HomeMy WebLinkAboutC2017-192 - 6/20/2017 - Approved AGREEMENT FOR THE LEASE, CONSTRUCTION OF IMPROVEMENTS
AND OPERATION OF BILLISH PARK
THIS AGREEMENT FOR THE LEASE, CONSTRUCTION OF IMPROVEMENTS AND
OPERATION OF BILLISH PARK ("Agreement") is made and entered into by and between the
CITY OF CORPUS CHRISTI, TEXAS, a home-rule municipal corporation ("City"). and
PADRE ISLES PROPERTY OWNERS ASSOCIATION, INC., a Texas nonprofit corporation
("PIPOA").
I. Term
This Agreement shall commence on the effective date described herein and continue in its first
phase until improvements are accepted by the City as provided herein and thereafter on a year-
to-year basis until terminated as provided herein. In the event that the parties do not reach
agreement on the final plans and specifications for the improvements to Billish Park (the
"Billish Park Improvements") within four (4) months from date of last signature, this
Agreement shall be subject to termination by either party on thirty (30) days' written notice.
Upon the completion of the Billish Park Improvements and acceptance by the City, this
Agreement shall continue in effect on a year-to-year basis consistent with the City's fiscal year
subject to termination by either party by written notice at least three (3) months prior to the
commencement of any City fiscal year.
II. Project Scope
A. The City will provide the PIPOA with the plans and specifications for the Billish Park
Improvements developed by the City's consultant, LMA Design, LLC. Billish Park is an
approximately 11 acre park located at 15601 Gypsy, Corpus Christi Texas. The PIPOA
reserves the right to work with its selected contractors to adjust the plans and
specifications as needed to bring the cost of the Billish Park Improvements within the
available budget. However, the PIPOA assumes any and all risks related to any
adjustment to the plans and specifications developed by the City's consultant. In
addition,the PIPOA recognizes that the City's consultant is not responsible to review nor
approve any adjustments to the plans and specifications. All plans must be submitted to
the City Director of Engineering and Director of Parks and Recreation and allow.for at
least 30 days for final review and approval, which approval shall not be unreasonably
denied.
B. The Billish Park Improvements must include:
1. Installation of new irrigation; and
2. Improvement to the turf and landscaping.
C. The Billish Park Improvements may include:
2017-192
6/20/17 Page I 1
Ord. 031170
Padre Isles Property Owners
IN®EXEC
1. Excavation and grading of a pond, including placement of spoils throughout Billish
Park in accordance with the plans and specifications;
2. Turf establishment on the pond slopes and embankments;
3. Suction pump at the pond for irrigation;
4. Concrete walkways adjacent to the pond; and/or
5. Playground equipment.
D. Upon completion of the modifications to the plans and specifications for the Billish Park
Improvements, the PIPOA shall submit the final terms of the construction contract and
plans and specifications to the City Director of Parks and Recreation and the City
Director of Engineering Services for review and approval, which approval shall be
provided within thirty (30) days and which approval shall not be unreasonably denied.
III. Construction of Improvements
A. The PIPOA agrees to contract for the construction of the Billish Park Improvements as
approved in the manner described above at its sole cost and expense. PIPOA shall ensure
that the construction contract contains the insurance bond, and indemnification terms
outlined on the attached Exhibits A and B. The PIPOA shall confirm with
documentation to the City Director of Financial Services that it has sufficient funds to
pay for the Billish Park Improvements prior to the commencement of any construction.
B. Evidence of Contractor's insurance coverages in the amounts specified in Exhibit A and
City building and construction permits shall be presented to the City Director of
Engineering Services and City Director of Parks and Recreation prior to construction.
C. The PIPOA agrees that all plans developed and 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. The PIPOA
shall ensure that its contractor maintains Billish Park in a clean, safe, and sanitary
condition during the construction activities. The PIPOA shall develop a process to
address and respond to any neighborhood complaints regarding the construction
activities.
