HomeMy WebLinkAboutC2017-495 - 11/14/2017 - Approved Construction and Donation of Terminal Improvements
THIS AGREEMENT for the construction and donation of improvements in the Corpus Christi
International Airport terminal ("Agreement") is made and entered into by and between the Cfl'Y OF
CORPUS CHRISTI, a municipal corporation ("City"), and Horton Automatics,a division of Overhead
Door Corporation,an Indiana corporation ("Donor').
I. Term. This Agreement commences on the date of the last signature and continues until the
improvements described in this Agreement are accepted by the City's Director of Aviation or his
designee (`Director") and the three-year warranty period has expired. Unless terminated as set
forth herein, after the installation of the improvements and required inspections, if any, the Donor
desires to and shall donate the improvements to the City, which improvements are subject to
acceptance by the Director on behalf of the City. Following acceptance of the donation by the
City,the City acquires clear and perpetual title to the improvements.
2. Termination. This Agreement may be terminated at any time by the City prior to acceptance of the
improvements upon 10 days prior written notice.
3. Improvements. The improvements consist of a Secure Exit Lane, sidelites, electrical components,
and installation of the foregoing inside the Corpus Christi International Airport terminal
(Improvements'), with such Improvements to be provided and completed by the Donor. More
specifically, the Improvements include a 20' long, 5' wide passageway with doors on each end,
with sensors and warning systems,designed for use as an exit from the secure area of a facility and
deterring unauthorized entrance through said exit. The installation component of the
Improvements is an integral part of the donation and cannot be severed from this Agreement and
completed separately since the Donor has manufactured the Secure Exit Iane- Donor may utilize,
at Donor's discretion and as needed, one or more subcontractors to complete Donor's installation
work.
4. Construction of Improvements. Once this Agreement has been approved by the City Council, the
parties will agree on a time and date on which the construction will be commenced. Donor shall
conduct its operations under this Agreement in an orderly and proper manner, considering the
nature of the City's airport operation, so as not to unreasonably annoy, disturb,or endanger others.
Donor shall be responsible for disassembling the existing sliding door and the City shall be
responsible for transporting and storing the door once removed. If any electricity or electrical
connections are required or needed by the Donor for the installation of the Improvements, the City
shall bear all costs, expenses, and fees for the same. Following completion of installation of the
Improvements, Donor shall furnish the Director with any necessary plans and specifications
pertinent to the electrical components and connections associated with the Improvements.
5. Temporary Facilities. Donor anticipates the Improvements will not take more than two(2)days to
complete the installation once onsite. In light of the foregoing. City may select specific days and
times in which Donor may perform the work. For the duration of'the installation and during any
subsequent maintenance or repairs, City shall be responsible for setting up temporary exits so as to
provide Donor a traffic free area in which to perform. 'to the extent necessary, City shall also be
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2017-495
11/14/17
M2017-184
Horton Automatics
INDEXED
responsible for providing temporary partitions and coordinating the necessary TSA personnel to
secure City's facility.
6. Removal of the Improvements. If for any reason the City is not satisfied with the Improvements
during the three (3) year warranty period and elects to have the Improvements removed, Donor
shall restore the existing sliding door to its pre-removal placement condition. If the City elects to
have the original sliding door restored, City shall transfer title to the Improvements back to Donor.
If the sliding door was damaged after being disassembled by Donor, City shall be responsible for
the costs to repair any such damage. City acknowledges that Donor will be required to drill small
holes into the terrazzo flooring and the support columns in order to install the improvements. In the
event City elects to have the original sliding door restored, City agrees that Donor shall only be
required to patch these holes as opposed to returning the flooring and support columns to their
original condition.
7. Laws and Permits. City shall arrange for any required City building/construction permits. Donor
agrees that all work performed for, or associated with, the Improvements shall be done in full
compliance and in accordance with all federal, state, and local laws, rules, regulations, ordinances,
and codes including, but not limited to, the Americans with Disabilities Act and the Americans
with Disabilities Act Accessibility Guidelines and that such installation work is subject to review
and approval of the Director, the City's Engineering Services Department, and to inspection by the
appropriate regulatory authorities during the performance thereof and after completion.
