5% of the amount due, as shown on City's invoice, less any disputed amounts, and said fee will be added to the net amount payable to the City. 8. Annual Planning Meetings. Two months prior to this year's Event the Parks Director, Street Director, Police Chief, and City Traffic Engineer will meet with Commission representatives to agree on City Services to be provided and discuss the costs of the City Services for the Event. In addition, Seawall repairs will require that the Premises be reviewed with regard to the areas of set -up, parking, traffic control, barricades, traffic signs, security, fire lanes, and fencing to determine whether the Premises are impacted by the Projects and whether Exhibit A needs to be revised by the Parks Director and Commission. If revised, new Exhibit A will need to be filed with the City Secretary's office. Commission's Agent may request additional meetings. Page 5 of 29 9. Deposit. The Commission must pay a deposit of $2,000 at least one month in advance of the Event, made payable to the City. The deposit will be used to reimburse City for any costs incurred for trash pick up or removal of any structures or repairs to City property. If no costs are incurred and Direct Costs are paid, the deposit will -be returned to the Commission within 30 days after the Event. 10. Notice. Notice may be given by fax, hand delivery, or certified mail, postage prepaid, and is deemed received on the day faxed or hand delivered or on the third day after deposit if sent certified mail. Notice must be sent as follows: If to City: If to Commission: Director of Parks and Recreation Event Manager City of Corpus Christi The Buccaneer Commission, Inc. P.O. Box 9277 P.O. Box 30404 Corpus Christi, TX 78469 -9277 Corpus Christi, TX 78463 -0404 (361) 880 -3461 (361) 884 -8331 or 882 -3242 FAX (361) 880 -3864 FAX (361) 882 -5735 11. Temporary Street Closures (Exhibit C to be attached upon completion of street closure process). The street closure process will govern any necessary street closures. Commission must provide the City Traffic Engineer and the Parks Director its site plan for the Event, application for the requested street closure, and proof of all affected property owners' approval of the proposed temporary street closure in accordance with City ordinance. All street closures on a temporary basis are subject to the requirements of City Ordinances, Sections 49 -15 to 49 -18, as may be amended, and require the City Council to confirm the closures. The decision to confirm the closure of the streets is within the sole discretion of the City Council acting upon the application at the time the application is submitted. 12. Parking. The Commission will provide parking and signage for people with disabilities in close proximity to the entrances of the Event and its related activities defined on the Premises maps. 13. Barricades, Traffic Signs. The Commission must comply with traffic control plan approved by City Traffic Engineer. Street access to Premises may not be blocked or partially blocked without detour signage and alternate street access 14. Signage and Advertising. Commission's Agent may request inflatable advertising only for Events that receive national television exposure which must be pre - approved by the Parks Director prior to being installed. On all advertising for the Event, Lessee shall recognize City's contributions to the Event. 15. Rest Rooms, Drinking Water and First Aid. The Commission must provide adequate portable rest rooms, including restrooms for people with special needs, and drinking water for the public as determined by the Parks Director. A first aid station must also be provided at each site throughout the duration of the Event and its related activities. Page 6 of 29 16. Insurance. Commission's Agent must furnish to the Risk Manager Commercial General Liability insurance for the length of the Event and its related activities protecting against liability to the public. The insurance must have a minimum policy limit of $1,000,000 Combined Single Limit per occurrence for personal injury, death and property damage. Commission is required to provide a $1,000,000 Combined Single Limit Automobile Liability policy, providing coverage for owned, non -owned and hired vehicles. Subcontractors and vendors who will be loading or unloading equipment, temporary structures, carnival rides, stages, bleachers, and any other associated materials to be utilized for the Event must have comparable insurance policies, which most be filed at least 2 weeks prior to each Event. Commission must also furnish insurance in the form of an accident policy for volunteers with minimum limits of $10,000 for death or dismemberment and minimum limits of $5,000 for medical expenses. If alcohol is served at any of the Commission's Events on Premises then liquor liability insurance in the amount of $1,000,000 Combined Single Limit must be provided by the entity serving the alcohol. The City must be named as an Additional Insured on all liability policies. Commission must furnish the Certificates of Insurance in at least the above minimum amounts to the City's Risk Manager two weeks prior to the non- exclusive use period each year. Commission must require all volunteers to sign an accident waiver form that Commission must keep on file. The City Attorney will approve the form. In the Event of accidents of any kind, Commission must furnish the Risk Manager with copies of all reports of the accidents at the same time that the reports are forwarded to any other interested parties. In addition, Commission must provide copies of all insurance policies to the City Attorney upon City Manager's written request. Said insurance must not be canceled, non - renewed or materially changed without 30 days prior written notice to the Parks Director. The Risk Manager may increase the limits of insurance upon two (2) months written notice to Commission. 