HomeMy WebLinkAboutC2021-355 - 11/16/2021 - Approved First Amended Lease-Purchase and Operating Agreement between
Texas State Aquarium Association and City of Corpus Christi
State of Texas §
County of Nueces §
This First Amended Lease-Purchase and Operating Agreement (the "Lease" or "Lease-
Purchase Agreement")dated as of the Commencement Date(as defined herein), amends, restates
and replaces in its entirety that prior Lease and Operating Agreement between Texas State
Aquarium Association and City of Corpus Christi dated January 18, 2015.
Recitals:
The Texas State Aquarium Association, a Texas nonprofit corporation ("TSA" or
"Lessee"), acting through its duly authorized President and CEO, or designee, ("President"), of
2710 N. Shoreline Blvd., Corpus Christi, Nueces County, Texas, 78402, has constructed and
operates a public aquarium(the"Aquarium" as more specifically defined in Section 3) in Corpus
Christi, Texas, on a nonprofit basis for multiple public purposes including the education and
enjoyment of visitors from inside and outside of Texas, promotion and growth of scientific
knowledge, advancement of interest in marine resources and the study thereof, and promotion of
interest in the Corpus Christi Bay Area for both business and personal pursuits.
The City of Corpus Christi,a Texas home-rule municipal corporation("City"or"Lessor"),
acting through its duly authorized City Manager,or designee, ("City Manager")of 1201 Leopard,
Corpus Christi,Nueces County,Texas 78401, is the owner of certain real property in Texas State
Aquarium Subdivision on Corpus Christi Beach in Corpus Christi ("Aquarium Property")and on
the Rincon Channel("Sealab Property").
The State Legislature of the State of Texas has designated the Aquarium facility operated
by TSA as the official Aquarium of the State of Texas.
TSA has operated the Aquarium to deliver the above-mentioned public benefits in a manner
reflecting favorably upon both TSA and the City while assuring appropriate accountability for all
public monies previously contributed thereto.
The City purchased certain property for the Aquarium pursuant to Ordinance No. 19619,
adopted on February 2, 1987, which authorized the City to spend up to $1.3 million for the
acquisition of certain property, improvement to certain property, and the form of lease for certain
property acquired and improved.
Further,the City and TSA jointly funded the design of the Aquarium pursuant to Ordinance
No. 19764, adopted on June 3, 1987, which authorized the City to spend up to $500,000 on
Aquarium design, with TSA to pay for 50% of the design, and all design costs in excess of
$1,000,000.
C:\Users\constancep\AppData\Local\Microsoft\Windows\INetCache\Content.Outlook\ECZNTSYO\Clean Copy City 10.14.21
edits First Amended Lease to 2014 Lease and Operating Agreement.docx
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The City and TSA entered into a Purchase Agreement,whereby TSA would construct the
Aquarium on land it had separately acquired and subsequently convey said land and the completed
Aquarium to the City in consideration of the City's paying the purchase price for such completed
Aquarium,then the City would lease the property back to TSA along with other property acquired
by City for a 20-year lease term for TSA to operate the Aquarium, authorized by Ordinance No.
019674,adopted on June 15, 1987.
The City actually leased the Aquarium Property to TSA by virtue of a lease dated October
5, 1988,authorized by City Ordinance No. 020507 on March 29, 1988,which included a five-year
lease on adjacent subsurface area.
The City subleased certain parking lots, leased by the City from the Texas Department of
Transportation, to TSA with the agreement that TSA would operate the parking lots and pay a
portion of the debt service related to construction of the parking lots by virtue of a lease authorized
by Ordinance No. 021839,adopted on December 21, 1993.
By Agreement of March 20, 1996, authorized by City Council Resolution 022500 on
February 27, 1996, TSA conveyed certain additional real property to the City in consideration of
TSA revenue-backed Certificates of Obligation("Certificates") in the amount of$4,400,000.
The City and TSA entered into a new 20-year lease covering all of the above referenced
properties by a lease dated July 5, 2000, authorized by City Ordinance No. 024083 on June 27,
2000, providing for the continued occupancy and operation of the Aquarium by TSA until
September 5,2020.
The City and TSA also entered into multiple other agreements to acquire and develop the
Aquarium,and all such agreements are of public record. TSA expanded the Aquarium to construct
the Caribbean Building, as more particularly described below, and in order to finance such
expansion plans TSA required a long-term leasehold interest in the Property,and both the City and
TSA entered into a Lease-Purchase Agreement effective January 18,2015 to provide the option to
purchase and extend the other terms, conditions and provisions of the then-current lease and
operating agreement in order to facilitate such expansion plans and assure the continued
maintenance and modernization of the Aquarium on a long-term basis.
The City and TSA further provided for the purchase and re-acquisition of the land and
improvements comprising the Aquarium by TSA conditioned on the faithful performance by TSA
of its obligations under this Lease-Purchase Agreement and continuation of the operation of an
aquarium and sea life park for a minimum of fifty(50)years.
TSA desires to construct new Texas State Aquarium Wildlife Rescue Center on the
Aquarium Property which the Wildlife Rescue Center is depicted on the attached Exhibit C.
On November 3, 2020, voters in the City of Corpus Christi approved Proposition B in an
amount not to exceed$12,000,000 with priority projects including Texas State Aquarium Center
for Wildlife Rescue and Research and other named projects.
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The City's Voter's Guide for Bond 2020 stated"The City will provide leverage funding in
the amount of$3M to assist the Texas State Aquarium with the construction of the new Texas
Center for Wildlife Rescue and Research. Total costs for the project is$15 M and the remainder
of the funds will come from fundraising by the Texas State Aquarium."
NOW, THEREFORE, the City and TSA, in consideration of the covenants contained
herein, do mutually agree as follows:
Agreement:
1. Premises. The City leases to TSA all of the property described in the attached and
incorporated Exhibit A, all of City's interest in the Sealab Property described in the attached and
incorporated Exhibit B, and all improvements located thereon (collectively called "Aquarium
Property" or "Lease Premises") for and in consideration of the covenants and conditions of this
Lease.
2. Term. This Lease-Purchase Agreement is for a term of twenty (20) years,
commencing on the 61st day after final City Council approval, which is
, 2022 (the "Commencement Date"),_and terminating on
December 31,2041.
3. Consideration and Permitted Use. The Aquarium Property must be used solely as an
aquarium and sea life park, and rescue center, herein referred to as either "Aquarium" or
"Aquarium Facility"; provided, however, that TSA may operate food, drink, souvenir, and such
other concessions as the President may deem consistent with, but secondary to, operation of the
Aquarium,including without limitation participating in fundraising activities.
4. The Project. TSA financed,designed,built, and currently maintains and operates the
Caribbean Journey building (the "Caribbean Building") based on plans and specifications
approved by the City Manager of the City (the "Caribbean Building Project"). The Caribbean
Building Project complements the Gulf of Mexico Exhibit Building (the "Gulf of Mexico
Building"), in order to further the Aquarium experience in:
• Interpreting the unique biodiversity and culture of the Yucatan region;
• Utilizing state-of-the-art, immersive, interactive aquarium exhibitions;
• Incorporating a multi-sensory 4D-theater experience;
• Adding the capacity and building infrastructure to expand the Aquarium's research and
conservation programs, guest and event services, and catering capabilities.
