HomeMy WebLinkAboutC2018-379 - 7/31/2018 - Approved 1
LEASE AGREEMENT BETWEEN THE
CITY OF CORPUS CHRISTI
AND GROW LOCAL SOUTH TEXAS, INC.
STATE OF TEXAS §
KNOW ALL BY THESE PRESENTS:
COUNTY OF NUECES §
This lease ("Lease") is entered into by and between the City of Corpus Christi, a Texas
home-rule municipal corporation ("City"), acting through its duly authorized City Manager, or
designee ("City Manager"), and Grow Local South Texas, Inc. a Texas non-profit corporation
("Lessee"), acting through its President, or President's duly authorized agent.
WHEREAS, the City owns Tom Graham Park located at Oak Park Avenue near Up
River Road„ address of 3914 Up River Road, Corpus Christi, Texas, including any and all
improvements thereon, ("Premises"); and
WHEREAS, the Lessee desires to utilize the Premises to conduct gardening activities
for the benefit of Lessee's members and the public;
NOW, THEREFORE, City and Lessee, in consideration of the mutual promises and
covenants herein, agree as follows:
Section 1. Definitions.
A. City - City of Corpus Christi
B. City Manager - City Manager of Corpus Christi or designee
C. Council - Corpus Christi City Council
A. Director- Director of Park and Recreation Department or his designee
B. Lease - This Lease Agreement, including all attached and incorporated Exhibits
C. Lessee—Grow Local South Texas, Inc.
D. Premises - Tom Graham Park located at Oak Park Avenue near Up River Road,
address of 3914 Up River Road, Corpus Christi, Nueces County, Texas, as shown
on Exhibit "A" which is attached hereto and incorporated herein by reference, and
including any facilities and irrigation system located thereon.
H. Risk Manager- The City of Corpus Christi Risk Management Department
Section 2. Term. City hereby leases the Premises, subject to all of the terms and conditions
of this Lease, to the Lessee. The term of this Lease shall be for a period of five (5) years,
beginning on the day after final Council approval, with one option to extend subject to
approval of the City Manager for one additional five year term, unless sooner terminated as
set out herein.
Section 3. Consideration. In consideration of City's Lease of the Premises to Lessee,
Lessee shall:
A. Regularly maintain the Premises in accordance with this Agreement and provide a public
gardening program at the Premises; and
C2018-379
7/31/18
Ord. 031494
GROW Local South Texas
„ . , SCAN N ED
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B. Within 60 days from the effective date of this Agreement, Lessee shall provide the Director
with a multi-year master plan for the use of the Premises, subject to review by the Director;
and
C. Provide 25-30 trees annually to be planted in the City Parks system; and
D. Volunteer to plant trees during annual Arbor Day event.
Section 4. Lessee Services and Responsibilities.
A. City Use. If Lessee is not using the Premises, City has the right to use any or all the
Premises for City purposes. Lessee shall not be entitled to any compensation, in whatever
form, either tangible or intangible, for the City's use of the Premises.
B. Maintenance. Lessee at its sole cost and expense shall maintain the Premises in
accordance with the schedule attached hereto and incorporated herein as Exhibit "B".
Lessee shall also be responsible to repair and maintain the irrigation system located at the
Premises at its sole cost and expense. If Lessee is unable to perform maintenance tasks as
scheduled, or within a timely manner, the City Manager may terminate this Lease upon fifteen
(15) days written notice to Lessee. The Director may, at any time during the term of this
Lease, promulgate such additional and reasonable maintenance rules as may be necessary
for the efficient and safe operation of the Premises. Director will notify Lessee, in writing, at
least ten (10) days prior to the implementation of any new rule(s) under this Lease.
C. Utilities. Lessee must comply with applicable water conservation standards adopted by
City ordinance. City provides City utility services for the Premises.