8. Liens. Donor shall discharge all obligations to contractors, subcontractors, materialmen, workmen,
and other persons for work performed and materials furnished for or on account of the Donor as
such obligations mature. Donor 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 the
Improvements in the process of construction or repair,nor will Donor allow any condition to exist
or situation to develop whereby any party should he entitled,as a matter of law,to a mechanic's or
materialmen's lien against the City's property or Improvements thereon, and Donor affirmatively
agrees to discharge any such lien within 30 days after the date of filing.
9. Taxes. Donor shall pay all taxes, special assessments, or levies, if any, assessed during the term of
this Agreement against or relating to the Improvements on City's property, including ad valorem
taxes and personal property taxes until such time as ownership of the Improvements is transferred
to the City.
10. Airport Security. City shall be solely responsible for implementing any equipment, procedures,
personnel, and systems to secure the Corpus Christi International Airport Neither the
Improvements nor any other provision of this Agreement is intended to impose a duty upon Donor
to secure, or to otherwise provide security at the Corpus Christi International Airport. To the
extent permitted by the Constitution and laws of the State of Texas, City shall indemnify, defend,
and hold Donor harmless from and against any claim, loss, damage,or harm that arises out of or is
the result of City's failure to comply with this section. The terms set forth in this section may only
be modified by a written instrument signed by the party against whom any change is sought.
1 I. Confidentiality. As used herein, the term "Information" shall include all of the Donor's
specifications and drawings, and all design, technical, manufacturing, process, financial, and other
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information disclosed to or acquired by City in any manner directly or indirectly from the Donor,
and Information shall also include all design and development information provided to the Donor
by the City; provided that Information shall not include any information that the City can
demonstrate: (1) was at the time obtained from the Donor part of the public domain or thereafter
becomes part of the public domain through no act or omission of City or its employees or agents;
(2) was in the possession of City prior to being obtained from the Donor, as demonstrated by
written records; or(3) is hereafter lawfully disclosed to City, under conditions which do not restrict
further disclosure, by a third party which did not acquire it under an obligation of confidentiality to
the Donor. In exchange for the benefits contemplated by this transaction and Donor permitting City
access to the Information, City hereby agrees to be bound by the obligations set forth in this
Agreement. For a period of five (5) years from the date hereof, City shall not disclose any
Information to any third party and City shall take all reasonable precautions to prevent the same
from being obtained in any manner by third parties. Upon request of the Donor, City shall
promptly return to the Donor any and all documents containing any Information together with any
copies thereof, and shall destroy all documents generated by City containing any Information. The
parties recognize that it may be difficult or impossible to prove damages in the event this
Agreement is violated, and that the only practical recourse may be application for a restraining
order, injunction, or other equitable relief In the event of such application by the Donor, the City
hereby waives any requirement of proof of inadequate remedy at law or irreparable harm or any
requirement for a bond. Nothing stated herein shall preclude the City from disclosing Information
that the City is legally compelled to disclose by court order, subpoena, or pursuant to the Texas
Public Information Act.
12. Ownership of Inventions. Fora period of five (5) years from the date hereof, City shall only use
Information Tor the purpose of providing the Donor customer and user oriented comments with
regard to the Information. The Donor may, in its sole discretion, implement and use any ideas,
concepts or information related by or through the City's comments in connection with the Donor's
Improvements, without limitation and at no cost All data, ideas, improvements, and inventions
conceived of and/or reduced to practice by City on the Donor's behalf or incorporating or using
any of the Donor's specifications or other Information shall exclusively be the Donor's property.