TSA was solely responsible for the design,construction and furnishing of the Caribbean Building
Project and expended an amount not less than$45 million therefor.
The Wildlife Rescue Center Project. TSA will finance, design, build, maintain and operate a
new Wildlife Rescue Center on the Aquarium Property(the"Rescue Center"). The Rescue Center
and its location are depicted on the attached Exhibit C. TSA will be solely responsible for the
design,construction and furnishing of the Rescue Center and will expend not less than$15 million
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therefor. TSA has full funding available,raised from donors,and from cash reserves. These funds
include $3 million available through Proposition B of the City 2020 bond election. TSA may
submit to the City Director of Finance a Certification for Payment, in the form attached hereto as
Exhibit E for reimbursement of actual costs related to the Rescue Center. The City will reimburse
the TSA from Bond 2020 Proposition B funds in an amount up to$3,000,000.00 for construction
of the Rescue Center. TSA may only submit one Certification for Payment in each 30-day period.
The Rescue Center must include a wildlife rescue theater, which must prominently display the
name"City of Corpus Christi Wildlife Rescue Theater."
If TSA fails to complete construction of the Rescue Center Project within three years of the
Commencement Date,the City shall notify TSA in writing of the event of default and provide 60
days from the date of the notice for TSA to cure the event of the default. If, after 60 days, and
taking into account any extenuating circumstances that might have occurred through no fault of
TSA, as determined by the City, TSA shall immediately repay all funds paid by the City from
Bond 2020 Proposition B.
Upon completion of the Rescue Center Project, TSA may vacate the Sealab property which will
then revert back to its respective owner. TSA shall notify the City Risk Manager in writing if TSA
vacates the Sealab property.
5. TSA Responsibility. TSA shall be exclusively responsible for all planning, design,
financing, advertising for bids, choice of contractor, supervision of construction, construction,
equipping, stocking, establishment, operation, maintenance, management, and all other activities
related to the Aquarium. TSA is not relieved of such responsibility by any approval of the plans
and specifications,inspection or approval by City or its agents of the Aquarium or any part thereof
or any activity connected therewith,nor by any right of City,under this Lease-Purchase Agreement
or otherwise, whether exercised or not, to make any such inspection or approval. Nothing in this
Lease shall commit any City funds to pay for any maintenance or improvements to the Aquarium,
and nothing herein shall commit the credit of the City for the payment of any obligations incurred
by TSA in connection with its operation of the Aquarium and the construction of the Project or
any improvements to the Aquarium.
6. Aquarium Operation;Admission. TSA must operate the Aquarium in a businesslike
manner at all times. TSA shall furnish and stock the Aquarium with all marine life, exhibits,
artifacts, equipment and facilities consistent with a quality aquarium operation. The Aquarium
shall be operated by TSA for the use and benefit of the public and must be open during a reasonable
portion of the daytime hours of most days of the year; provided however, that TSA may charge a
fee for admission to the Aquarium Facility on a nondiscriminatory basis and TSA may fence the
Aquarium Property and restrict access. TSA may adopt admission fee rate structures of the type
normally adopted by public zoological institutions.
7. Revenues Generated. All funds generated by the operation of the Aquarium and/or
private fund raising efforts of TSA shall be used exclusively by TSA for the benefit of programs
and facilities supporting the purposes specified in TSA's mission statement or as otherwise
allowed under Section 501(c)(3)of the Internal Revenue Code.TSA will use its best efforts during
the term of this Lease to raise sufficient funds to fully support the Aquarium.
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8. Safety. TSA must operate, inspect, and maintain adequate firefighting and safety
systems on the Aquarium Property.
9. Maintenance. At all times during this Lease TSA must keep and maintain in good
repair and clean and attractive condition all buildings, improvements, grounds, and personal
property on the Aquarium Property,and if any improvement erected on the Aquarium Property for
Aquarium purposes is damaged or destroyed,TSA, as soon as the same may be done,must repair
or restore the improvement to as good condition and value as existed before such damage or
destruction,unless prohibited by law. Until the termination or expiration of this Lease,TSA shall
continue to maintain the buildings,improvements,grounds,and personal property in the condition
required in the preceding sentence.
10. Pollution of Bay. TSA shall make reasonable efforts to ensure that no pollutant,
effluent, liquid or solid waste material, fresh or salt water discharge(except salt water discharges
authorized by applicable local, state and federal government permits),litter,trash, or garbage that
originates from the Aquarium Property is allowed to collect in Corpus Christi Bay,Nueces Bay,
or neighboring property. TSA shall be solely responsible for any pollutant, effluent, liquid or
solid waste material, fresh or salt water discharge (except salt water discharges authorized by
applicable local,state and federal government permits),litter,trash,or garbage that originates from
the Aquarium Property.
11. Financial Statements. TSA shall keep strict and accurate books of account and shall
deliver to the City's Director of Finance an annual financial statement prepared by an independent
certified public accounting firm reflecting financial operations of TSA for such calendar year, no
later than May 31 annually. The books of account must be available to City Manager upon request
during normal business hours.
12. Transfer of Funds Regarding 1996 Certificates. TSA has paid the debt service on the
1996 $4.4 million Combination Tax and Revenue Certificates of Obligation.
13. Assignment or Sublease. TSA may not assign this Lease nor sublease the Aquarium
Property, nor any part thereof, without the prior written consent of the City, except in connection
with a permitted leasehold mortgage as provided below. Provided, however, TSA may contract
for and/or sublease concessions for the Aquarium and space rent any portion of the facilities for
special events, so long as TSA maintains control over such areas and assures that their operation
is consistent with this Lease. Provided, further, TSA may sublease dock space to allow tourist
boat,water taxi,research and university boat access.
14. Leasehold Mortgages. TSA shall have the right to pledge its rights under this Lease
in one or more successive leasehold mortgages to secure any indebtedness borrowed by TSA for
the construction of the Project or any subsequent improvements by TSA during the term of this
Lease. No more than two leasehold mortgages may be in effect at any time, but the term of any
such leasehold mortgages can be renewed, extended and modified from time to time as required
by TSA and its lenders. TSA shall provide written notice to the City of any such leasehold
mortgages, the name of the lenders and addresses for notice purposes, the loan amount, and the
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terms of the loans prior to the creation of any such leasehold mortgages. Any such leasehold
mortgagees shall be entitled to the rights and benefits as provided in this Lease for any leasehold
mortgagee.
15. Sanitation. Garbage and trash must be stored on the Aquarium Property in normal
containers or dumpster type containers inside a screened or appropriately landscaped area.
Garbage pick-up service must be obtained by TSA on a schedule sufficient to maintain the
Aquarium Property in a clean and sanitary condition.
