1.0 PURPOSE Park Land Improvement Agreement Between The City of Austin, Texas and Austin Parks Foundation and C3 Presents, LLC 1.1 This Agreement ("Agreement") is entered into by the City of Austin ("City"), a home rule municipality, through its Parks and Recreation Department ("PARD"), the Aus ti n Parks Foundation, a Texas non-profit Austin Parks Foundation ("Foundation"), and C3 Presents, L.L.C. a Texas Limited Liability Corporation ("C3") for the purpose of renovating and improving certain City park land. 1.2 The renovations and improvements provided for in this Agreement concern Auditorium Shores, urban parkland owned by the City and a major outdoor venue. The high-volume use of Auditorium Shores has caused site degradation that necessitates improvements to park infrastructure and park landscaping. The renovations and improvements provided for in this Agreement focus on the following areas of Auditorium Shores (a) Event Lawn and Middle Lawn, (b) Off-Leash Area, and (c) Ann and Roy Butler Hike and Bike Trail. 1.3 Concurrent with the renovations and improvements provided for in this Agreement, th e City of Austin will construct a re-aligned portion of the Ann and Roy Butler Hike and Bike Trail (as shown on Exhibit B). This re-alignment will begin before the start of the Off -Leash Area and Auditorium Shores Event Lawn improvements. After the Off-Leash Area and Auditorium Shores Event Lawn improvements are complete, trail sections impacted by the scope of this Agreement will be renovated. The re-alignment will be performed and funded by the City. 1.4 This Agreement is entered into for the additional purpose of obtaining an Event Impact Analysis that will be created by TUR Partners. 2.0 DEFINED TERMS. 2. 1 Construction in Parks Specifications means the construction standards included in Exhibit I as amended or waived in writing by PARD from time to time for purposes of this Agreement and/or the construction of the Project. 2.2 Design Consultant means the City's design consultant, TBG Partners, pursuant to its contract with the City. 2.3 Design Documents means the specifications, site plan, and construction documents created by the Design Consultant. 2.4 Effective Date means the date this Agreement is last signed by Foundation, C3, or the City. Page 1 of 17
Transcript
1.0 PURPOSE
Park Land Improvement Agreement Between The City of Austin, Texas
and Austin Parks Foundation
and C3 Presents, LLC
1.1 This Agreement ("Agreement") is entered into by the City of Austin ("City"), a home rule municipality, through its Parks and Recreation Department ("PARD"), the Austin Parks Foundation, a Texas non-profit Austin Parks Foundation ("Foundation"), and C3 Presents, L.L.C. a Texas Limited Liability Corporation ("C3") for the purpose of renovating and improving certain City park land.
1.2 The renovations and improvements provided for in this Agreement concern Auditorium Shores, urban parkland owned by the City and a major outdoor venue. The high-volume use of Auditorium Shores has caused site degradation that necessitates improvements to park infrastructure and park landscaping. The renovations and improvements provided for in this Agreement focus on the following areas of Auditorium Shores (a) Event Lawn and Middle Lawn, (b) Off-Leash Area, and (c) Ann and Roy Butler Hike and Bike Trail.
1.3 Concurrent with the renovations and improvements provided for in this Agreement, the City of Austin will construct a re-aligned portion of the Ann and Roy Butler Hike and Bike Trail (as shown on Exhibit B). This re-alignment will begin before the start of the Off-Leash Area and Auditorium Shores Event Lawn improvements. After the Off-Leash Area and Auditorium Shores Event Lawn improvements are complete, trail sections impacted by the scope of this Agreement will be renovated. The re-alignment will be performed and funded by the City.
1.4 This Agreement is entered into for the additional purpose of obtaining an Event Impact Analysis that will be created by TUR Partners.
2.0 DEFINED TERMS.
2. 1 Construction in Parks Specifications means the construction standards included in Exhibit I as amended or waived in writing by PARD from time to time for purposes of this Agreement and/or the construction of the Project.
2.2 Design Consultant means the City's design consultant, TBG Partners, pursuant to its contract with the City.
2.3 Design Documents means the specifications, site plan, and construction documents created by the Design Consultant.
2.4 Effective Date means the date this Agreement is last signed by Foundation, C3, or the City.
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2.5 Event Impact Analysis means the analysis more fully described in Austin City Council Resolution No. 20120823-072, which is included for reference as Attachment 1.
2.6 MIWBE means minority-owned and women-owned business enterprise ftrms.
2. 7 Milestones means those key Project events that must be completed at critical times during the construction of the Project and more particularly described in Exhibit E.
2.8 Notice to Proceed means the written notice given by the City to Foundation fixing the date on which the Foundation shall start construction activities.
2.9 Park Land means the property owned by the City and located at 700 West Riverside Drive and described more specillcally in Exhibit B and commonly referred to as Auditorium Shores.
2.10 Project means the renovations and improvements as described in Exhibit A.
2.11 Project Budget means the costs to be incurred with respect to the Project, which are described in Exhibit D.
2.12 Project Funds mean the funds provided by the City to the Foundation to pay project costs.
2.13 Project Team means the team of professionals responsible for the work under the Agreement and includes the following: 2.13.1 PARD: Project Management Supervisor, Project Coordinator. 2.13.2 City of Austin Public Works Department: Project Manager. 2. 13.3 Foundation: Executive Director, Contract Manager and Project Manager.
