HomeMy WebLinkAboutC2012-435 - 12/18/2012 - NAConstruction And Donation of HEB, Tennis Center Improvements
THIS AGREEMENT RELATING TO 'CONSTRUCTION AND DONATION OF HEB
Tennis Center IMPROVEMENTS ( "Agreement ") is made and entered into
by and between the CITY OF CORPUS CHRISTI, TEXAS, a municipal
corporation ( "CITY ") and Corpus Christi Tennis Association,
(
I.
Term
This Agreement shall commence on the date of last signature and
continue until improvements described herein are accepted by the
City Director of Parks and Recreation. This Agreement may be
terminated at any time by the City upon thirty days prior written
notice.
II.
Improvements
CCTA during the term of this Agreement shall construct the HEB
Tennis Center Improvements. A description of the HEB Tennis
Center Improvements is attached as Exhibit A. CCTA may complete
any or all of the specific projects listed on Exhibit A, subject
to receipt of funds. Prior to commencing any work, CCTA shall
coordinate with City Director of Parks and Recreation to verify
that CCTA has sufficient funds on hand to complete the specific
projects.
III.
Construction of Improvements
A. When constructing the HEB Tennis Center Improvements, CCTA
shall ensure that the plans and specifications shall be
prepared by state - licensed architects or engineers. The
plans and specifications are subject to prior written
approval of the City Director of Engineering and City
Director of Parks and Recreation.
B. CCTA shall require the contractors who are awarded contracts
for construction of the HEB Tennis Center Improvements to
furnish the following bonds by surety companies authorized
to do business in Texas:
1. Payment Bond - A payment bond in the amount of One
Hundred Percent (100 %) of the contract shall be
furnished for the protection of all persons, firms and
corporations who may furnish materials or perform
labor. The payment bond shall be made with CITY as an
Obligee. However, this requirement does not apply if
2012 -435
12/18/12
CC Tennis Association
lNDEXEC
the amount of the construction contract is $25,000 or
less.
2. Performance Bond - A performance bond in the amount of
One Hundred Percent (1000) of the Contract shall be
furnished covering the faithful performance of the
contract. The performance bond shall be made with CITY
as an Obligee However, this requirement does not
apply if the amount of the construction contract is
$100,000 or less.
C. Except as otherwise specified herein, CCTA shall include in
all CCTA construction agreements for the HEB Tennis Center
Improvements, the following provision:
Contractor does hereby agree to waive all claims,
release, indemnify, defend and hold harmless CITY and
all of its officials, officers, agents and employees,
in both their public and private capacities, from and
against any and all liability, claims, losses, damages,
suits, demands or causes of action including all
expenses of litigation and /or settlement, court costs
and attorney fees which may arise by reason of injury
to or death of any person or for loss of, damage to, or
loss of use of any property occasioned by error,
omission, or negligent act of Contractor, its officers,
agents, employees, subcontractors, invitees or any
other person, arising out of or in connection with the
performance of this agreement, and Contractor shall at
his or her own cost and expense defend and protect the
City of Corpus Christi from any and all such claims and
demands.
D. Except as otherwise specified herein, CCTA shall also
require the contractors, in all CCTA construction agreements
for the HEB Tennis Center Improvements to furnish insurance
in such amounts as specified on attached Exhibit B.
E. CCTA agrees that all work performed shall be done 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. CCTA shall discharge all obligations to contractors,
subcontractors, materialmen, workmen and /or other persons
for all work performed and for materials furnished for or on
(2)
account of CCTA as such obligations mature. CCTA 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 HEB Tennis Center 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 HEB Tennis Center Improvements thereon, and CCTA will
discharge any such lien within thirty (30) days after notice
of filing thereof.
G. CCTA 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, CCTA 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 HEB Tennis Center
Improvements shall be completed within three (3) months from
date of this Agreement.
J. Before executing a contract for construction services CCTA
shall submit the construction contract form to the City for
review and approval, which the City may not unreasonably
withhold.
K. CCTA agrees that all work performed under this Agreement by
CCTA or the contractor is subject to review and approval by
the City of Corpus Christi (City), by and through its City
Engineer or designee and /or its Director of Parks and
Recreation or designee. However, such approval shall relieve
neither CCTA nor its contractor of or otherwise diminish
their obligations under this Agreement or the construction
contract.
L. CCTA shall include in its construction contract the
following provisions:
Definitions
Owner means the City of Corpus Christi (City).
City Engineer means the City's Director of
Engineering Services.
(3)
Director means the City's Director of Parks and
Recreation or designee.
Contract Documents means the documents, including
the plans and specifications, that make up the
agreement between CCTA and the construction
contractor.
Contractor means the entity and party to this
contract with CCTA, contracted hereunder to
perform the construction services for Improvements
to the HEB Tennis Center.
City's Review and Approval of Construction Services and
Acceptance of the Work
CCTA's Authorized Representative - City Engineer
The City Engineer or designee is authorized as
CCTA's representative during the construction
period, to act on behalf of CCTA in managing or
administering the Contract.