16. Parking. Parking shall be provided pursuant to one or more leases of the adjacent
parking lot subject to the covenants of the Certificates of Obligation issued for construction of the
parking lot. The City and TSA agree to negotiate in good faith for the addition of the parking lot
to the Aquarium Property during the term of this Lease. The City and TSA will request TxDOT
to declare the property that is currently leased from TxDOT,and subleased to TSA for the parking
lots, to be surplus property, appraised and conveyed by TxDOT to the City for resale by the City
to TSA.
17. Nondiscrimination. TSA is and will continue to be an equal opportunity employer
and hereby covenants that no employee or customer will be discriminated against because of race,
creed, color, sex,disability,or national origin.
18. Inspection. City personnel may enter upon the Aquarium Property, including all
improvements thereon, at all times, for purposes of any inspection, repair, fire or police action,
and the enforcement of this Lease.
19. Contractor's Insurance. During this Lease, TSA shall require all contractors
employed for the construction of the Project,and all other Aquarium improvements or additions,
to maintain at the contractor's sole expense (and provide documentation thereof prior to
commencement of construction): insurance coverage throughout the construction period in at least
the following amounts:
(a) commercial general liability insurance, with TSA and City named as Additional
Insureds. Such coverage must have either a minimum liability limit of$1,000,000 per
occurrence and $2,000,000 aggregate. Additional Insured Endorsement must be
provided with Certificate of Liability Insurance
(b) automobile liability insurance, with $1,000,000 combined single limit.; TSA and the
City shall be listed as an additional insured on the policy.
(c) Workers' Compensation insurance covering all employees of TSA's contractor(s)and
subcontractor(s) engaged in any work at or on the Aquarium Property, or TSA's
contractor(s) and subcontractor(s) must be a "Certified Self-Insurer" as that term is
defined in Chapter 401 of the Texas Labor Code, as it may be amended ("Approved
Equivalent"). If an Approved Equivalent to Workers'Compensation for compensating
injured employees is utilized a current copy of each contractor and subcontractor policy
must be kept on file with the City Secretary's copy of this Lease, incorporated and
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attached as Exhibit D. Any time such policy is revised, the newest revision becomes
the attached and incorporated Exhibit D. If Workers' Compensation insurance is
provided, a certificate of insurance must be provided, together with notice of
cancellation,non-renewal,or material change as set out in Section 20 herein. A waiver
of subrogation shall be provided on behalf of TSA and the City;
(d) builder's risk insurance written on an all risk basis with valuation at replacement cost
for the full value of improvements will be required on construction projects estimated
to cost more than Two Hundred Fifty Thousand Dollars($250,000);
(e) performance and payment bonds for the full value of the contract are required on
projects estimated to cost more than One Hundred Thousand Dollars ($100,000).
20. Texas State Aquarium Insurance. TSA shall obtain at its own expense:
(a) commercial general liability insurance, with City named as Additional Insured. Such
coverage must have minimum liability limit of $1,000,000 per occurrence and
$2,000,000 aggregate.
(b) automobile liability insurance, with liability limits of $1,000,000 combined single
limit. The City shall be listed as an additional insured on the policy.;
(c) Workers' Compensation insurance or its approved equivalent, covering all employees
of TSA engaged in any work at or on the Aquarium Property. If an approved equivalent
to Workers' Compensation for compensating injured employees is utilized a current
copy of TSA's policy must be kept on file with the City Secretary's copy of this Lease,
incorporated and attached as Exhibit D. Any time such policy is revised, the newest
revision becomes the attached and incorporated Exhibit D. If Workers' Compensation
insurance is provided,a certificate of insurance must be provided,together with notice
of cancellation,non-renewal,or material change as set out in this Section 20 herein. A
waiver of subrogation shall be provided.
(d) property insurance, throughout the term of this Operating Lease, in the amount of no
less than 80% of the full replacement value of all TSA real and personal property on
an "all risk basis" subject to normal and customary exclusions, however, the flood
insurance requirement may be limited to the maximum available through the Federal
Flood Insurance Program;provided,however, if excess flood insurance is available in
the standard insurance market, TSA will provide no less than 50%of the coverage set
out above. Further provided,however, that the windstorm insurance requirement may
be limited to the maximum available through available markets;provided,however, if
excess windstorm insurance is available in the standard insurance market, TSA will
provide no less than the 80%coverage set out above.
TSA shall provide City Manager with evidence of insurance coverage annually within thirty(30)
days of the anniversary of each such insurance policy. Such insurance must contain a provision
that it may not be canceled or materially changed or not renewed without thirty days written notice
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to the City Manager. If TSA fails to maintain such insurance,City may terminate this Lease,or at
its option procure such insurance, in which case any monies paid by City must be repaid by TSA
upon City Manager's written demand,with interest at the maximum permissible legal rate.
TSA shall decide whether to repair, rebuild, or replace any damaged property. If TSA
decides to repair, restore, or rebuild, it shall develop plans and specifications as appropriate, and
submit them to the City Manager for approval,which approval shall not be unreasonably withheld
and shall be granted or denied within thirty(30)days of any request by TSA. If TSA determines
not to repair,rebuild, or replace the property, all insurance proceeds remaining after the payment
of the indebtedness to any leasehold mortgagee shall be paid to the City up to but not in excess of
its unpaid obligations under this Lease. Any excess insurance proceeds may be retained by TSA.
Further, TSA shall have the option, but not the requirement, to participate in the City Property
Insurance program when such participation is deemed beneficial to the Aquarium. Should this
option be exercised,As the named insured on the property policy,TSA shall pay the City for their
portion of the insurance coverage billed by the City. Property damage caused by an insurable peril
above the established deductibles shall be reported to the City's Risk Management Division. The
City shall submit all claims to City's Insurance Agent/Broker who will in turn,notify the necessary
property insurance carriers of the damage. The City shall be responsible for the coordination of
all claims with the carrier(s).
In the event of a large property loss, the City, as the named insured will receive disbursement of
payment from the insurance carrier(s)and then disburse accordingly.
21. Indemnity. Hold Harmless and Waiver of Subrogation. TSA agrees to indemnify,
defend and hold harmless the City, its officers, employees, and agents against any and all
liability, damage, loss, claims, demands, suits, and causes of action of any nature whatsoever on
account of personal injuries, property loss or damage, or any other kind of damage, including all
expenses of litigation, court costs, and attorney's fees, which arise out of or are in any manner
connected with, or are claimed to arise out of or be in any way connected with, TSA's
performance under this Lease or TSA's or any of its agents', employees', officers', or invitees'
use, operation, or occupancy of the Aquarium Property or the Aquarium. TSA and City shall
mutually agree to waive any rights of subrogation to each other as respects insurance claims,
injuries, or property damage. TSA shall at its own expense investigate all such claims and
demands,attend to their settlement or other disposition, defend all actions based thereon,and pay
all charges of attorneys and all other costs and expenses of any kind arising from any such
liability,damage, loss,claims, demands, and actions.
22. Access for Individuals With Disabilities. The Aquarium and all improvements
thereto must be constructed to be readily accessible to individuals with disabilities and in
compliance with all applicable state and federal laws.