D. Insurance. Lessee must obtain and maintain the minimum insurance requirements
set out in Exhibit "C", which is attached hereto and incorporated herein by reference, for the
period of the Lease at Lessee's own expense. Lessee shall use an insurance company or
companies acceptable to the City's Risk Management Department ("Risk Manager") and
must furnish the Risk Manager with a Certificate of Insurance evidencing that such insurance
is in effect. A copy of all insurance policies will be provided to the Risk Manager upon his/her
written request. Lessee cannot begin operation under this Lease until it provides a
Certificate(s) of Insurance for all required insurance to the Risk Manager. City provides
property insurance coverage on the building; however, Lessee is responsible for insuring
Lessee's own personal property which may be located at the Premises.
Section 5. City Responsibilities.
A. Capital Improvements. City may, from time to time, and in City's sole discretion,
undertake capital improvements to the Premises. Prior to commencing any capital
improvements, City shall notify Lessee, in writing, of the dates in which Lessee shall be
required to vacate the Premises, should the Director deem this necessary. Lessee agrees
that the term of this Lease shall not be prorated for the period in which Lessee is restricted
from entering the Premises for the purposes of constructing capital improvements. Lessee
acknowledges and understands that City shall have no obligation to provide an alternate
location for Lessee during any period that Lessee must vacate the Premises.
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B. Contact Person/Lease Administrator. For this Lease, the City's contact person and
lease administrator is the Director of Park and Recreation or designee.
Section 6. Default. The following shall constitute events of default:
A. Failure to perform scheduled maintenance, in accordance with Exhibit "B", and
as required in Section 4B of this Lease.
B. Failure to maintain any insurance required by Section 4.
C. Failure to keep, perform, and observe all other promises, covenants and
conditions contained in this Lease. Lessee shall be notified in writing of any default
and shall have ten (10) days to cure the default. If the default is not cured or
substantially cured within ten (10) days of receipt of the notice, Director may
terminate this Lease upon (10) days written notice to Lessee.
Section 7. Concessions. Lessee may operate farm stand concessions at the Premises
subject to prior written approval of the Director.
Section 8. Laws. Lessee shall comply with all applicable laws, ordinances, regulations, and
rules of the federal, state, county, and City governments which may be applicable to its
operation at the Premises and its performance under this Lease. This Lease is also subject
to applicable provisions of the City Charter.
Section 9. Alterations and Inspection. Lessee shall not make any additions nor alterations to
improvement at Premises without the Director's prior written consent. Any permanent additions or
alterations made by Lessee shall become the property of the City at the expiration of this Lease. All
alterations must be constructed in accordance with applicable Federal, State and Local laws,
regulations and ordinances.
Any officer or authorized employee of the City may enter upon the Premises, at all reasonable times
and notice, to determine whether Lessee is providing maintenance in accordance with and as required
by above, or for any other purpose incidental to City's retained rights of and in the Premises.
Section 10. Relationship. This Lease establishes a Landlord/Tenant relationship, and none
other. In performing this Lease, both City and Lessee will act in an individual capacity and not
as agents, employees, partners, joint venturers, or associates of one another. The
employees or agents of either party shall not be, nor be construed to be, the employees or
agents of the other party for any purpose whatsoever.
Section 11. Indemnity.
Lessee shall defend, 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
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remotely, wholly or in part, by an act or omission, negligence, or
misconduct on the part of the Indemnitees or on the part of Lessee or any
of its agents, servants, employees, contractors, vendors, patrons, guests,
licensees, or invitees ("Indemnitors") entering upon City property, with the
expressed or implied invitation or permission of Lessee, or when any
injury or damage is the result, proximate or remote, of the violation by
Indemnitees or Indemnitors of any law, ordinance, or governmental order
of any kind, or when the injury or damage arose out of, or was caused,
either proximately or remotely , wholly or in part, by an act or omission,
negligence, or misconduct on the part of Indemnitors under this
Agreement.