97. Indemnity. Commission shall indemnify and hold City, its officers, agents and employees ( "Indemnitees ") harmless of, from, and against all claims, demands, actions, damages, losses, costs, liabilities, expenses, and judgments recovered from or asserted against Indemnitees on account of injury or damage to person or property to the extent any damage or injury may be incident to, arise out of, or be caused, either proximately or remotely, wholly or in part, by an act or omission, negligence, or misconduct on the part of the Indemnitees or on the part of Commission or any of its agents, servants, employees, contractors, vendors, patrons, guests, licensees, or invitees ( "lndemnitors ") entering upon City property to set -up and take -down, hold, attend, or participate in the Buccaneer Days Festival and associated activities, with the expressed or implied invitation or permission of Commission, or when any injury or damage is the result, proximate or remote, of the violation by lndemnifees or Indemnitors of Page 7 of 29 any law, ordinance, or governmental order of any kind, or when the injury or damage arise out of, or be caused, either proximately or remotely, wholly or in part, by an act or omission, negligence, or misconduct on the part of the Indemnitors under this Agreement. These terms of indemnification are effective whether the injury or damage may result from the sole negligence, contributory negligence, or concurrent negligence of Indemnitees, and in all cases where Indemnitees' actions are directly related to the Event, but not if the damage or injury results from gross negligence or willful misconduct of Indemnitees. Commission covenants and agrees that if City is made a party to any litigation against Commission or in any litigation commenced by any party, other than Commission relating to this Commission Lease Agreement, Commission shall defend City upon receipt of reasonable notice regarding commencement of the litigation. 18. Safety Hazards. The Commission, upon written notice of identified safety hazards by the Police Chief, Fire Chief, Parks Director or Risk Manager, must correct the safety hazard, within six hours or other time frame included in the written notice of safety hazards. 19. Pavement, Curbs, Sidewalks, Seawall. Any work which involves holes or other changes in any of the Premises including but not limited to, the pavement, curbs, sidewalks, or seawall, requires the prior written approval by City Director of Engineering Services, provided however, that no approval will be given if the work will require subsequent repairs by the City. 20. Permits. A. Commission must require all vendors to obtain and comply with appropriate permits, including permits from the Alcoholic Beverage Commission for the sale of alcohol, from the City for consumption and sale of alcoholic beverages on park land, and must comply with all requirements of the City - County Health Department for the sale of foods and the protection of the public welfare. Commission shall be responsible for payment of all City health permit /vendor and related fees. For example, the temporary food service establishment permit fees established in City Code of Ordinances Section 19 -33. Any vendor that sells alcoholic beverages must furnish proof of Liquor Liability Insurance in the same amounts set out in Section 16. Said Certificate of Insurance must be furnished to the Risk Manager at least two weeks prior to the starting date of the Event annually. Other permits Commission must obtain are Parade Permits for both of the Buccaneer Days Lighted Parade and the Children's Parade, a Temporary Promotional Event Permit from Building Inspection and Fireworks Permits from the Fire Department and any permits required by the Coast Guard for water Events. Commission's Agent shall notify the Parks Director of any special conditions imposed by any permitting agency. Page 8 of 29 B. Fireworks. Commission must apply for a fireworks permit from the Corpus- Christi Fireworks Department. If the permit is granted, and prior to the Fireworks launch, Commission shall require its fireworks vendor to execute a Use Privilege Agreement with the City, with terms and conditions including those listed in the attached Exhibit, and other terms that may be reasonably required by the City Manager or designee. C.Music licenses. Commission is solely responsible for obtaining licenses and permission from copyright owner(s) prior to the performance of music at the Event. 21. Parade Vendors A. Commission or its designee shall have exclusive authority to administer and issue parade vendor permits to permit vending on the public sidewalks along the parade route for the following time periods: (i) For the Buccaneer Days Lighted Parade ( "Lighted Parade "), beginning at a time to be designated by the City Manager, but not later than, 8:00 A.M. the day of the Lighted Parade, during and one (1) hour after the Lighted Parade; (ii) For the Buccaneer Days Junior Parade, ( "Junior Parade "), beginning at a time to be designated by the City Manager, but not later than 6:00 AM the day of the Junior Parade, during and one (1) hour after the Junior Parade. The Lighted Parade and Junior Parade are referred to in this section as "Parade Events." B. Commission shall have the right to determine permit fees for parade vendors that desire to sell items at the Commission's Parade Events. Parade vendor permits shall be issued for the period specified in this section only and the fee therefore shall be one hundred dollars ($100.00) for each vendor and/or vending unit, which fee shall be in lieu of the permit fee established for vendors by the Buc Days Commission. Parade vendor permit fee for Commission Parade Events is $100.00. C. Commission shall ensure that parade vendors comply with applicable sections of the following regulations: Chapter 38 of the City Code of Ordinances, copy, attached as Exhibit E, as may be amended by the City Council. D. Commission shall further ensure that no parade vendor sells the following items identified by the Police