Visits to Site
City Engineer or designee, as well as Director or
designee, will make visits to the Site at
intervals appropriate to the various stages of
construction, as they deem necessary in order to
observe as an experienced and qualified
professional of the City and Owner of the
Improvements the progress that has been made and
the quality of the various aspects of Contractor's
executed Work. Based on information obtained
during such visits and observations, City
Engineer, for the benefit of CCTA and City, will
endeavor to determine, in general, if the Work is
proceeding in accordance with the Contract
Documents. City Engineer will not be required to
make exhaustive or continuous on -site inspections
to check the quality or quantity of the Work. One
purpose of the City Engineer and Director's
efforts will be providing CCTA and the City a
greater degree of confidence that the completed
Work will conform generally to the Contract
Documents.
(4)
City Engineer or designee and Director or designee
is fully authorized to supervise and direct
Contractor.
Project Representative
City Engineer and Director may also furnish one or
more Project Manager(s) to assist the City and
Director in providing more continuous observation
of the Work.
Authorized Variations in Work
City Engineer or designee may authorize any
variations in the Work from the requirements of
the Contract Documents compatible with the design
concept of the completed Project as a functioning
whole as indicated by the Contract Documents.
These may be accomplished by a Field Order or
Change Order and will be binding on CCTA and also
on Contractor, who shall perform the Work involved
promptly.
Rejecting Defective Work
City Engineer or his designee will have authority
to reject Work which City.Engineer believes to be
defective, or that City Engineer believes will not
produce a completed Project that conforms to the
Contract Documents or that will prejudice the
integrity of the design concept of the. completed
Project as a functioning whole as indicated by the
Contract Documents.
City Engineer will have authority to require
special inspection or testing of the Work, whether
or not the Work is fabricated, installed, or
completed.
Uncovering Work
City Engineer has a right to require and direct
Contractor to uncover any part of the Work for
inspection._If any Work is covered contrary to the
written request of City Engineer, it must, if
requested by City Engineer, be uncovered for City
Engineer's observation and replaced at
Contractor's expense.
If City Engineer considers it necessary or
advisable that covered Work be observed' by
(5)
Engineer or inspected or tested by others,
Contractor, at City Engineer's request, shall
uncover, expose, or otherwise make available for
observation, inspection, or testing as Engineer
may require, that portion of the Work in question,
furnishing all necessary labor, material, and
equipment.
If it is found that the uncovered Work is
defective, Contractor shall pay all claims, costs,
losses, and damages (including but not limited to
all fees and charges of engineers, architects,
attorneys; and other professionals and all court
or arbitration or other dispute resolution costs)
arising out of or relating to such uncovering,
exposure, observation, inspection, and testing,
and of satisfactory replacement or reconstruction
(including but not limited to all costs of repair
or replacement of work of others); and CCTA shall
be entitled to an appropriate decrease in the
Contract Amount.
City Engineer May Stop the Work
If the Work is defective, or Contractor fails to
supply sufficient skilled workers or suitable
materials or equipment, or fails to perform the
Work in such a way that the completed Work will
conform to the Contract Documents, City Engineer
may order Contractor to stop the Work, or any
portion thereof, until the cause for such order
has been eliminated; however, this right of City
Engineer to stop the Work shall not give rise to
any duty on the part of City Engineer to exercise
this right for the benefit of Contractor, any
Subcontractor, any Supplier, any other individual
or entity, or any surety for, or employee or agent
of any of them.
Correction or Removal of Defective Work
Promptly after receipt of written notice,
Contractor shall correct all defective Work,
whether or not fabricated, installed, or
completed, or, if the Work has been rejected by
City Engineer, remove it from the Project and
replace it with Work that is not defective.
Contractor shall pay all claims, costs, losses,
and damages (including but not limited to all fees
and charges of engineers, architects, attorneys,
and other professionals and all court or
arbitration or other dispute resolution costs)
arising out of or relating to. such correction or
removal (including but not limited to all costs of
repair or replacement of work of others).
When correcting defective Work, Contractor shall
take no action that would void or otherwise impair
Owner's special warranty and guarantee, if any, on
said Work.
Acceptance of the Work
City Engineer shall have authority to accept the
Work that conforms to the Contract Documents.
IV.
Cost of HEB Tennis Center Improvements
The complete cost of developing all necessary plans and
specifications, as provided in this Agreement,. and the cost of
construction of the HEB Tennis Center Improvements by CCTA shall
be borne solely by CCTA and be at no expense to CITY whatsoever.
CCTA shall pay all taxes, special assessments, or levies, if any,
assessed during the term against or relating to the HEB Tennis
Center Improvements on CITY's property, including ad valorem
taxes pursuant to the Texas Property Tax Code, until such time as
ownership of such HEB Tennis Center Improvements is transferred
to the CITY.
V.
Ownership of HEB Tennis Center Improvements
Upon completion of the HEB Tennis Center Improvements, it is
CCTA's desire to donate the HEB Tennis Center Improvements to
CITY upon acceptance by CITY Director of Parks and Recreation.
Any warranties given to the CCTA regarding HEB Tennis Center
Improvements, or any part thereof, shall be transferred and
assigned to CITY at the same time as the HEB Tennis Center
Improvements are accepted by the CITY.