D. The PIPOA shall discharge all obligations to contractors, subcontractors, materialmen,
workmen and/or other persons for all work performed and for materials furnished for or
on account of PIPOA as such obligations mature. The PIPOA 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 Billish Park 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 Billish Park Improvements thereon, and
the PIPOA will discharge any such lien within thirty (30) days after notice of filing
thereof.
Page 12
E. The PIPOA 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.
F. During the term of construction, Billish Park shall be leased to the PIPOA and the
PIPOA shall have exclusive possession of the property for the duration of the
construction project, which in no event shall exceed one year from the date of
commencement except with written approval of the City Manager. However, Billish
Park shall remain open to the public except for portions closed due to construction. This
Agreement shall constitute the lease of Billish Park for such purposes for the
consideration provided herein. The commencement date of construction and the lease of
Billish Park shall be deemed to occur upon the issuance of a building permit by the City
for the Billish Park Improvements.
G. The City shall not be liable to PIPOA nor its contractor for any delay damages.
IV. Transfer of Billish Park Improvements to City and Payment
A. Upon the completion of the Billish Park Improvements, the PIPOA shall execute a
special warranty deed conveying such improvements to the City for the purchase price
of $400,000 to be paid by the City (the "City Purchase Price"), which is subject to
further reduction as provided below.
B. The City Purchase Price for the Billish Park Improvements shall be reduced from
$400,000 if the actual costs of construction incurred by the PIPOA (the "Actual Costs
of Construction"), including the costs of one or more construction contractors, design
consultants, construction managers, materials, bonds, insurance, permit fees and all
other out-of-pocket expenses incurred directly for the completion of the Billish Park
Improvements, are less than the sum of $600,000.00. If the Actual Costs of
Construction are less than $600,000, the City Purchase Price to be paid by the City shall
be reduced from $400,000 by 2/3 of the difference between $600,000 and the Actual
Costs of Construction. An example is set out as follows:
Maximum Costs of Construction: $600,000.00
Actual Costs of Construction: $588,000.00
Savings Accomplished: $12,000.00
Savings to City: 2/3 of$12,000= $8,000.00
City Purchase Price: $400,000.00 - $8,000.00 =$392,000.00
C. Upon completion of the Billish Park Improvements, the PIPOA shall deliver to the City
Director of Engineering Services and City Director of Parks and Recreation a cost report
itemizing the expenses incurred including copies of the invoices for each expense. The
City shall have thirty (30) days to inspect the Billish Park Improvements and review
such costs and present any objections to the same. If the parties cannot resolve all
Page 13
objections within thirty (30) days after the making of any objection, the City shall
proceed to pay the full amount of the Purchase Price not in dispute, and the PIPOA shall
deliver the special warranty deed and reserve its rights to seek its remedies at law for the
collection of the remainder of the Purchase Price claimed by the PIPOA.
D. Within sixty (60) days following completion fo the Billish Park Improvements, the
PIPOA shall deliver the special warranty deed to the Billish Park Improvements in
exchange for the payment of the Purchase Price determined in the manner provided
above. The City may retain such deed in its records or file such deed of record with the
Nueces County Clerk, at the City's option. Upon the delivery of such special warranty
deed, the lease provided in Section IV above shall terminate.
E. All warranties provided to the PIPOA regarding the Billish Park Improvements as part
of the construction of same shall be transferred and assigned to the City together with
the special warranty deed.
F. Nothing herein shall obligate the PIPOA to expend more than a total of$600,000.00,
with $200,000.00 being the maximum net cost to the PIPOA, for the construction of the
Billish Park Improvements.
V. Maintenance and Operation of Billish Park
A. The PIPOA agrees to adopt, maintain, and repair Billish Park, including the Billish Park
Improvements upon completion of construction of the Billish Park Improvements, on a
year-to-year basis in accordance with terms and conditions described herein and subject
to adjustment from time to time based on agreement between the PIPOA and the City
Manager or designee.