Chief: silly string, or any similar squirting device; poppers or any similar noise device; stink bombs or smoke bombs, or any similar device; or lasers or any similar laser producing device. E. Violations of the City Code of Ordinances shall subject the parade vendor to issuance of citation by City Police Department. F. Commission shall ensure that all food and beverage vendors comply with all requirements of the Corpus Christi - Nueces County Public Health Department and all other local, State or Federal laws, rules, and regulations regarding the sale and storage of food. Page 9 of 29 G. Commission shall ensure that all parade vendors comply with all applicable Federal, State, and local laws and regulations, as may be amended. H. Commission desires to place stationary vending booths along the parade route on real property owned by the City of Corpus Christi during Parade Events. The Commission may place a vending booth at a specific location that has been reviewed and approved in writing by the City Manager or designee, the Chief of Police or designee, the Fire Chief or designee, the Director of Engineering Services or designee, the Traffic Engineer or designee, the Parks Director or designee, and the Director of Solid Waste or designee. Stationary vending booths at City- approved locations may be placed no earlier than 48 hours prior to the start of a Parade Event, and must be removed no later than 24 hours after the conclusion of a Parade Event. J. Commission shall restore all property used for placement of vending booths to its original condition within 24 hours of the conclusion of a Parade Event, K. Commission shall promptly remove or relocate booths at Commission's sole expense if deemed necessary by the City Manager or designee for repair to City or other public utilities, or for protection of public health and safety. L. Commission shall obtain all necessary permits prior to the placement of vending booths at City - approved locations. M. No alcoholic beverages may be sold by a parade vendor. N. Commission shall require all food and beverage parade vendors to clean the area around each food and beverage booth. The clean up will be hourly and immediately after the conclusion of a Parade Event. All trash cleaned up must be properly deposited in a trash bag provided by the Commission and taken to a location designated by the Commission. 21.1 Parade Viewing Area Permits For City Property Along Parade Route For Rental to General Public A. Commission or its designee shall have exclusive authority to administer and issue parade viewing area permits to Commission or to nonprofit groups to allow Commission or groups to rent City property, designated by Parks Director, to the general public along the following portion of the parade route and for the following time periods: (1) Along the Buccaneer Days Lighted Parade route between Coopers Alley and Park Avenue on Shoreline, from the start of the parade until the end of the parade. B. Commission shall have the right to determine reasonable fees for the nonprofit groups to rent space in the parade viewing area to the general public. Commission and the nonprofit groups shall split these fees. Page 10 of 29 C. Commission shall require the nonprofit groups to clean the parade viewing area. The clean up will be hourly and immediately after the conclusion of a Parade Event. All trash cleaned up must be properly deposited in a trash bag provided by the Commission and taken to a location designated by the Commission. D. Commission shall restore all City property used for parade viewing to its original condition within 24 hours of the conclusion of a Parade Event. 22. Clean Up. Commission must require all food and beverage vendors to clean a designated zone adjacent to their respective booths at regularly scheduled intervals. Commission may designate the zone, but it will not be less than 10 feet by 20 feet in the immediate area around each food and beverage booth. The clean up will be hourly and immediately after closing the Event each day. All trash cleaned up must be properly deposited in a trash bag provided by the Commission and taken to a location designated by the Commission. Commission may hire and work its own clean up crew during and after the Event. If the Parks Director determines that additional clean up is necessary, Parks Director will give Commission's Agent 2 hours notice to increase services; and if it is still unsatisfactory, Parks Director may authorize use of City workers. Commission must install screens, approved by City Director of Storm Water Operations or designee, across all storm water inlets along Shoreline and within any closed streets within the Premises. Drainage must not be blocked. Commission must remove the screens within the non - exclusive use period after the close of the Event. However, Commission must remove screens (along with any trash that has accumulated over the screens) immediately if heavy rain is imminent, or upon the direction of the City Director of Storm Water Operations or her designee. 23. Construction. The construction work for displays and stages must be conducted in accordance with City building codes and restrictions. Construction that causes damages will only be allowed if Commission provides the Parks Director prior written assurances that Commission will remedy said damages in accordance with Section 7 above and Parks Director approves the construction in writing. 24. Temporary Buildings. Commission must receive prior written approval from the Parks Director to place any temporary buildings on the grounds of the Premises. Otherwise, all temporary buildings moved onto Premises for the Event must be placed and remain on trailers to promote expeditious removal. All these buildings must be removed within the non - exclusive use time period. 