VI.
Indemnification
CCTA 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
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 CCTA, its officers, agents, employees, invitees,
or other person for whom it is legally liable, with regard to the
performance of this Agreement.
VII.
Signage
During the term of this Agreement, CCTA may not place any signage
at the HEB Tennis Center except with prior written approval from
the Director of Parks and Recreation.
VIII.
Utilities
If any utilities are required, needed or desired by CCTA, CCTA
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.
IX.
Independent Contractor
CCTA covenants and agrees that it is an independent contractor
and not an officer, agent, servant or employee of CITY. In
addition, CCTA covenants and agrees that the employees and
volunteers of the CCTA participating in the construction of the
HEB Tennis Center Improvements, or participating in any other
activity arising under or related to this Agreement, are solely
employees and volunteers of the CCTA and they are not employees
or volunteers of the CITY nor are they under the control,
supervision, or administration of the CITY.
X.
Assignment
This Agreement may not be, in whole or in part, assigned or
transferred directly or indirectly without the prior written
consent of the City. However, the CCTA covenants that all
contracts entered into pursuant to this Agreement (Contracts)
shall include the City as a named third party beneficiary,
whereby the City can enforce all of the rights of CCTA under the
Contracts. All rights and benefits according to CCTA under and
through the Contracts shall additionally accrue to the City
including, but not limited to, the contractor warranties
associated with each Contract.
XI.
S
Entire Agreement
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.
XII.
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
CCTA:
XIV.
Non- Waiver
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 Christi Tennis Association
BY:
Signature
Typed or Printed Name: let? tc
Typed or Printed Title : /d�S
Date: ZvlZ-
M
City of Corpus Christi
By: /tf-
Ronald L. Olson
City Manager
Veronica anal
Assistant city Attorney
For City Attorney
(10)
EXHIBIT A
HEB Tennis Center Improvements
1) Raise and level Courts 12, 20, 21, 22, and 23.
2) Patch and resurface courts 1,2,5, 6, 9 & 10.
3) Resurface courts 7, 8, 11 & 12.
4) Make repairs to seating area between courts 5 -8 and 9 -12.
5) Repair walkways as needed.
6) Replace water fountain in breezeway.
7) Install fencing to surround Stadium Court 16.
(11)
Exhibit "A" Location Map
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EXHIBIT B
INSURANCE REQUIREMENTS
I. CONTRACTOR'S LIABILITY INSURANCE
A. Contractor shall not commence work under this agreement until all insurance required herein has been obtained and
approved by the City's Risk Manager or designee. Contractor must not allow any subcontractor Provider to commence
work until all similar insurance required of the subcontractor Provider has been so obtained.
B. Contractor shall furnish to the Risk Manager or designee two (2) copies of Certificates of Insurance, with applicable
policy endorsements showing the following minimum coverage by an insurance company(s) acceptable to the Risk
Manager or designee. The City must be named as an additional insured for the General Liability policy, and a waiver
of subrogation is required on all applicable policies.
TYPE OF INSURANCE
MINIMUM INSURANCE COVERAGE
30 -Day Notice of Cancellation required on all certificates or by
Bodily injury and Property Damage
policy endorsement(s)
Per Occurrence / aggregate
Commercial General Liability including:
$1,000,000 Per Occurrence
1. Broad Form
2. Premises — Operations
$2,000,000 Aggregate
3. Products /Completed Operations Hazard
4. Contractual Liability
5. Broad Form Property Damage
b. Independent Contractors
7. Underground Hazard (if applicable)
BUSINESS AUTOMOBILE LIABILITY
$1,000,000 Combined Single Limit
1. Owned
2. Hired & Non -owned
WORKERS' COMPENSATION
WHICH COMPLIES WITH THE TEXAS WORKERS'
COMPENSATION ACT AND PARAGRAPH II OF
THIS EXHIBIT.
EMPLOYER'S LIABILITY
$500,000 / $500,000 / $500,000
C. In the event of accidents of any kind related to this project, Contractor shall furnish the Risk Manager with copies of
all reports of such accidents within ten (10) days of the accident.
11. ADDITIONAL REQUIREMENTS
A. 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.
(12)
B. Contractor's financial integrity is of interest to the City; therefore, subject to Contractors
right to maintain reasonable deductibles in such amounts as are approved by the City,
Contractor shall obtain and maintain in full force and effect for the duration of this
Contract, and any extension hereof, at 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. 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). 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. 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. Contractor 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 policy
• 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;
• 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 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 the City may have upon Contractor'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 Contractor to stop work hereunder, and/or withhold any payment(s) which become due to
Contractor hereunder until Contractor demonstrates compliance with the requirements hereof.
(13)
G. Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be
held responsible for payments of damages to persons or property resulting from Contractor's or its
subcontractor's performance of the work covered under this agreement.
H. It is agreed that Contractor'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.
I. It is understood and agreed that the insurance required is in addition to and separate from any other
obligation contained in this agreement.
2012 ins req. Parks and Recreation
HEB Tennis Center/Nature Preserve Restoration Project
11 /1 /12 ds Risk Management.
(14)