13. Insurance. Prior to the commencement of any work on City property, Donor shall furnish, and
require any subcontractors for the Improvements to furnish, insurance in such amounts as specified
on the attached Exhibit A,the content of which is incorporated by reference into this Agreement as
if fully set out here in its entirety. Any subcontractors of the Donor shall similarly provide the
same proof of insurance and permits prior to performing any work on City property.
14.Indemnification. DONOR SHALL INDEMNIFY AND HOLD HARMLESS THE
CITY AND ALL OF ITS OFFICERS, EMPLOYEES, AND AGENTS
("INDEMNITIES") FROM ANY AND ALL LIABILITY, LOSSES, CLAIMS,
SUITS, DEMANDS, AND CAUSES OF ACTION OF ANY NATURE
WHATSOEVER ON ACCOUNT OF PERSONAL INJURIES (INCLUDING
DEATH), PROPERTY LOSS, OR DAMAGE, OR ANY OTHER KIND OF
INJURY, LOSS, OR DAMAGE, INCLUDING ALL EXPENSES OF
LITIGATION OR SETTLEMENT, COURT COSTS, ATTORNEYS' FEES,
AND EXPERT WITNESS FEES, TO THE EXTENT CAUSED BY A DEFECT
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IN THE PRODUCT OR THE NEGLIGENT ACTS OR OMISSION OF THE
DONOR OR ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS IN
CONNECTION WITH DONOR'S PERFORMANCE OF ITS OBLIGATIONS
PURSUANT TO THIS AGREEMENT BUT NOT TO THE EXTENT THE
INJURY, LOSS, OR DAMAGE IS CAUSED BY THE NEGLIGENT ACT,
OMISSION, MISCONDUCT, OR FAULT OF INDEMNITIES OR ANY
THIRD PARTY. SUBJECT TO THE FOREGOING LIMITATIONS, DONOR
WILL, AT ITS OWN EXPENSE, INVESTIGATE ALL CLAIMS AND
DEMANDS, ATTEND TO THEIR SETTLEMENT OR OTHER
DISPOSITION, DEFEND ALL ACTIONS BASED THEREON WITH
COUNSEL SATISFACTORY TO THE CITY ATTORNEY, AND PAY ALL
CHARGES OF ATTORNEYS, AND ALL OTHER COSTS AND EXPENSES
OF ANY KIND ARISING FROM SAID LIABILITY, LOSSES, CLAIMS,
SUITS, DEMANDS AND ACTIONS. THE INDEMNIFICATION
OBLIGATIONS OF DONOR UNDER THIS SECTION SURVIVES THE
EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT.
15.Maintenance. City shall be responsible for performing daily inspections to ensure the equipment is
operating properly. In the event the door is not operating properly, City shall take the door out of
service immediately and contact Donor to perform an inspection and repair as applicable. Donor
shall-not be liable for claims arising out of City's failure to comply with this section.
16. Warranty. Donor warrants and guarantees that all materials and equipment incorporated in
Donor's Improvements shall be new and that all work shall be of good quality, free from faults and
defects and in conformance with the requirements of this Agreement. City shall have the right to
inspect Donor's Improvements and to reject any portion thereof not in accordance with the
requirements of this Agreement, and Donor, at its sole expense, shall promptly replace rejected
portions of Donor's Improvements in a manner satisfactory to City. Further, in accordance with the
Donor's manufacturer's warranty, the Improvements shall be free from defects for a period not to
exceed three (3) years following the installation of the Improvements. Any replacement or repairs
needed and occasioned by normal use during the three-year warranty period shall be provided by
Donor.
17. Innovative Task Force Program. In consideration of the Improvements contemplated by this
Agreement, City agrees that it will take the necessary steps to apply for, and make all reasonable
efforts to become, an approved Innovative Task Force Site. (Office of Requirements, Capabilities
and Analysis, Email: Brian.Miller3@tsa.dhs.gov, Office: 571-227-3125, Cell: 202-725-6203)- To
the extent the City fails to or refuses to take the necessary steps, Donor reserve the right to remove
the Improvements, provided that Donor restores the original sliding door to operating condition.