25. Electrical & Water Services. City does not provide electrical service on the Premises. A Temporary Promotional Event Permit from the City Building Inspection Department is required in order to install electrical service for the Event. Further, a Certificate of Occupancy, which involves inspections, must be completed by the proper inspector, to have all temporary services, such as, food, electrical, plumbing, tents, and structures, inspected. It is the responsibility of the Commission to call each inspector for an appointment to inspect and get approval for each temporary service before the Event begins. Parks Director will provide access to water from park water facilities. Page 11 of 29 26. Permissible Vendor Location Markings. No or semi - permanent markings will be permitted which in any way obliterate or deface any pavement markings or signs heretofore existing for the guidance of motor vehicles or pedestrians. Chalk markings may be used to pre -mark locations on the sidewalk or street. (Painted markings of any type will only be permitted in grassy areas). 27. Dispute Resolution, City and the Commission agree that any disputes which may arise between them concerning this Lease Agreement, such as determining the amount of damage to City property occurring as a result of the Event, or regarding an invoiced amount, will be submitted for determination and resolution, first to the Parks Director, with a right to appeal to the City Manager. The decision of the City Manager will be final, unless that decision is appealed to the City Council by giving written notice of appeal to the City Secretary within ten (10) days after the written decision of the City Manager has been sent to the Commission. In the Event of appeal, the decision of the City Council will be final. Upon a resolution of the dispute, either by agreement of the parties or as the result of an appeal, the disputed amount will be considered due and payable to the City within ten (10) calendar days of the resolution. This Lease Agreement in no way waives the Commission's rights to seek other legal remedies during the appeals process. 28. Emergency Vehicle Lanes. Commission must at all times maintain emergency vehicle lanes upon the Premises as may be designated by City Fire Chief. These lanes must be kept clear of all obstructions. 29. Assignment. Commission may not assign or transfer this Lease Agreement nor sublease the whole or any part of the Premises or make any alteration therein without the prior written consent of the City. 30. Breach, Termination. Any failure on the part of Commission to perform any of the covenants contained in this Lease Agreement, or any breach of any covenant or condition by Commission entitles City to terminate this Lease Agreement without notice or demand of any kind, not withstanding any license issued by City and no forbearance by City of any prior breach by Commission is a waiver by or estoppel against City. In case of termination City is entitled to retain any sums of money theretofore paid by Commission and the sums inure to the benefit of City as a set -off against any debt or liability of Commission to City otherwise accrued by breach hereof. 31. Right of Commission to Use Public Streets. Commission acknowledges that the control and use of public streets is declared to be inalienable by the City and except for the use privilege granted herein, this Lease Agreement does not confer any right, title, or interest in the public property described herein. The privilege to use the City property granted herein is subject to the approval of the City Council as required by ordinance and the compliance by Commission with the terms and conditions contained within this Lease Agreement. 32, Not Partnership or Joint Venture. This Lease Agreement may not be construed or deemed by the parties hereto as a partnership, joint venture, or other relationship that requires the City to cosponsor or incur any liability, expense, or responsibility for the Page 12 of 29 conduct of the Event or associated activities. Payments received from Commission by the City are compensation for provision of City services as described herein and for the right of Commission to use public property for the limited purpose described herein. 33. City Services Subject to Appropriation. The Commission recognizes that the services provided by the City pursuant to this Lease Agreement are subject to the City's annual budget approval and appropriation. The continuation of any contract after the close of any fiscal year of the City, which fiscal year ends on July 31 of each year, is subject to appropriations and budget approval. The City does not represent that the expenditures required by the City for the provision of services required by this Lease Agreement will be adopted by future City Councils, said determination being within the sole discretion of the City Council at the time of adoption of each fiscal year budget. 34. Compliance with Laws. Commission must comply with all applicable federal, state, and local laws and regulations, including without limitation compliance with Americans with Disabilities Act requirements, all at Commission's sole expense and cost. 35. Non - discrimination. Commission warrants that they are and will continue to be an Equal Opportunity Employer and hereby covenants that no employee, participant, invitee, or spectator will be discriminated against because of race, creed, sex, handicap, color, or national origin. 36. Fence. Commission may provide a temporary six -'Foot (6') chain link fence, with gates for access, upon prior approval of the Parks Director. The fence will help improve security, crowd control, litter control, and keep bicycles, skateboards, animals, and personal coolers out of the Event area. Exhibit A may be revised to enlarge or decrease the fenced area in accordance with the Commission's needs upon Parks Director's concurrence. If Exhibit A is revised, new Exhibit A will be filed with the City Secretary and supersede the existing Exhibit. The new Exhibit A becomes effective upon filing with the City Secretary. 