Lessee covenants and agrees that it City is made a party to any litigation
against Lessee or in any litigation commenced by any party, other than
Lessee relating to this Lease, Lessee shall, upon receipt of reasonable
notice regarding commencement of litigation, at its own expense,
investigate all claims and demands, attend to their settlement or other
disposition, defend City in all actions based thereon, and pay all charges
of attorneys and all other costs and expenses of any kind arising from any
said liability, damage, loss, demand, claim, or action.
Section 12. Assignment. This Lease may not be, in whole or in part, assigned or
transferred directly or indirectly without the prior written consent of the City.
Section 13. Nondiscrimination. Lessee covenants that all its members, guests, and the
public shall be treated equally without regard to or because of race, religion, national origin,
marital status, sex, age, or disability and in compliance with all federal and state laws
prohibiting discrimination in employment.
Section 14. Attorney's Fees. If any action or proceeding is brought to take possession of
the Premises, or to enforce compliance with the Lease, or for failure to observe any of the
covenants of the Lease, Lessee must pay the City such sum as a court of competent
jurisdiction may adjudge reasonable as attorney's fees in said action or proceeding or in the
event of an appeal as allowed by an appellate court if a judgment is rendered in favor of the
City.
Section 15. Termination. Either City or Lessee may terminate this Lease at any time
without cause by givingthirty (30) days written notice to the non-terminating party by any
method set out in Section 16.
Section 16. Notice. All notices, demands, requests, or replies provided for or permitted,
under
this Lease, by either party must be in writing and must be delivered by one of the following
methods: (1) by personal delivery; (2) by deposit with the United States Postal Service as
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certified or registered mail, return receipt requested, postage prepaid; (3) by prepaid
telegram; or, (4) by deposit with an overnight express delivery service, for which service has
been prepaid. Notice deposited with the United States Postal Service in the manner
described above will be deemed effective two (2) business days after deposit with the United
States Postal Service. Notice by telegram or overnight express delivery service will be
deemed effective one (1) business day after transmission to the telegraph company or
overnight express carrier. All such communications must only be made to the following:
IF TO CITY: IF TO LESSEE:
City of Corpus Christi Grow Local South Texas
Attn: Director, Park and Recreation Attn: President
P. O. Box 9277 711 N. Carancahua Street, Suite 700
Corpus Christi, Texas 78469-9277 Corpus Christi, Texas 78401
(361) 880-3464
Either party may change the address to which notice is sent by using a method set out above.
Lessee will notify City of an address change within thirty (30) days after the address is
changed.
Section 17. Waiver. Any waiver by the parties of a breach of any covenants, terms,
obligations, or events of default shall not be construed to be a waiver of any subsequent
breach, nor shall the failure to require full compliance with this Lease be construed as
changing the terms of this Lease or estopping the parties from enforcing the terms of this
Lease.
Section 18. Modifications. No changes or modifications to this Lease may be made, nor
any provision waived, unless in writing and signed by a person authorized to sign agreements
on be-
half of each party.
Section 19. Inspection. Any officer or authorized employee of City may enter upon
Premises, at all reasonable times and without notice, to determine whether Lessee is
providing the maintenance required by Section 4B to the items in Exhibit "A" and in
accordance with the schedule set out in Exhibit "B", or for any other purpose incidental to
City's retained rights of Premises.
Section 20. Signs. Lessee shall not place, paint, post, or otherwise affix any signs at, on, or
about the Premises, or any part thereof, without the Director's prior written approval. City
may require Lessee to remove, paint, or repair any signs allowed. If Lessee does not
remove, paint, or repair the signs within ten (10) days of demand thereof in writing, the City
may remove, paint, or repair the signs and bill Lessee for the cost. Lessee shall pay said
billed costs within thirty (30) days of receipt of invoice from City. If payment is not timely
made, City may terminate this Lease upon ten (10) days written notice to Lessee.