23. Utilities. City has made sewer, water, and natural gas service available to the
Aquarium Property, at standard rates offered by City for comparable users. TSA must pay for all
utility services whether provided by City or another supplier. TSA will make every effort to
establish itself as a utility conservation leader,particularly in the area of adaptive water re-use.
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24. Compliance With Laws. Permits. In the planning, design, construction, and
operation of the Aquarium and future improvements, TSA shall comply with all applicable
federal, state, and local laws, ordinances, rules and regulations. All applicable permits and
licensees must be obtained by TSA. City shall cooperate in obtaining permits and licenses from
other agencies by applying or joining TSA in applying for such where City is a necessary party t
to the application. TSA shall, however, prepare all documents, information, and materials
necessary to support any such application. TSA recognizes that as to City licenses or permits,
City must apply its rules in an objective,uniform manner.
25. City Financial Contribution. City does not assume, and has no other responsibility
whatever for, any financial obligations incurred or created by TSA or its officers, employees or
agents, in connection with the planning, design, financing, construction, equipping, stocking,
establishment, operation, or other activity relating to the Aquarium, and TSA shall not represent
or infer otherwise to any third party.
26. Prior Agreements. The 50-year Lease-Purchase Agreement between City and TSA,
authorized by Ordinance 030345 adopted on November 18, 2014 and dated January 18, 2015
remains in full force and effect, except as inconsistent herewith,until the Commencement date,at
which time it expires automatically. All bond covenants and covenants related to the 1996 Tax
and Revenue Certificates of Obligation or any other financing that was provided to TSA by City
using City's credit, tax base, etc. for the Aquarium remain in full force and effect until said
indebtedness is fully retired. All other prior agreements between City and TSA are of no force
and effect.
27. Lease Relationship. The parties intend to create a landlord/tenant relationship, and
this Lease must be construed conclusively in favor of that relationship. Nothing herein contained
may be deemed or construed by the parties hereto, nor by any third party, as creating the
relationship of principal and agent or of partnership or of joint venture between the parties
hereto, it being understood and agreed that no provision contained herein, nor any of the acts of
the parties hereto,may be deemed to create any relationship between the parties herein other than
that of landlord and tenant.
28. Modifications. No changes or modifications to this Lease may be made, nor any
provision waived, unless in writing signed by a person duly authorized to sign agreements on
behalf of each party. In the event any leasehold mortgages are in effect concerning this Lease-
Purchase Agreement, such changes or modifications also will be subject to approval by any
leasehold mortgagees.
29. Termination of Lease. Upon occurrence of any Event of Default (as defined
below), the City may, at its option, in addition to any other remedy or right hereunder by law,
give notice to TSA's President, and any leasehold mortgagee for which written notice has been
provided to the City pursuant to the terms of this Lease, that unless such Event of Default has
been cured as required herein that this Lease shall terminate upon the date specified in the notice,
which date will not be earlier than sixty (60) days after the giving of such notice. Each of the
following will be deemed an Event of Default:
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(a) failure to have in effect, at all applicable times, policies of contractor's insurance,
liability insurance, workers' compensation insurance or its approved equivalent, and
property insurance as required elsewhere herein;
(b) intentional, knowing, or fraudulent failure to maintain strict and accurate books of
account,or to furnish said books of account to City Manager for inspection,as provided
elsewhere herein;
(c) abandonment of the Aquarium Property;
(d) failure of TSA for a period exceeding 180 days to regularly operate the Aquarium,
open to the public, at least five days per week during reasonable business hours;
provided, however, that there will be subtracted from such calculation of days any
period during which TSA's failure is attributable to acts of God or public enemy, the
elements, fire, flood, labor dispute, civil disturbance, or other similar cause beyond
TSA's control,without the City Manager's prior written approval as an exception;
(e) failure of TSA to correct any default in the performance or observance of any other
covenant or condition of this Lease; or
(f) in the event any securities issued by the City are outstanding that are conditioned
upon TSA's tax-exempt status under Section 501(c)(3) of the Internal Revenue Code
of 1986, as amended, written notice by the Internal Revenue Service that the
exemption of the TSA from federal income taxation under Section 501(c)(3) of the
Internal Revenue Code of 1986 has been finally revoked; provided, however, the
parties agree that in the event this Lease is canceled by reason of such loss of tax
exemption under such Section 501(c)(3),then, in good faith, the parties will negotiate
and execute a lease or management contract which complies with the provisions of
the Internal Revenue Code of 1986, as amended, so that the interest on any securities
issued by City to acquire the Aquarium will not be subject to federal income taxes.
(g) failure to repair or replace,and dedicate a new easement if necessary,that 48-inch storm
water line that Phase II-A of the Aquarium was constructed over, upon the City
Manager's written request,all as provided in Section 38 below.
(h) Provided,however, that in the event curing any of the above Events of Default would
reasonably require more than sixty(60)days,TSA shall have an extension of the time
required to cure such Event of Default for so long as City may reasonably determine
that TSA is proceeding diligently with curing such Event of Default.
30. Leasehold Mortgagee Rights in Event of Default. If notice has been provided to
City of a leasehold mortgage pursuant to the provisions of this Lease and indebtedness remains
secured by such leasehold mortgage, this Lease may not be terminated unless and until the City
has provided a second notice of default after expiration of the time required for cure under the
notice of default provided above and afforded said leasehold mortgagee an additional thirty (30)
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days to cure any such default in the case of any monetary default and an additional sixty (60)
days to cure any such default in the case of any non-monetary default. In any event,this Lease
shall not be terminated if a leasehold mortgage is in place with indebtedness outstanding unless
the City has afforded said leasehold mortgagee the opportunity to assume and assign this Lease,
and arrange for the assumption of this Lease by another qualified tax exempt lessee,pursuant to a
foreclosure of the leasehold mortgage or such other rights as said leasehold mortgagee may have
and comply with the requirements of this Lease. Such opportunity may require additional time
to the notice periods provided above, and for so long as City reasonably determines that the
leasehold mortgagee is diligently proceeding with curing any such Event of Default the time for
curing the Event of Default shall be extended accordingly. Alternatively, the City may, at its
option but without any obligation to do so, pay any remaining indebtedness secured by such
leasehold mortgage and terminate this Lease immediately after providing the initial notice of the
Event of Default as required above. In any event, the City is under no obligation to pay any such
indebtedness, and the full faith and credit of the City is in no way obligated under the terms of
this Lease.
31. City's Rights on Termination. Upon termination of this Lease as hereinabove
provided, or pursuant to statute, or by summary proceedings or otherwise, City may take
possession of the Aquarium Property either by summary proceedings, or by action at law or in
equity,or by force,or otherwise,as City may determine,without being liable in trespass or for any
damages. The foregoing rights and remedies given to the City are, and will be deemed to be,
cumulative of any other rights of the City under law, and the exercise of one will not be deemed
to be an election, and the failure of the City at any time to exercise any right or remedy will not
be deemed to operate as a waiver of its right to exercise such right or remedy at any other future
time.