37. Admission Fee. Commission may charge an admission fee. Special Events connected with Commission may charge another fee to help defray the cost of entertainment. 38. Security. Commission must provide uniformed Security Officers during the Event, and after the Event closes each night until it opens the next day. Commission will assign the Security Officers duties. Security Officer means sworn peace officers directly paid by Commission. Provided, however, the Police Chief may determine that a security guard service will provide adequate security for the Event, or portions of the Event. If the Police Chief allows a security guard service to provide security, the term "security officer" will include a licensed security guard as well as a sworn peace officer. If the City Police Chief determines it is necessary, the Police Chief will assign Police Officers to provide off -site crowd and traffic control for the Event as needed and include costs of police officers in the Direct Costs per Section 7 above. The Police Officers will be assigned duty stations by the Police Chief, or designee. Page 13 of 29 39, Entirety Clause. This Lease Agreement and the incorporated and attached Exhibits constitute the entire Lease Agreement between the City and Commission for the use granted. All other Lease Agreements, promises, and representations, unless contained in the Lease Agreement, are expressly revoked, as the parties intend to provide for a complete understanding within the provisions of this Lease Agreement and its Exhibits, of the terms, conditions, promises, and covenants relating to Commission's operations and the Premises to be used in the operations. The unenforceability, invalidity, or illegality of any provision of the Lease Agreement does not render the other provisions unenforceable, invalid, or illegal. Executed in Duplicate Originals on `����'-� , 2012. ATTEST: Armando Chapa City Secretary CITY OF CORPUS CJRRISTI Ronald L. Olson City Manager Legal Form Approved 'tip I , 2012 Lisa Aguilar Assistant City torney For City Attorney THE BU eA �R C N, INC. By. Bar 13ox, > ecu ' e ire or Date: 4 o..Migq„Myv� Sy COUNCIL ✓ Z 1 Z sl r, rAPY S. CHAPARREL ST. . E Pirates of all sizes and ages are invited to join the fun at the Buc Days IBC Bank Junior Parade. it's time to heave ho, ye landlubber, and come join the !Pirate Fiesta! Come and join the 20,000+ spectators along the Junior Parade. Route to watch these young pirates from daycare centers, youth groups, schools, civic, public, and private organizations "strut their stuff" in this wonderful children's parade. &tn K01 � 1), McCaughan 3 Park shoreline Blvd- M v a S: Water St. Q cc CO 0. U. � r 0 4 3 m m m � oti Blvd• . U - 13.5horeline � ly. ghorelin in in ` rn N. Water St �. S ' sh orelr' Oce an Dr _o . Bayfront Science American Bank y I ,m W N ' 0 teY.St o n° c N. Chaparral St. m water Park. Center V.1 m ¢ o a s t• 3 Corpus: Christi k ,at St. Chat a N. Mesquite St. m Q m m r Museum of Science. i St $History t4. St. r C? 1c 35 NeSquite Lower Broadway rn N. Upper Broadway 35 } m r o 3 m Z &tn K01 � 1), McCaughan 3 Park shoreline Blvd- M v a S: Water St. Q cc CO 0. U. 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CO v a Zi o. e lm y N � o zr Lily St. Page 16 of 29 EXHIBIT B 2012 Lease Agreement Event Locations, Dates & Summary Buc Days Carnival Scheduled for April 26, 2012 through May 6, 2012 Along Shoreline from parking lot south of former Memorial Coliseum site to park bounded by Kinney Street at Shoreline, excluding Sherill Park. Exclusive use on: April 23, 2012 through May 8, 2012 Buc BBQ Cook Off Scheduled for: April 13 -14, 2012 To be located on parking lot north of former Memorial Coliseum site Exclusive Use on: April 12, 2012 through April 16, 2012 Buc Days Fireworks Scheduled for April 27, 2012 To be shot from McGee Beach Exclusive use on: April 27, 2012 Buc Days Pro Rodeo American Bank Center Arena (Commission shall contract directly with third party arena management company for use of American Bank Center Area.) Page 17 of 29 EXHIBIT C — STREET CLOSURE Page 18 of 29 BUC DAYS 2012 EXHIBIT D — ESTIMATED EXPENSES* Park & Recreation (credit account 343697- 1020- 12910): $2,000.00 Police (overtime at 50% of cost Carnival costs estimate $37,000 in 2012 $14,500.00 Solid Waste and Street Services (credit account 30933- 1020- 12510)(Street) $3,500.00 (credit account 344120 - 1020- 12350)(Solid Waste) 0.00 Storm Water (credit account 36006- 4010 - 32010) $1,960.25 TOTAL: $ 21,960.25 *Commission may or may not use all services estimated on this sheet. There may be additional services requested by Commission which may require a revised estimate. These estimates do not include costs of emergency calls. Actual costs for emergency calls will be billed directly to and paid by Commission. Page 19 of 29 EXHIBIT E PARADE VENDOR REQUIREMENTS Sec. 38 -6. Permit application; information required. Every application for a permit required by this chapter shall contain the following: (1) The name of the applicant and, if applicable, a certified copy of any assumed name certificate and/or corporate or other legal organization charter of record, together with proof of the individual's authority to act in behalf of such entity. (2) The business address and phone number of the applicant. (3) The name, home address and phone number of any individuals who will engage in the business operations in the city. (4) A description of the type of goods or services to be offered for sale or rental. (5) A description of the proposed location of the business for which the permit application is filed, including proposed routes for mobile street vendors, which shall show compliance with all site regulations of this article. (6) The license number of any motor vehicle to be used in the operation of the business in the city. (7) a. An identification card no larger than three (3) inches by three (3) inches, displaying a photograph (or together with an additional photograph identification card, such as a current driver's license to be used with