Alternatively, City may terminate this Lease upon ten (10) days written notice to Lessee.
Lessee shall maintain a sign at each entrance to the Premises to limit the liability of
landowners who allow property to be used as a community garden. The signs are required to
be posted to read as follows:
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"WARNING
TEXAS LAW (CHAPTER 75, CIVIL PRACTICE AND REMEDIES CODE) LIMITS THE
LIABILITY OF THE LANDOWNER, LESSEE, OR OCCUPANT FOR DAMAGES ARISING
FROM THE USE OF THIS PROPERTY AS A COMMUNITY GARDEN."
The signs must be posted and maintained in a clearly visible location on or near the
Premises.
Section 21. Surrender. Upon expiration or cancellation of this Lease, Lessee shall return
Premises to City in reasonably good condition, ordinary wear and tear excepted. Any personal
property remaining at the Premises upon expiration of the Lease shall become City property
and may be disposed as City deems appropriate without necessity of any further action or
notice by the City.
Section 22. Acceptance of Premises Disclaimer:
A. LESSEE ACKNOWLEDGES THAT IT IS LEASING THE PREMISES "AS IS"
WITH ALL FAULTS AS MAY EXIST ON THE PREMISES, AND THAT NEITHER LESSOR,
NOR ANY EMPLOYEE OR AGENT OF LESSOR,HAS MADE ANY REPRESENTATIONS OR
WARRANTIES AS TO THE CONDITION OF SUCH PREMISES. LESSEE HEREBY WAIVES
ANY AND ALL CAUSES OF ACTION,CLAIMS,DEMANDS,AND DAMAGES BASED ON ANY
WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTY OF SUITABILITY FOR A PARTICULAR PURPOSE, ANY AND ALL
WARRANTIES OF HABITABILITY, AND ANY OTHER IMPLIED WARRANTIES NOT
EXPRESSLY SET FORTH IN THIS LEASE.
B. LESSEE ACKNOWLEDGES AND AGREES THAT LESSEE HAS BEEN
PROVIDED, TO ITS SATISFACTION, THE OPPORTUNITY TO INSPECT THE PREMISES
FOR ANY DEFECTS AS TO THE SUITABILITY OF SUCH PROPERTY FOR THE PURPOSE
TO WHICH LESSEE INTENDS TO USE THE PREMISES, AND IS RELYING ON ITS OWN
INSPECTION.
C. LESSEE ACKNOWLEDGES THAT ANY AND ALL STRUCTURES AND
IMPROVEMENTS EXISTING ON THE PREMISES ON THE COMMENCEMENT DATE, IF
ANY,ARE ACCEPTED "AS IS" WITH ANY AND ALL LATENT AND PATENT DEFECTS AND
THAT THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY LESSOR WITH
RESPECT THERETO. LESSEE ACKNOWLEDGES THAT IT IS NOT RELYING UPON ANY
REPRESENTATION, STATEMENT OR OTHER ASSERTION BY LESSOR WITH RESPECT
TO ANY EXISTING STRUCTURES OR IMPROVEMENTS, BUT IS RELYING ON ITS
EXAMINATION THEREOF.
D. THE PROVISIONS OF THIS Section 22 SHALL SURVIVE THE EXPIRATION
OR EARLIER TERMINATION OF THIS LEASE.
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Section 23. Publication Costs. Lessee shall pay for the cost of publishing the Lease
description and related ordinance, as required by the City Charter, in the legal section of the
local newspaper.
Section 24. Captions. The captions employed in this Lease are for convenience only and
do not in any way limit or amplify the terms or provisions hereof.
Section 25. Interpretation. This Lease will be interpreted according to the Texas laws
which govern the interpretation of contracts. Venue lies in Nueces County, Texas, where this
Lease was entered into and will be performed.