32. Effect of Termination or Expiration. Upon termination or expiration of this Lease,
the Aquarium Property and all buildings on the Aquarium Property shall become the property of
the City; provided that, TSA shall have the right to remove all furnishings and personal property
placed in such buildings at TSA expense, at TSA's option, at any time until one hundred eighty
days(180)days after termination or expiration of the Lease. If TSA fails to remove such fixtures
and personal property within that time period, such property shall become the property of the
City. Any City monies payable under this Lease which, at the time of termination or expiration,
remain unspent,must be returned to or retained by City and spent by City as it sees fit.
33. Publication Costs. TSA shall pay the cost of publishing in the legal section of the
local newspaper any provisions of this Lease required by the City Charter.
34. Taxes and Assessments. (a) In addition to the foregoing sums, TSA shall, as
further consideration for this Lease, pay and discharge all ad valorem taxes, general and special
assessments, and other charges of every description which during the term of this Lease may be
levied on or assessed against the Lease Premises, including all interests therein, improvements
thereto, or property thereon, whether belonging to the City or TSA or to which either of them
may become liable in relation thereto.
(b) Timely Payment by TSA. TSA agrees to and shall pay all the foregoing ad valorem
11
12
taxes, if any, assessments and charges not less than twenty (20) days prior to the delinquency
thereof, and give written notice of such to Lessor within five (5) days after such payment is
made.
(c) Advance by Lessor. If Lessee fails to pay any such ad valorem taxes or assessments
or fails to give written notice of any payment thereof at least ten (10) days prior to the time the
same becomes delinquent, the City may, at its option, at any time within or after such ten (10)
day period, pay any ad valorem taxes or assessments, together with all penalties and interest
which may have been added thereto. Any such amount so paid by Lessor shall become
immediately due and payable by TSA to the City, together with interest thereon at the highest
rate authorized by law. Any such payment which the City may make pursuant to this Section 34
shall not constitute a waiver of any rights which the City may have under the provisions of this
Lease or as provided by law.
(d) Tax Exemption. Notwithstanding anything to the contrary in this Section 34, the
TSA and the City agree the Lease Premises are exempt from taxation in accordance with the
laws of the State of Texas, and that TSA shall have the full right to administratively or judicially
challenge any tax or assessment levied or attempted to be levied on the Lease Premises. Save
and except to the extent it becomes necessary to pay any tax or assessment to protect the
property and security interests of TSA, the City and any assignee, TSA may, in its sole
discretion, elect not to pay any tax or assessment until such time as the tax or assessment is
determined to be due and owing on the Lease Premises by a final judgment issued by a court of
competent jurisdiction.
35. Notices. Any notices provided for under this Lease must be given in writing, to the
City,by delivering or mailing the notice as follows:
To the City: City Manager
City Hall
P.O. Box 9277
Corpus Christi,Texas 78469-9277
To TSA: Texas State Aquarium Association
2710 N. Shoreline Blvd.
Corpus Christi,Texas, 78402
To Leasehold Mortgagee: [Address to be provided by written notice.]
The parties may from time to time designate new addresses for notice purposes by written notice
pursuant to this provision. All notices will be deemed delivered on the third day after mailed by
prepaid postage in U.S. mail.
36. Captions. Captions employed in this Lease are for convenience only and are not
intended to and do not in any way limit or amplify the terms or provisions herein.
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13
37. Future Additions. Both parties to this Lease recognize that improvements to the
Aquarium Property may be required from time to time in order to maintain a state of business
which produces adequate funds to meet the debt service requirements of this Lease. For interior
construction that does not involve a structural change and for incidental exterior construction
(e.g. sidewalks, open air structures) the President has the authority to undertake such
improvements, subject to compliance with applicable City building codes and regulations,
without prior City Manager approval. For interior construction that does involve a structural
change, for exterior construction that involves changing the footprint of the existing Aquarium,
or for additional structures (e.g. new phases) that are desired by TSA, plans and specifications
shall be submitted by TSA to the City Manager for City Manager's approval which will not be
unreasonably withheld.
38. Storm Water Line. The parties acknowledge that Phase II-A of the Aquarium
facility was constructed over a 48-inch storm water line that is the major storm drain for the
south end of North Beach. The City agreed to continue to maintain the storm drain and water
inlet regulator. The parties further acknowledge that parts of the Caribbean Building also may be
built over the 48-inch storm water line. If the storm water line within the Aquarium Property
needs to be repaired or replaced, TSA shall pay for all costs associated with repair or
replacement, including granting any additional easement needed to relocate the storm water line.
The City Manager will make written demand to the President for repair or replacement of the
storm water line within the Aquarium Property and set a reasonable time frame to accomplish
same. Failure to repair or replace, or at least begin to repair or replace, within the time frame set
out by the City Manager is grounds for City to terminate this Lease. City does not warrant the
48-inch storm water line,and the construction by TSA of any improvements over the 48-inch storm
water line is expressly at its own risk.
39. Representations; Cooperation. TSA acknowledges and agrees that the Aquarium
Property and all improvements thereon, or to be constructed thereon, are leased by City to TSA,
and are accepted by TSA "AS IS", in their current condition and appearance, and without any
warranties by City, expressed or implied, with respect to appearance, condition, defects,
habitability, fitness for any specific purpose, or the availability of access. TSA agrees that TSA
is not relying and will not rely on any statement, covenant,representation, or warranty pertaining
to any of the matters described in this paragraph which is not expressly set forth in this Lease.
City and TSA shall cooperate to enforce all warranties and causes of action available to either
party against third parties arising out of or in any way related to this Lease.
40. Options to Purchase. In consideration of the timely performance by TSA of each
and all of its obligations pursuant to this Lease-Purchase Agreement, including,but not limited to,
the financing, design and construction of the Project in compliance with Section 4 above, the
payment of all the debt service on the 1996 $4.4 million Combination Tax and Revenue
Certificates of Obligation in compliance with Section 12 above, TSA shall have the option to
purchase the City's interest in this Lease and the Lease Premises, as follows:
(a) Option to Purchase at Expiration of Lease Term. Upon the expiration of this
Lease-Purchase Agreement and TSA having timely performed all of its
obligations under this Lease-Purchase Agreement as above provided, TSA shall
13
14
have the option to purchase the City's interest in this Lease and the Lease
Premises for the additional sum of Ten Dollars ($10.00), provided: (i) Lessee is
not in default under the Lease; (ii)Lessee gives notice to the City of its intention
to exercise this option within sixty (60) days from the expiration date of this
Lease, and (iii) City is provided a Special Warranty Deed, containing the
provisions set forth in Section 41 below and in form and content otherwise
acceptable to the City, with directions for delivery of the Special Warranty Deed
by the City to TSA; and (iv) Lessee complies with all applicable laws concerning
acquisition of the Lease Premises.