The foregoing shall not be applicable to the extent the City is not approved for the TSA program
despite its reasonable efforts to do so.
18.Signage. During the term of this Agreement, Donor may display signage at the location of the
installation of the Improvements with the prior written approval of the Director. Following
acceptance of the Improvements by the City, the City shall recognize the Donor's gift of the
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Improvements by signage either displayed on the Improvements or in close proximity to the
Improvements during the period of time the Improvements remain in place and operational.
19. Notices. Notices and communications will be deemed received on the date delivered when sent via
personal delivery or a delivery service and on the third business day when sent via First Class mail.
Any notices or communications required under this Agreement or desired to be given by either
party must he in writing and either delivered in person, sent by overnight express delivery service,
or sent by First Class mail, and addressed to the recipient as follows:
If to the City: If to Donor:
Corpus Christi International Airport Horton Automatics
Attn: Director Ann: President
1000 International Drive 4242 Baldwin Blvd.
Corpus Christi,TX 78406 Corpus Christi, TX 78405
CC: Overhead Door Corporation
Attn: Legal Department
2501 S. State Hwy 121, Ste. 200,
Lewisville,TX 75067
20, Independent Contractor. Donor covenants and agrees that it is an independent contractor and not
an officer, agent, servant, or employee of the City. In addition, the Donor covenants and agrees
fhat_t_he employees participating in the construction and installation of the Improvements, or
participating in any other activity arising under or related to this Agreement, are solely employees
of the Donor and are not employees of the City nor under the control, supervision, or direction of
the City.
21. Authority. Each of the undersigned, by the execution of this Agreement, warrants that he/she has
full power, authority, and legal right to enter into this Agreement on behalf of the party for whom
he/she is executing this instrument and to consummate the transaction contemplated under this
Agreement.
22. Successors and Assigns. This Agreement and all of the terms and provisions hereof is binding
upon and inures to the benefit of each of the parties hereto and their respective legal
representatives, heirs, successors, and assigns.
23. Assignment. This Agreement may not be, in whole or in part, assigned or transferred directly or
indirectly by the Donor to a third party without the prior written consent of the City.
24.Jurisdiction; Venue. This Agreement is governed by and is to be construed in accordance with the
laws of the State of Texas and ordinances, rules, and regulations of the City- This Agreement
requires performance in Nueces County, Texas, wherein jurisdiction and venue for any dispute
arising out of or related to this Agreement shall be brought in the appropriate court.
25. Entire Agreement. This Agreement embodies the complete donation agreement of the parties and
supersedes all oral or written previous agreements between the parties relating to the matters herein
and cannot be modified without written agreement of the parties.
[SIGNATURE PAGE FOLLOWS]
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(Donor)
By: Kiat.--
Printed Name: • K%12.k BR-ut4Sv nt
Title: P'-GS1DCPT , \D-TO,. AU otyvAT tL-S
Date: No lc me, e_. t a-O(1
City of Corpus Christi
By: ,l IIcULL ' R OQL-C-.J
Printed Name: 1M U j G ' 2c)sv
Title: e; `'U a na3e-r'
Date: 11, 1(e . l 7
ATTEST: 1\4Z- -- 1.f-e-,V(e--
REBECCA HUERTA
'�f CITY SECRETARY
Appr•ved as to legal form ria "i' k- 'v / 2017
A. 1 L �■ /�_
Elizab iiundlcy, A sistant City Mil-.y
for Mil s Risley, City Attorney
HzonI * UKI
Attached and Incorporated by Reference: SY ('Otl11CIL... ..�,.
Exhibit A— Insurance Requirements •---
CFrRFTAPv
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EXHIBIT A
INSURANCE REQUIREMENTS
DONOR'S LIABILITY INSURANCE
A. Donor must not commence work under this contract until all insurance required has been obtained_and
such insurance has been approved by the City. Donor must not allow any subcontractor, to commence
work until all similar insurance required of any subcontractor has been obtained.
