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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 NN N� 'G �2 6 1 a N -0P \ o�o bc 3 2 100 @po 2 �� 2 H.E.B. TENNIS LOCATION Mj 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)