B. The PIPOA agrees to maintain the multi-purpose sports field established at Billish Park
according to the following standards:
• Mow every 7 days during faster growing periods from March through October
each year and every 14 days during the remainder of each year.
• Aerate on an annual basis.
• Fertilize on an annual basis.
• Irrigate with an automated or manual irrigation system.
• Apply pest control as needed.
• Pick up litter and empty receptacles on a weekly basis or more frequently as
needed.
• Maintain all remaining improvements on an as-needed basis.
C. For the remainder of Billish Park, the maintenance schedule shall be the same except the
mowing schedule may be reduced to approximately 21 times per year mowing every 14
days during months of March through October and every 28 days during the remainder
of the year.
Page I 4
D. The City agrees to trim the palm trees at Billish Park at least one time per year.
E. Each year, the City agrees to provide to the PIPOA $14,700.00 to defray a portion of the
costs of mowing and maintaining the landscaping associated with Billish Park and the
Billish Park Improvements, such amount to be paid on or before December 1 (or other
mutually acceptable date)during each fiscal year subject to appropriation of funding and
the City's annual budget process. The PIPOA shall be responsible for all other costs of
mowing and maintenance of Billish Park. The City agrees to provide three months'
notice of termination as provided in Section XII below in the event that it elects not to
appropriate such funds for the next fiscal year.
F. If constructed, the PIPOA shall be solely responsible for the maintenance of the pond
suction pump and related irrigation system in perpetuity until such system is removed or
replaced.
G. The PIPOA agrees to comply with the City's water conservation program.
VI. Indemnification
The PIPOA does hereby agree to indemnify and hold harmless the 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 out of or in
connection with this Agreement, including 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 the PIPOA, 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 period of construction, the PIPOA may erect a sign reflecting the investment of City
Bond funds and the investment of the PIPOA's funds for the Billish Park Improvements, which
sign shall be subject to approval by the City Director of Parks and Recreation, which approval
shall not be unreasonably withheld or delayed. Otherwise, during the term of this Agreement,
the PIPOA may not place any signage at Billish Park except with prior written approval from
the City Director of Parks and Recreation.
VIII. Utilities
If any utilities are required, needed or desired by the PIPOA during construction of the Billish
Park Improvements, the PIPOA shall bear all costs, expenses and fees of extension connections
or tapping charges for water and sanitary sewer facilities on the City's property, in accordance
with the ordinances of the City, which expenses shall be includable as part of the Actual Costs of
Construction provided above. Except for water used for irrigation purposes as provided below,
PIPOA must pay for all utilities used by it or for any activity sponsored by PIPOA at Billish Park
prior to the due date for payment. PIPOA must adhere to applicable water conservation
Page 15
standards. In an effort to ensure that Billish Park is maintained in accordance with City
standards, the City shall not charge PIPOA for water used by PIPOA to maintain and keep the
Billish Park grounds in good condition.
IX. Independent Contractor
The PIPOA covenants and agrees that it is an independent contractor and not an officer, agent,
servant or employee of City. In addition, the PIPOA covenants and agrees that the employees
and volunteers of the PIPOA participating in the construction of the Billish Park Improvements,
or participating in any other activity arising under or related to this Agreement, are solely
employees and volunteers of the PIPOA and they are not employees or volunteers of the City
nor are they under the control, supervision, or administration of the City.
X. Assignment
The PIPOA shall not assign this Agreement without the prior written consent of the City.
XI. Entire Agreement
This Agreement embodies the complete agreement of the parties hereto regarding the Billish
Park Improvements 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
361-826-3464
PIPOA
14015 Fortuna Bay Drive
Corpus Christi, TX 78418
361-949-7025
XIII. 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.
Page 16
IN WITNESS WHEREOF,the parties hereto have executed this Agreement to be effective as of
2O , 2017.
City of Corpus Christi Padre Isles Property Owners Association,Inc.