B. Donor must furnish to the City's Risk Manager and Engineering Director one (I) copy of Certificates of
Insurance 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 by endorsement, and a waiver of subrogation
endorsement is required on GL, AL and WC if applicable. Endorsements must be provided with
Certificate of Insurance. Project name and/or number must be listed in Description Box of Certificate of
Insurance.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-day advance written notice of Bodily Injury and Property Damage
cancellation, non-renewal, material change Per occurrence - aggregate
or termination required on all certificates
and policies.
COMMERCIAL GENERAL LIABILITY $1,000,000 Per Occurrence
including: $1,000,000 Aggregate
1. Commercial Broad Form
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'S COMPENSATION Statutory and complies with Part II of this
(All States Endorsement if Company is not Exhibit.
domiciled in Texas)
Employers Liability $500,000/$500,000/$500,000
C. In the event of accidents of any kind related to this contract, Donor must furnish the Risk Manager with
copies of all reports of any accidents within 10 days following the Risk Manager's written request to
provide the same.
II. ADDITIONAL REQUIREMENTS
A. Applicable for paid employees, Donor 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 statutory amounts
according to the Texas Department of Insurance, Division of Workers' Compensation. An All States
Endorsement shall be required if Donor is not domiciled in the State of Texas.
B. Donor shall obtain and maintain in full force and effect for the duration of this Contract,and any extension
hereof, at Donor'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. Donor shall be required to submit renewal certificates of insurance throughout the term of this contract
and any extensions within 10 days of the policy expiration dates. All notices under this Exhibit 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. Donor 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, and volunteers, as additional insureds by endorsement
with regard to operations, completed 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,cancellation,non-renewal,
material change or termination 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 cancellation, non-renewal, material change or termination of coverage,
Donor shall provide a replacement Certificate of Insurance and applicable endorsements to City. City
shall have the option to suspend Donor'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 Donor'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 Donor to stop work hereunder, until Donor demonstrates compliance with the requirements
hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to which Donor may be held
responsible for payments of damages to persons or property resulting from Donor's or its subcontractor's
performance of the work covered under this contract.
H. To the extent a claim is the result of Donor's negligent acts or omissions or willful misconduct, it is agreed
that Donor'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 contract.
I. It is understood and agreed that the insurance required is in addition to and separate from any other
obligation contained in this contract.
2017 Insurance Requirements
Legal—Airport
Installation of Horton Secure Exit Lane
10/11/2017 sw Risk Management
CERTIFICATE OF INTERESTED PARTIES FORM 1295
1 oft
Complete Nos.1-d and 6 if there are interested pent. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there ale no interested ponies. 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. 2017-289650
Horton Automatics,a division of Overhead Door Corporation
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 12)01/2017
being Bled.
City of Copus Christi Date Ackn edged: A✓
LI 'I 201"1 w
3 Provide the Identification number used by the governmental entity or state agency to track or identify the cdntract,and provide a
description of the services,goods,or other property to be provided under the contract.
xxxx
Secure exit lane donation to the City of Corpus Christi
q Nature of interest
Name of Interested Party City,State,Country(place of business) (check applicable)
Controlling I Intermediary
Wilson,John Lewisville,TX United States X
5 Check only it there is NO Interested Party. ❑
6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct.
Signature of auihodzed agent of contracting business entity
AFFIX NOTARY STAMP/SEAL ABOVE
Sworn to and subscribed before me,by the said Jdhn I.Ji\ $on. this the q day of (22c. r.Ju.z,r.
20 I l ,to certify which,witness my hand and seal of office.
r±"`\ LINDA OVERSTREET
c n )v Notary PublicState of Taw
:..dC ..C.r/�.c / �tF��I.IJu�('ruf \:' f txmr��gjp, n.13BggetA
Sign a of officeradministering oath Printed name of officer adra yq Aq Ou„�„ Y. l! ring oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.3337