(b) Early Option to Purchase. In consideration of the performance by TSA of all of its
obligations under this Lease-Purchase Agreement and the payment to City in full
of the funds required to be paid under this Lease, TSA shall have the option to
purchase the Lease Premises from City upon the terms and conditions set forth in
this subsection 40(b). This early option to purchase may be exercised at any time
after the later of(a) expiration of 7(seven)years from the Commencement Date of
this Lease,or (b) when the tax- exempt certificates allocated to the Rescue
Center(or any obligations issued to refund such certificates)are no longer
outstanding. TSA may exercise this option by providing at least sixty (60) days'
written notice to City of its intention to exercise the option on the following terms:
i. The consideration for the sale shall be the payments and performance above
provided and the additional sum of $100.00, and TSA's acceptance of a
covenant running with the land, as provided in Section 41 below, to continue
the operation of the Aquarium Property as an aquarium and sea life park in the
manner required under Section 3 above.
ii. Any survey, title insurance, title searches or similar closing expenses shall be
at the sole cost and expense of TSA.
iii. Closing of the purchase and re-acquisition of the Aquarium Property shall occur
at the offices of a title company selected by TSA or at City's offices as
designated in the notice of exercise of the option provided by TSA.
iv. The Aquarium Property shall be conveyed by City to TSA"AS IS" in its then
existing condition, subject to those matters of record as set forth in the deeds
obtained by City when it acquired the Aquarium Property, without any
warranties or representations of City whatsoever except for the limited
warranty of title provided in the form of special warranty deed promulgated by
the State Bar of Texas.
v. No brokerage fees or commissions shall be due or owing to any party arising
from the transaction.
vi. The Aquarium Property conveyed specifically shall exclude any parking lots
being leased by City from the State of Texas and subleased to TSA
14
15
vii. The Lease Premises will be conveyed to TSA by the City by a Special
Warranty Deed containing the provisions set forth in Section 41 below, and in
form and content otherwise acceptable to the City.
Upon the closing of the purchase under either of Subsection 40(a) or 40(b), this Lease shall
terminate and be of no further force or effect, and the parties shall be released from all
obligations hereunder; provided that, TSA shall have the continuing obligation to fund, operate
and maintain the Lease Premises for the purposes set forth in this Lease, as provided in this
Lease,and nothing in this section shall be construed as releasing TSA from its obligations under
the deed to continue operation of an aquarium and sea life park as provided above.
41. Special Warranty Deed. Upon TSA's exercising its option to purchase in
compliance with the terms and conditions of this Lease-Purchase Agreement, the City shall
convey the Lease Premises to TSA by Special Warranty Deed. In addition to other terms and
conditions acceptable to the City, the Special Warranty Deed shall contain and include the
following provisions:
(a) Right of First Refusal. If TSA shall decide to sell the above described property to
a third party on established terms and conditions acceptable to TSA, TSA shall
first offer the property to the City for the price and on the same terms and
conditions as are offered by the third party. The City shall have ninety (90) days
from the date of the offer to the City in which to accept or reject the offer. In
connection with any such exercise of this right of first refusal by the City, the City
shall be entitled to a credit against the purchase price equal to the $14,5000,000
bond indebtedness issued by the City in connection with the initial construction of
the Aquarium. This right of first refusal shall inure to the benefit of City, and the
City's successors, representatives, and assigns, and shall continue in full force and
effect for a period of seventy-five (75) years from and after December 31, 2014,
and at the expiration of that period shall be of no further force or effect. In the
event that the City elects not to exercise the right of first refusal, the City shall be
repaid the $14,5000,000 bond indebtedness issued by the City in connection with
the initial construction of the Aquarium out of the sales price. Nonetheless, the
City Council may agree to subordinate this $14,500,000 repayment obligation to
future specified mortgage indebtedness.
(b) Subordination to Caribbean Building Mortgage Indebtedness. The obligations of
TSA to reimburse the $14,500,000 bond indebtedness to the City shall be
expressly subordinate to the obligations for payment of mortgage indebtedness
incurred by TSA pursuant to the terms and conditions of this Lease-Purchase
Agreement for the construction of the Caribbean Building Project. Such
subordination shall be included in the Special Warranty Deed provided above and
identify the leasehold mortgages, if any remain in effect at such time, by date and
recording information.
(c) Restrictive Covenant. The above described property shall be used, occupied and
15
16
maintained solely as an aquarium and sea life park ("Aquarium"); provided,
however,that Grantee may operate food,drink,souvenir,and such other concessions
as the Grantee may deem consistent with, but secondary to, operation of the
Aquarium, including without limitation participating in fundraising activities; and
provided further that if the property is damaged by fire,storm or other event beyond
Grantee's control the Grantee shall not be in violation of this Restrictive Covenant
so long as Grantee is taking such action as is necessary to finance, design, rebuild,
reconstruct or repair the damages to the property in a timely manner. This restrictive
covenant shall expire on December 31, 2089.
(d) Utility Easements. The City shall have the right to reserve in the Special Warranty
Deed utility easements as needed to accommodate public utilities maintained in
areas being conveyed to TSA.
(e) Storm Water Line. The obligations of TSA in Section 38 above concerning the 48-
inch storm water line shall be continued in the Special Warranty Deed unless TSA
has relocated such storm water line into a new easement without any
encroachments of TSA improvements.
(f) Reverter Clause. If TSA violates the above and foregoing Restrictive Covenant,
after the lapse of sixty (60) days' written notice and the opportunity to cure such
violation the ownership and title to above described property and all improvements
and fixtures thereon shall revert to the City immediately upon the City giving TSA
written notice of reversion.
16
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EXECUTED in duplicate originals this J lay of 1\1onri) , 2021, by duly
authorized representatives of the parties.
Attest: City of Corpus Christi,Texas
By: k By: La--. a ,A -dues,
Rebecca Huerta, City Secretary Name: C G s TA ti, c E P
Title: CH iiF 4L OFCc2
v
j�, ,O 5' ,Au 1�i11�iULy
Legal form approved on Dec,evvv ,2021. I w�; ag4t
iY COUNCIL
By SEGREfARY
ssistant City Attorney
Texas State Aquarium ssociation
By:
Thomas H. Schmid, President& CEO
Acknowledgements
STATE OF TEXAS §
COUNTY OF NUECES §
This instrument was acknowledged before me on the DC*'ptoQr )S 2.0 Z) ,
2021,by Thomas H. Schmid,as President&CEO of the Texas State Aquarium Association,a Texas
non-profit corporation, on behalf of said corporation.