the identification card - required hereby) for each individual representative of the applicant who will be engaged in the business for which application for a permit is made. The identification card required hereby shall contain the name of the individual representative, the permanent residence address of the individual representative, the local address and phone number, if any, of the individual representative, and the name and address of the applicant as shown on the application for a permit. b. For purposes of this article, every individual who conducts business for an applicant is a representative of such applicant whether acting as employee, agent, independent contractor, franchisee or otherwise for other business purposes, and the applicant shall for all purposes under this article be responsible for compliance with this article by every such individual representative. (8) A description and photograph or drawing with construction plans and specifications of any vending unit to be used in the business for which the permit application is filed. (9) Proof of a general comprehensive business liability insurance policy, issued by an insurance company authorized to do business in the State of Texas, protecting and indemnifying the applicant and the city from all claims for damages to property and for Page 20 of 29 bodily injury, including death, which may arise from operations under or in connection with the requested permit. Such insurance shall name the city as an additional insured, shall provide that no termination or cancellation will be effective without prior written notice to the city, and shall provide liability protection in the following minimum amounts: One hundred thousand dollars ($100,000.00) per person and three hundred thousand dollars ($300,000.00) per occurrence for bodily injury and fifty thousand dollars ($50,000.00) per occurrence for property damage. An indemnity agreement protecting and indemnifying the city against all such claims may be substituted for the insurance policy herein required in the case of parade vendor permits valid only for such parade event and issued under the provisions of section 38 -17(b) of this article. (10) Proof of state sales tax certificate, if applicable, and compliance with all other applicable state and federal requirements for the particular business for which a permit is requested. (Ord. No. 18788, § 1, 4 -9 -1985) Sec. 38 -7. Health permits required for food and beverage businesses. No permit authorized to be issued under this article shall be issued to any person for the purpose of selling or offering for sale any food or beverage unless the applicant shall have first obtained all health permits, certificates and inspections required by the city health code for the particular type of business for which the permit is requested. (Ord. No. 18788, § 1, 4 -9 -1985) Sec. 38 -17. Sidewalk vendors; special regulations. No permit shall be issued to any vendor to operate his business and no vendor shall vend upon any public sidewalk in the city except as follows: (b) Parade vending. (1) Vendors may be permitted along parade routes during and for four (4) hours prior to and one (1) hour after any parade held under authority of a permit issued pursuant to the City Code, subject to the following restrictions and regulations in addition to other conditions imposed upon vendors by this article: a. The police chief shall determine whether the vending would be consistent with the public safety. In protecting public safety, the chief may refuse to grant a permit, or may grant a permit limiting the vending to particular areas, limiting the items to be sold or rented, limiting the time for vending, or imposing other restrictions. In making his Page 21 of 29 determination the chief shall consider, based upon past parade experience and law enforcement experience, the potential for interference with traffic; misuse of items to be sold or rented; physical injury; interference with parade participants, parade watchers, police officers and others; and other effects detrimental to safety. b. Vendors shall comply with all pertinent restrictions and regulations applicable to sidewalk vendors under subsection (a) of this section. d. Vendors shall be restricted in their location to sidewalks and other public areas, except streets, immediately adjacent to and within six hundred (600) feet of the parade route and to private premises immediately adjacent to and within six hundred (600) feet of parade routes. Such private premises shall be owned by the vendor or used by him with the expressed permission of the owner. Such permission shall be evidenced by written affidavit filed with the permitting officer prior to the issuance of a permit under this subsection. e. Applications for parade vendor permits must be completed and filed at least two (2) days prior to the scheduled parade date. (2) The city may allow parade organizers to administer the parade vending process by separate agreement. (Ord. No. 18788, § 1, 4 -9 -1985; Ord. No. 21600, § 1, 3 -16 -1993; Ord. No. 025666, § 1, 3- 2 -2004) Page 22 of 29 2012 Mr. Barry Box, Executive Director Buccaneer Commission, Inc. P. O. Box 30404 Corpus Christi, Texas 78401 -0401 Dear Mr. Box: In accordance with the Buc Days Short Term2012 Lease Agreement authorized by the City Council, this letter is to confirm that Buccaneer Commission, Inc has exclusive authority to administer and issue parade vendor permits for the Commission's 2012 parade events. The Buccaneer Commission, Inc. is also authorized to establish parade vendor permit fees for the Commission's parade events. Sincerely, Ronald L. Olson City Manager Page 23 of 29 Exhibit F THE STATE OF TEXAS § COUNTY OF NUECES § USE PRIVILEGE AGREEMENT This Use Privilege Agreement ( "Agreement ") is made this day of , 2012, between the City of Corpus Christi ( "City "), a Texas home rule municipal corporation, acting through its duly authorized City Manager, and Western Enterprises, Inc. ( "Permittee "), acting through , its duly authorized officer. 