Section 26. Severability. If, for any reason, any section, paragraph, subdivision, clause,
provision, phrase, or word of this Lease is held invalid or unconstitutional by final judgment of a
court of competent jurisdiction, it does not affect any other section, paragraph, subdivision,
clause, provision, phrase, or word of this Lease, for it is the definite intent of this Lease that
every section, paragraph, subdivision, clause, provision, phrase, or word hereof be given full
force and effect for its purpose.
Section 27. Disclosure of Interests. Lessee agrees to comply with City of Corpus Christi
Ordinance No. 17112 and complete the Disclosure of Interests form as part of this contract.
Lessee agrees to comply with Texas Government Code section 2252.908 and complete Form
1295 Certificate of Interested Parties as part of this contract. For more information, please
review the information on the Texas Ethics Commission website at
https://www.ethics.state.tx.us. Lessee agrees to comply with Chapter 176 of the Texas Local
Government Code and file Form CIQ with the City Secretary's Office, if required. For more
information and to determine if you need to file a Form CIQ, please review the information on
the City Secretary's website at http://www.cctexas.com/government/city secretary/conflict-
disclosure/index.
Section 28. Entirety Clause. This Lease and the incorporated and attached exhibits
constitute the entire agreement between the City and Lessee for the use granted. All other
agreements, promises, and representations, unless contained in this Lease, are expressly
revoked, except for the promulgation of future maintenance rules as contemplated in Exhibit
"B", Section 3, as the parties intend to provide for a complete understanding within the
provisions of this Lease and its exhibits, of the terms, conditions, promises, and covenants
relating to Lessee's operations and the Premises to be used in the operations. The
unenforceability, invalidity, or illegality of any provision of this Lease does not render the other
provisions unenforceable, invalid, or illegal.
EXECUTED IN DUPLICATE, each of which shall be considered an original, on this
the day of , 2018.
CITY OF CORPUS CHRISTI
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By: :r O, , /i/ / ,
Keith Se man, In erim ity Manager ' ' `.�► a AL;,
ATTEST: Ilk, .:.
RE:ECCA HUERTA
CITY SECRETARY
Approved as to legal form this'' day of G , 2018.
By:
e.-=v1/ ,"
Lisa Aguilar, Assistant City Attorney
For the City Attorney
oyd .
GROW LOCAL SOUTH TEXAS, INC. IT COUNCIL I
By:
SECRETARY
Name: yle Hoelscher
Title: President
Date: 07/06/2018
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EXHIBIT "B"
MAINTENANCE SCHEDULE
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Lessee (Grow Local South Texas, Inc.) shall:
A. Perform regular landscape maintenance services (including but not limited to mowing,
edging and lawnblower of all lawn areas) in accordance with the following frequency
schedule.
B. Remove, pick-up and dispose of litter at least 3 times weekly.
C. Regulate irrigation system for effective and efficient watering of law and landscaped areas
following water conservation standards observed by the City (watering completed by 10
a.m.).
D. Repair and replace damaged or broken irrigation components.
E. Maintain and replace park elements according to manufacturer warranty standards during
the warranty period.
F. Trim plans and trees in accordance with ANSI300 Standards to remove dead vegetation
or for accessibility.
G. Replace trees damaged by maintenance activities, or damaged due to excess or lack of
irrigation.
H. Comply with the insurance requirements listed herein.
I. Comply with the City Drought Contingency Plan available at city website.
J. Request prior written approval from the Parks Director prior to installing any improvements.
K. Request special event permit for fundraising activities and events conducted at the park
L. Lessee shall maintain the Premises at all times during the term of this Lease in a clean and
sanitary condition and, at the expiration of Lease, shall return said Premises to City in
reasonably good condition, ordinary wear and tear and acts of God, excepted;
and fire and flood damage or destruction, where Lessee is without fault, excepted.
N. Request small special event permit for fundraising activities and events coordinated by the
organization. Requests should be submitted to Special Events Program Manager. The
Adopt-a-Park coordinator should be copied on the request.