NICOLE ANDRADE
at/Vjlagt-C4-
Tirb My Notary ID#126814223 Notary Public, State of Texas
° •vExpires February 23,2025
17
18
STATE OF TEXAS §
§
COUNTY OF NUECES §
This instrument was acknowledged before me on the 30.E 3\ , a ,
2021,,by COINS4Ckr\&S6pdAbaS OW Firgr(,jV\ ACP( of the City of Co us Christi, a Texas
municipal corporation, on behalf of said corporation.
ti.);`,..-7:\`'''''‘
o�PR �a�, SARAH J BRUNKENHOEFER> Notary Public, State of Texas
r(��7'\ ID# 12954066-5
1 Nf `* }� Notary Public >
"90FJ My CommTEOF TEXAS
Exp. 08-28-2025 >
VO�ivvvvvvv v
19
Exhibit 1
Actions related to land acquisition for Aquarium:
30 year lease from Port Authority of Corpus Christi, authorized by Ordinance No. 19619
on January 27, 1987
Resolution authorizing the condemnation of 8 tracts, authorized by Resolution 20214 on
February 16, 1988
Multiple Use Agreement with Texas Department of Transportation to allow parking under
the SH 181 bridge adjacent to TSA
Closing and abandoning N. Shoreline from Canal Street to 200 feet North of Bennett Street,
portions of Canal Street, Surfside, and Bennett Streets, subject to a replat, authorized by
Ordinance No. 20244, on March 15, 1988
Acquisition of Parcel 15, authorized by Resolution No. 20353 on June 21, 1988
Acquisition of Parcels 1 and 10,authorized by Motion No. M87-0215 on June 2, 1987
Acquisition of Parcel 12, authorized by Motion No. M87-0284 on August 11, 1987
Acquisition of Parcel 16, authorized by Motion No. M87-0364 on November 3, 1987
Authorizing acquisition of Parcels 2, 3, 4, 5, 6, 7, 8, 11, 15, and 16 by Condemnation by
Resolution No. 19941 on August 25, 1987
Acquisition of Parcels 5 and 6,authorized by Motion No.M88-0038 on February 16, 1988
Acquisition of Parcel 7,authorized by Motion No. M88-0055 on March 15, 1988
Acquisition of Parcel 4, authorized by Motion No. M88-0066 on March 22, 1988
Acquisition of Parcels 2 and 3, authorized by Motion No. M88-0120 on May 24, 1988
Acquisition of Parcels 13 and 14, authorized by Resolution 20147 on January 5, 1988
Acquisition of Lots 3, 4, 5, and 6, Block 69, Beach Portion authorized by Resolution No.
20210 on February 16, 1988
Acquisition of Parcel 15, authorized by Resolution No. 20353 on June 21, 1988
Page 1 of 3
20
Acquisition of Parcel 11, authorized by Motion No. M88-0078 on April 5, 1988
Acquisition of Parcel owned by Helen Royal, authorized by Resolution No. 20346
on June 21, 1988
Actions related to parking Lot A for Aquarium:
- Multiple Use Agreement with Texas Department of Transportation to allow parking under
the SH 181 bridge adjacent to TSA
5 year parking lease with TSA for parking lots A, B, C authorized by Ordinance No.
021839 on December 21, 1993
- Contact between City and TSA to construct a parking lot, issue Certificates of Obligation,
set out payment obligations, etc., authorized by Motion No. M89-0344 on November 28,
1989
Contract between City and Haas Construction Co.for paving streets,parking lots,bus loop,
irrigation, and landscaping improvements, authorized by Resolution No. 020852 on
December 19, 1989
Actions related to financing for Aquarium
- Ordinance No.020309 authorizing Tax and Tax Increment Financing Revenue Certificates
of Obligation on
- Ordinance No. 020488 amending Ordinance No. 020309, which authorized Tax and TIF
Revenue Certificates of Obligation, on October 4, 1988
Ordinance No. 020166 amending Re-Investment Zone No. 1 contracts with various
governmental agencies to provide financing for improvements to Aquarium and the Corpus
Christi Museum of Natural History on January 19, 1988
Resolution 020169 on January 19, 1988
- Ordinance No. 019674 authorized a purchase agreement and Management contract which
set out duties, rights, obligations of City and TSA to construct and operate the Aquarium
on June 15, 1987
Page 2 of 3
21
Actions related to construction in area around Aquarium:
Award of construction contract for Waterfront Improvements to Garrett Construction
Company, authorized by Motion No. M88-0050 on March 8, 1988.
Acceptance of Waterfront Improvements by Garrett Construction Co.,authorized by M88-
0271 on December 20, 1988.
Award a Wastewater Line Construction Project to King Isles, authorized by Motion No.
M89-0071 on March 14, 1989.
Award an infrastructure contract to King Isles, authorized by Motion No. M89-0226 on
August 15, 1989.
Award a contract to remove a leaking underground petroleum storage tank to Genesis
Environmental,authorized by Motion No. M90-094 on April 10, 1990.
Page 3 of 3
22
Exhibit A
Texas State Aquarium Subdivision, Lot G, as recorded in Volume 68 Page 856, Nueces County
Clerk Records.
1.27
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d 68 57
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' _ � ! '' IAQAR UM.
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Subdivision
i�.
Lot G
`` ,-ya, I 1 .i.4.--,:=4"4 Ming -plot of lots A-1.0.C ono O.T..0.
Scot. Aquarium SuboAYon. map of .hkh
'`If 4,.,t�,a ''� /f ..aaraw varum. x. P09.. 117-1113, Map
y�?!''��Za� .`I l . -c Row&.of Ammo Count/ Toms. and lot A-3.
' ^� ..:%. i� .v -�J \ Tams SIN.�um4m SAdotAon.a mop of.hid,
� Y �r`1 I' ncv.d.E Volume 60. popes l35-136.Mop
—__---�'y �. i i �``��'.r /'.# R.00,4n of Nwc..Cpunb.Toms.
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ENG,NESPING PEEP pale
'FS'A;Pf l 1.O�R-Aw BY:**
23
Exhibit B
Property located at 4901 Rincon Rd., Corpus Christi, Texas, which includes BROOKLYN
ACREAGE 124.78 ACS OUT OF W. E. POPE TR.
2 of :
1
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• . ..1 ..ua. PORT OP CORPUS CHRISTI Amon=
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(:...: 1
1E483 STATE AQUA/ION ASSOCAUOR. WC.
�//�/ cloRtsit 2.18 Nam LEASE
E l+IgIr a
24
DESCRIPTION OF SEALAB IMPROVEMENTS:
The subject consists of four(4)metal frame buildings on concrete slab. The buildings are
connected together and have a metal exterior and roof with overhead doors and pedestrian doors
in each.
Building#1 contains 5,750 square feet and is utilized as an office/laboratory facility with+/-
80%of the space as office and+/-20%laboratory space.
Building#2 is a high bay metal building containing 3,150 square feet with a 24 foot eve height.
It has two 12'x 14'overhead doors and two pedestrian doors that lead outside.
Building#3 is similar to Building#2 and contains 3,000 square feet but has an eve height of 14
feet. It is a warehouse building with no interior finish and is utilized primarily to house an
observation tank for large marine animals. It has one 12'x 14'overhead door and a pedestrian
door.
Building#4 is a metal warehouse building containing 1,666 square feet with an eve height of 10
feet. The building is being utilized as locker/restroom facilities for youth groups that use
the facilities for educational purposes and field trips.
The site is perimeter fenced and has approximately 37,17 5 square feet of asphalt paving.An in-
ground,concrete tank measuring 45 feet wide by 185 feet long with a depth of 7 feet is located
near the entrance of the property.
25
Exhibit C
ne
40.011111"4.