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Margie C. Rose (Date) Brent Moore (Date)
City Manager President
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Page 17
EXHIBIT A
INSURANCE REQUIREMENTS
CONTRACTOR'S LIABILITY INSURANCE
A. Contractor must not commence work under this agreement until all insurance required
has been obtained and such insurance has been approved by the City. Contractor must
not allow any subcontractor to commence work until all similar insurance required of any
subcontractor has been obtained.
B. Contractor 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 applicable Per occurrence- aggregate
policy endorsements
Commercial General Liability including: $1,000,000 Per Occurrence
1. Commercial Broad Form $2,000,000 Aggregate
2. Premises—Operations
3. Products/Completed Operations
4. Contractual Liability
5. Independent Contractors
6. Personal Injury-Advertising Injury
AUTO LIABILITY(including) $1,000,000 Combined Single Limit
1. Owned
2. Hired and Non-Owned
3. Rented/Leased
WORKERS' COMPENSATION Statutory
EMPLOYER'S LIABILITY $500,000/$500,000/$500,000
C. In the event of accidents of any kind related to this Agreement, Contractor must furnish
the Risk Manager with copies of all reports of any accidents within 10 days of the
accident.
Page 18
II. ADDITIONAL REQUIREMENTS
A. Applicable for paid employees, Contractor must obtain workers' compensation coverage
through a licensed insurance company. The coverage must be written on a policy and
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 Contractor will be promptly met.
B. 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. Contractor 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. 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 Manager
P.O. Box 9277
Corpus Christi, TX 78469-9277
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:
• 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,
Contractor 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
Page 19
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.
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.
It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this agreement.
Page 110
EXHIBIT B
Terms regarding construction of improvements at Billish Park
The contractors who are awarded contracts for construction of the Billish Park
Improvements shall 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 for construction of the Improvements 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 PIPOA as an Obligee.
2. Performance Bond -A performance bond in the amount of One Hundred Percent
(100%) of the contract for construction of the Improvements shall be furnished covering the
faithful performance of the contract. The performance bond shall be made with PIPOA as an
Obligee.
All construction agreements for the Improvements shall include the following provisions in
large, bold fact font:
THE CONTRACTOR SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS
THE CITY OF CORPUS CHRISTI AND ALL OF ITS OFFICIALS, AGENTS AND
EMPLOYEES, 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.
Page 111
A , e
CERTIFICATE OF INTERESTED PARTIES FORM 1295
1 of 1
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2017-209403
Padre Isles Property Owners Association,Inc.
Corpus Christi,TX United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is . 05/17/2017
' being filed.
City of Corpus Christi Dat Ackno ledged:
mil
3 Provide the identification number used by the governmental entity or state agency to track or identify the c•ntract, d provide a
description of the services,goods,or other property to be provided under the contract.
111
Contract for Lease and Construction of Improvements to Billish Park
4 Nature of interest
Name of Interested Party City,State,Country(place of business) (check applicable)
" Controlling I Intermediary
Jones,Marvin Corpus Christi,TX United States X
Tate,Carter Corpus Christi,TX United States X
Tressa,Nancy Corpus Christi,TX United States X
Sharlow,John"Jack" Corpus Christi,TX United States X
Scanlan,Darrell Corpus Christi,TX United States X
Hess,Leslie Corpus Christi,TX United States X
Moore,Brent Corpus Christi,TX United States X
Wood,Boykin&Wolter,PC Corpus Chrsiti,TX United States X
5 Check only if there is NO Interested Party. ❑
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
cer•a N VERONICA C SALAIS
CjNotarypublic
STATE OF TEXAS i• o'Ili 1r
My Comm.Exp.0906.2020 -ignaUre of authorized agent of contracting business entity
i► vv-4vvvvvvvv.
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said John D. Bell . ,this the day of May
20 17 ,to certify which,witness my hand and seal of office.
•
L/ C f f Veronica Salais Notary Public
Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.883