1. The City is the owner of the following described real property ( "Property "): McGee Beach. A description of the Property and site map are attached to and incorporated into this agreement as Exhibit 1. 2. The Permittee desires to use McGee Beach for the purpose of staging a fireworks display in conjunction with the 2012 Buc Days. The Permittee has submitted an application to the Corpus Christi Fire Department for a fireworks permit. A listing of products to be fired from the Property is found on the attached and incorporated Permit Application as Exhibit 2. 3. In consideration of applicable City permit fees, payable upon execution of this Agreement, and Permittee's covenants expressed in this Agreement, the City grants Permittee, under the conditions stated in paragraph 4 of this Agreement, the use of the Property, described in Exhibit 1 for the purposes stated in paragraph 2 of this Agreement, starting on and terminating on ; however, such use is conditioned upon Permittee obtaining the proper permit from the Corpus Christi Fire Department. The City Manager is authorized to extend the term of this Use Privilege Agreement in the event the fireworks is cancelled due to weather conditions. 4. Permittee's use of the property is subject to the following conditions: A. This Agreement may be revoked at any time with or without without cause by the City of Corpus Christi's City Manager, or the City Manager's designee ( "City Manager "), giving the Permittee in writing notice of the revocation of this agreement. B. Permittee may not assign this Agreement without the City Manager's prior written consent. C. Permittee must submit a detailed description of its planned use of the Property; - - - — - including drawings showing the specific location where the equipment identified in Paragraph 2 will be installed and specifications for the fireworks that will be used, to the City's Fire Marshall and City Manager. Permittee must submit a detailed safety plan for Page 24 of 29 review and approval by the Corpus Christi Fire Marshall, at least 15 business days prior to the fireworks event.. D. INDEMNIFICATION. Permittee, its Officers, Members, Partners, Employees, Agents, Contractors and Licensees (hereinafter called "Permittee" for purposes of this subparagraph) shall fully indemnify, save and hold harmless the City of Corpus Christi, its Officers, Employees, Agents, Licensees, and Invitees ( "Idemnitees ") against: (1) any and all damages, including but not limited to loss of use, damage to property or injuries to or death of any person or persons (including but not limited to property and officers, employees, agents, licensees and invitees of and (2) any and all claims, demands, suits, actions, liabilities, costs, expenses (including but not limited to reasonable attorney fees, expert witness fees and all associated defense fees), causes of action, or other legal, equitable or administrative proceedings of any kind or nature whatsoever, of or by anyone whomsoever, regardless of the legal theory(ies) upon which premised, including but not limited to contract, tort, express and/or implied warranty, strict liability, and worker's compensation, in any way resulting from, connected with, or arising out of, directly, Permittee's operations or performance, or its use or occupancy of real or personal property pursuant to this Agreement, including actions or omissions of consultants, and acts or omissions of .the officers, members, partners, employees, agents, contractors or licensees of Permittee or its consultants; provided however, that Permittee need not indemnify City of Corpus Christi or its officers, employees, agents, licensees, and invitees from damages proximately caused by and apportioned to the sole negligence of City of Corpus Christi officers, employees, agents, licensees and invitees. Insurance coverage requirements specified herein shall in no way lessen or limit the liability of Permittee under the terms of this indemnification obligation. Permittee shall obtain, at its own expense, any additional insurance that it deems necessary for City of Corpus Christi's protection in the performance of this Agreement. This defense and indemnification obligation shall survive the expiration or termination of this Agreement. E. Permittee must acquire and maintain commercial general liability insurance pertaining to the use of the Property-and the any activities related to the use of the property authorized by this Agreement, in the minimum amounts of insurance shown in attached Insurance Exhibit which is the attached to and incorporated into this Agreement. The insurance policies must show the City as a named additional insured. Upon City Manager's written request, Permittee shall provide copies of all insurance policies to the City's Risk Manager. Unless the City's Risk Manager is given 30 days advance written notice, the policies shall be renewed (or replaced with comparable replacement policies) and may not be canceled or materially changed. F. Any equipment placed by Permittee must be removed by the Permittee and the Property restored to its original condition before this Agreement expires. Page 25 of 29 G. If City needs access to the Property, Permittee must pay for removing or relocating any improvements or equipment, to allow access to the Property. H. Permittee may not close or barricade a public street, or any portion of the public street until the Permittee or his contractor has filed an approved traffic control plan with City's Traffic Engineering Office. E. Permittee must pay to maintain or repair the Property being used at all times, regardless of the type of damage that may occur, within 24 hours of notice of damage to Permittee. Permittee agrees to pay City Consultant to document the roof membrane condition before the fireworks event, and after the fireworks event. J. Permittee must comply with all applicable Federal, State, and local laws and