O. Attend an annual meeting with the Park Operations Superintendent or designee to discuss
maintenance issues, safety concerns and proposed improvements.
P. Ensure that all volunteers coordinated by Organization who are volunteering to perform
work for the City at the park have completed the attached Volunteer Wavier form prior to
performing work at the park.
Q. Address any notifications from City for failure to meet responsibilities listed above within
10 days of receipt. Failure to cure issues within 10 days of receipt or the accumulation of
three or more notifications will trigger a review of the agreement with the Director.
Frequency Schedule
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
Mow, Edge,
Weedeat, power 2 2 3 3 3 3 3 3 3 3 2 2
blow walks and
curbs,weed beds
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Remove all litter Every visit
Trim plants and
trees to removeAs needed
dead vegetation or
for accessibility
Apply herbicide,
pesticide and As needed
fertilizer
Monitor irrigation
system (repair as Every visit
needed)
Inspect play and
Every visit
park elements
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EXHIBIT
INSURANCE REQUIREMENTS
LESSEE'S LIABILITY INSURANCE
A. Lessee must not commence work under this agreement until all insurance required has
been obtained and such insurance has been approved by the City. Lessee must not
allow any subLessee to commence work until all similar insurance required of any
subLessee has been obtained.
B. Lessee must furnish to the City's Risk Manager and Director of Parks and Recreation
Department, 2 copies of Certificates of Insurance (COI) with applicable policy
endorsements showing the following minimum coverage by an insurance company(s)
acceptable to the City's Risk Manager. The City must be listed as an additional
insured on the General liability and Auto Liability policies, and a waiver of
subrogation is required on all applicable policies. Endorsements must be
provided with COI. Project name and or number must be listed in Description
Box of COI.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30 written day notice of cancellation, Bodily Injury and Property Damage
required on all certificates or by Per occurrence - aggregate
applicable policy endorsements
Commercial General Liability including: $1500,000 Per Occurrence
1. Commercial Broad Form
2. Premises—Operations
3. Products/ Completed Operations
4. Contractual Liability
5. Independent Lessees
6. Personal Injury- Advertising Injury
C. In the event of accidents of any kind related to this lease agreement, Lessee must
furnish the Risk Manager with copies of all reports of any accidents within 10 days of
the accident.
II. ADDITIONAL REQUIREMENTS
A. Applicable for paid employees, Lessee must obtain workers' compensation coverage
through a licensed insurance company. The coverage must be written on a policy and
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endorsements approved by the Texas Department of Insurance. The workers'
compensation coverage provided must be in an amount sufficient to assure that all
workers' compensation obligations incurred by the Lessee will be promptly met.
B. Lessee shall obtain and maintain in full force and effect for the duration of this
Contract, and any extension hereof, at Lessee'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. Lessee shall be required to submit a copy of the replacement certificate of insurance to
City at the address provided below within 10 days of the requested change. Lessee
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 Manager
P.O. Box 9277
Corpus Christi, TX 78469-9277
D. Lessee agrees that with respect to the above required insurance, all insurance
policies are to contain or be endorsed to contain the following required
provisions:
• List the City and its officers, officials, employees, volunteers, and elected
representatives as additional insured by endorsement, as respects operations,
completed operation 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, Lessee shall provide a replacement Certificate of Insurance and applicable
endorsements to City. City shall have the option to suspend Lessee'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.
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F. In addition to any other remedies the City may have upon Lessee'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 Lessee to stop work hereunder,
and/or withhold any payment(s) which become due to Lessee hereunder until Lessee
demonstrates compliance with the requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to which
Lessee may be held responsible for payments of damages to persons or property
resulting from Lessee's or its contractor's performance of the work covered under this
agreement.
H. It is agreed that Lessee'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.
2018 Insurance Requirements
Parks and Recreation Dept.
Grow South Texas Park Lease
04/11/2018 sw Risk Management