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26
Exhibit D
I. TEXAS STATE AQUARIUM(TSA)LEASE INSURANCE REQUIREMENTS
A. TSA must not commence work under this agreement until it has obtained all insurance
required herein and such insurance has been approved by the City. Nor may TSA allow
any subcontractor to commence work until all similar insurance required of the
subcontractor has been so obtained.
B. TSA must furnish to the City's Risk Manager 2 copies of Certificates of Insurance, with
the City named as an additional insured for all liability policies, and a blanket waiver of
subrogation on all applicable policies, showing the following minimum coverage by an
insurance company(s)acceptable to the City's Risk Manager.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30-Day Notice of Cancellation required on all Bodily Injury and Property Damage
certificates
Commercial General Liability including: $2,000,000 COMBINED SINGLE LIMIT
1. Commercial Form
2. Premises—Operations
3. Products/Completed Operations Hazard
4. Contractual Insurance
5. Broad Form Property Damage
6. Independent Contractors
7. Personal Injury
AUTOMOBILE LIABILITY--OWNED NON- $1,000,000 COMBINED SINGLE LIMIT
OWNED OR RENTED
WORKERS'COMPENSATION WHICH COMPLIES WITH THE TEXAS
WORKERS'COMPENSATION ACT AND
PARAGRAPH II OF THIS EXHIBIT
EMPLOYERS'LIABILITY $100,000
PROPERTY INSURANCE No less than 80%of full replacement cost coverage for
1. All Risk coverage to include Windstorm, all TSA real and personal property
Hurricane and Hail and Flood Insurance
In the event of accidents of any kind,TSA must furnish the Risk Manager with copies of all reports
of such accidents at the same time that the reports are forwarded to any other interested parties.
27
II. ADDITIONAL REQUIREMENTS
A. TSA must obtain workers' compensation coverage through a licensed insurance company
or through self-insurance obtained in accordance with Texas law. If such coverage is
obtained through a licensed company,the contract for coverage must be written on a policy
and endorsements approved by the Texas Department of Insurance.
If such coverage is provided through self-insurance,then within 10 calendar days after the
date the Contract Administrator or his designee requests that TSA sign the contract
documents,TSA must provide the Risk Manager with a copy of its certificate of authority
to self-insure its workers' compensation coverage, as well as a letter signed by the TSA
stating that the certificate of authority to self-insure remains in effect and is not subject to
any revocation proceeding then pending before the Texas Workers' Compensation
Commission. Further, if at any time before final acceptance of the Work by the City,such
certificate of authority to self-insure is revoked or is made the subject of any proceeding
which could result in revocation of the certificate, then TSA must immediately provide
written notice of such facts to the City,by certified mail,return receipt requested directed
to City of Corpus Christi, Legal Department, P.O. Box 9277, Corpus Christi, TX 78469-
9277 -Attention: Contractor Administrator.
Whether workers' compensation coverage is provided through a licensed insurance
company or through self-insurance,the coverage provided must be in an amount sufficient
to assure that all workers' compensation obligations incurred by TSA will be promptly
met.
B. Certificate of Insurance:
* The City of Corpus Christi must be named as an additional insured on the liability
coverage,except for the Workers' Compensation coverage and a blanket waiver of
subrogation on all applicable policies.
* If your insurance company uses the standard ACORD form,the cancellation clause
(bottom right) must be amended by adding the wording "changed or" between
"be" and "canceled", and deleting the words, "endeavor to", and deleting the
wording after"left".
* The name of the project must be listed under"Description of Operations"
* At a minimum, a 30-day written notice of change or cancellation is required.
C. If the Certificate of Insurance on its face does not show on its face the existence of the
coverage required by items 1.B (1)-(7), an authorized representative of the insurance
company must include a letter specifically stating whether items 1.B. (1)-(7) are included
or excluded.
III. A completed Disclosure of Interest must be submitted with your proposal.
28
Exhibit E
FORM OF CERTIFICATION FOR PAYMENT
(Certification for Payment—Rescue Center)
CERTIFICATION FOR PAYMENT FORM NO.
The undersigned [(the"Construction Manager")/("TSA"] requests
payment from The City of Corpus Christi(the"City")in the amount of$
for labor,design,materials, fees, and/or other general costs related to the acquisition or
construction of certain authorized improvements to the Rescue Center.
In connection with the above referenced payment, [the Construction Manager/TSA]
represents and warrants to the City as follows:
1. The undersigned is a duly authorized officer of[the Construction Manager/TSA],is qualified
to execute this Certification for Payment Form No. on behalf of [the Construction
Manager/TSA], and is knowledgeable as to the matters set forth herein.
2. The work described in Attachment A has been completed in the percentages stated therein.
3. The Certification for Payment for the below referenced Authorized Improvements has not
been the subject of any prior Certification for Payment submitted for the same work to the
City or,if previously requested,no disbursement was made with respect thereto.
4. The amounts listed for actual costs of the authorized improvements,as set forth in Attachment
A, is a true and accurate representation of the actual costs associated with the acquisition,
design or construction of said Authorized Improvements.
5. [Attached hereto as Attachment B is a true and correct copy of a bills paid affidavit
evidencing that any contractor or subcontractor having performed work described in
Attachment A has been paid in full for all work completed through the previous Certification
for Payment.][Include bracketed language if final progress payment for such Authorized
Improvement]
6. Attached hereto as Attachment C are invoices,receipts,purchase orders,change orders,and
similar instruments, which are in sufficient detail to allow the City to verify the actual costs
for which payment is requested.
(Signature pages follow)
29
I hereby declare that the above representations and warranties are true and correct.
[
a[Texas] [limited liability company],as
CONSTRUCTION MANAGER/Texas State
Aquarium Association,a Texas nonprofit
corporation]
By:
Name:
Title:
JOINDER OF PROJECT ENGINEER
The undersigned Project Engineer joins this Certification for Payment solely for the purposes of
certifying that the representations made by [Construction Manager/TSA] in Paragraph 2 above
are true and correct in all material respects.
By:
Name:
Title:
Date:
APPROVAL OF CERTIFICATION FOR PAYMENT
The City is in receipt of the attached Certification for Payment Form No. ,
acknowledges the Certification for Payment and otherwise finds the Certification for Payment
Form No. to be in order. After reviewing the Certification for Payment Form,the City
approves the Certification for Payment Form No. and shall release payment from [the
appropriate account] to [the Construction Manager/TSA] or to any person designated by the
[Construction Manager/TSA].
CITY OF CORPUS CHRISTI,TEXAS
By:
Name:
Title:
Date:
30
ATTACHMENT A TO CERTIFICATION FOR PAYMENT FORM NO.
Segment Description of Work Completed under Actual Costs
this Certification for Payment
ATTACHMENT B TO CERTIFICATION FOR PAYMENT FORM NO.
[Include Attachment B bracketed it final progress payment for such Authorized
Improvement]
[bills paid affidavit and release of liens- attached]
ATTACHMENT C TO CERTIFICATION FOR PAYMENT FORM NO.-----
[Include invoices, receipts, purchase orders, change orders, and similar instruments, which are in
sufficient detail to allow the City to verify the actual costs for which payment is requested]