regulations, as may be amended. Permittee must obtain City fireworks permit from Corpus Christi Fire Department prior to event. K. Permittee must not begin use of the Property without 24 hours prior notice to the Corpus Christi Fire Marshal. L. If damage occurs to any City property, all City's costs (labor and materials) associated with the repairs must be paid by the Permittee within 30 days of City Manager's invoice thereof. City's representatives will determine the extent of damage and amount of repairs. M. Permittee must not store or leave any equipment or material in City property unattended or overnight. N. The Permittee must provide proper safety and security devices to prevent possible injuries or accidents. The Permittee must provide Fire Marshal with safety plan for review and approval by the Fire Marshal. O. The Property must be maintained in neat and orderly fashion without visible trash, paper and other unsightly debris. 5. All references herein to Permittee include Permittee's contractor(s), agent(s), and employee(s) if applicable. 6. Choice of Law and Venue: This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas. Venue for any dispute arising from or related to this Agreement shall be in Nueces County, Texas. This Agreement takes effect upon date of last signature. ATTEST: CITY OF CORPUS CHRISTI Page 26 of 29 Armando Chapa Ronald L. Olson City Secretary City Manager Date: APPROVED AS TO LEGAL FORM. By: Assistant City Attorney Western Enterprises, Inc., the Permittee, agrees to keep and perform the conditions and be bound by all of the terms imposed by the Use Privilege Agreement. Permittee: Western Enterprises, Inc. By: Name: Title: THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on , 2012, by , Chief Executive Officer, on behalf of Western Enterprises, Inc. Notary Public, State of Texas Expiration Date: Page 27 of 29 EXHIBIT 3 - INSURANCE REQUIREMENTS FOR FIREWORKS EVENT I. PERMITTEE'S LIABILITY INSURANCE A. Permittee must not commence work under this agreement until all insurance required herein has been obtained and such insurance has been approved by the City. Permittee must not allow any subcontractor to commence work until all similar insurance required of the subcontractor has been obtained. B. Permittee must furnish to the City's Risk Manager, two (2) copies of Certificates of Insurance with applicable policy endorsements, showing the following minimum coverage by insurance company(s) acceptable to the City's Risk Manager. The City of Corpus Christi must be named as an additional insured for the General Liability policy and a blanket waiver of subrogation in favor of the City of Corpus Christi is required on the General Liability and WC policies. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30 day written notice of cancellation is required Bodily Injury and Property Damage on insurance certificates or by policy endorsements Per occurrence aggregate COMMERCIAL GENERAL LIABILITY including: $1,000,000 COMBINED SINGLE LIMIT with $500,000 sub -limit for Damage to Rented 1. Commercial Form Premises 2. Premises — Operations 3. Products/ Completed Operations Hazard 4. Contractual Liability 5. Broad Form Property Damage 6. Independent Contractors 7. Hostile Fire Exception WORKERS' COMPENSATION WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION ACT AND SECTION II OF THIS EXHIBIT EMPLOYERS' LIABILITY $1,000/ $1,000,000 / $1,000,000 Page 28 of 29 C. In the event of accidents of any kind related to this agreement, Permittee must furnish the Risk Manager with copies of all reports of such accidents within 10 days of any accident. I. ADDITIONAL REQUIREMENTS A. Permittee must obtain workers' compensation coverage through a licensed insurancecompany 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. Permittee's financial integrity is of interest to the City; therefore, subject to Permittees right to maintain reasonable deductibles in such amounts as are approved by the City, Permittee shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Permittee'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- VI I. C. The 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 the 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). Permittee 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. Permittee 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. Permittee agrees that with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: Name the 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 the City, with the exception of the workers' compensation policies; Provide for an endorsement that the "other insurance" clause shall not apply to the City of Corpus Christi where the City is an additional insured shown on the policy; Page 29 of 29 • Workers' compensation and employers' liability policies will provide a waiver of subrogation in favor of the 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, Successful Bidder shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Permittee'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 agreement. F. In addition to any other remedies the City may have upon Permittee's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Permittee to stop work hereunder, and/or withhold any payment(s) which become due to Permittee hereunder until Permittee demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which Permittee may be held responsible for payments of damages to persons or property resulting from Permittee's or its subcontractor's performance of the work covered under this agreement. H. It is agreed that Permittee's insurance shall be deemed primary and non- contributory with respect to any insurance or self insurance carried by the City of Corpus Christi for liability arising out of operations under this agreement. It is understood and agreed that the insurance required is in addition to and separate from any other obligation contained in this agreement. 2012 Buc Days Fireworks Permit ins. req. 2 -20 -12 Bp Risk Mgmt.