2.14 Schematic Drawing means the drawing, attached as Exhibit C, which illustrates the basic elements of the Project.
2.15 Wage Rate means the City's adopted prevailing wage rates as the wage specified in a Department of Labor (DOL) published wage determination for a particular construction trade in Travis County (Davis Bacon Wage Rates) or as the result of a City wage survey conducted according to DOL established methodology.
3.0 TERM OF AGREEMENT. Unless otherwise terminated by the terms of this Agreement, the parties agree that this Agreement shall be in effect for a term beginning the Effective date through March 31, 2015 except for Section 8, which will be in effect until the earlier of November 1,2017, or the C3 's donations are complete.
4.0 CITY'S RlGHTS.
4.1 The City grants Foundation, its contractors, and subcontractors (including all proposed contractors and subcontractors bidding and performing work on the Project) the right to enter those areas of Park Land, which are generally shown in Exhibit Bas Areas 1, 2, and 3; and a temporary license agreement for access over, under, across, and upon areas shown for the purpose of bidding the Project, pre-construction activities, construction and closeout of the Project. The Temporary Right of Entry and Temporary Access License shall begin
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immediately following Foundation's receipt of the City's Notice to Proceed. The Temporary Right of Entry and Temporary Access License, unless extended in writing by the Director of PARD, shall expire automatically at midnight on the earlier of the date (1) of the City's Final Acceptance, or (2) this Agreement is terminated.
4.2 The City retains the right to inspect without notice pre-construction and construction activities and to exercise its rights or duties in order to protect persons, property, or the public interest in the Park Land.
4.3 The City shall have the right to review and participate in the approval of the procurement process, any committees formed to select contractors, and the final selection of contractors.
4.4 Ownership of Plans and Specifications: Subject to the legal interests of any production professionals, ownership of all Plans and specifications as well as any and all subsequent amendments, studies, reports, or other materials in any way relating to the design and construction of the Project shall vest with the City.
4.5 The Foundation, its contractors, subcontractors, or suppliers do not have the right to place liens on the Park Land, and the Foundation represents it shall pay all lawful debts incurred by it for improvements to the Park Land constructed by on or behalf of the Foundation pursuant to this Agreement.
5.0 PROJECT SCOPE
5.1 The Design Consultant will design the Project; and the City will be responsible for all costs related to the Design Consultant.
5.2 The scope of the Project is set out in Exhibit A, which is attached and incorporated by reference.
5.3 Notwithstanding anything in this Agreement to the contrary, the Foundation shall not be required to award or execute contracts in excess of the Project Budget attached as Exhibit D, unless agreed to in writing by the Foundation. If the costs to construct the Project are determined to exceed the Project Budget, the City and the Foundation agree to make changes to the Design Documents in order to reduce the costs to be within the Project Budget.
5.4 Neither the Foundation nor C3 is responsible for adequacy of the Design Documents or for the compliance of the Design Documents with any and all legal requirements. C3 's only responsibility is the funding of the Project as provided in this Agreement. The City and the Foundation acknowledge that C3 has no responsibility for the design, management, or implementation of the Project, and the Foundation waives any claims against C3 with respect to the design, management, or implementation of the Project.
5.5 The Project Team shall perform a walkthrough inspection for each Milestone for which the Foundation represents is complete.
5.6 The parties agree that the funds donated by C3 as described in Section 8 of this Agreement are to be used solely for the Project and the purposes described in Section 1 of this
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Agreement, except that the funds to be donated directly to the Foundation may be used in any manner agreed upon by C3 and the Foundation. The parties further agree that if the Project is suspended by the City for reasons unrelated to compliance with this Agreement, C3 may suspend its donations until the project is restarted by the City.
6.0 RESPONSIDILITIES OF FOUNDATION
6.1 Foundation shall designate a contract manager to represent the Foundation with regard to performance of this Agreement and shall be the designated point of contact for the City's Contract Manager.
6.1.1 Foundation designates Colin Wallis, whose phone number is (512) 477-1566.
6.1.2 If the Foundation replaces its Contract Manager, the Foundation shall promptly send written notice of the change to the other parties. The notice shall identify a qualified and competent replacement and provide contact information.
6.2 Foundation will provide a monthly written report to the City's Contract Manager no later than twenty (20) calendar days following the end of each calendar month. The report must include information regarding the state and status of the Project regarding tasks, schedule progress, impacts, difficulties, communications, risks, related issues and that information identified in Paragraph 9.1.1.
6.3 Foundation shall hire a project manager ("Foundation PM") and is responsible for costs to manage the Project subject to the terms of this Agreement. Foundation agrees that the City must approve the hiring of a Foundation PM.
6.4 Foundation shall be responsible for bidding and construction of the Project as described in Exhibit A.
6.4. 1 Trade permit applications shall be consistent with the Design Documents created by the Design Consultants.
6.4.2 Foundation agrees that the Foundation PM will acknowledge in writing its receipt of the Design Documents within 7 days of receipt, and will confirm in writing its acceptance of the Design Documents within 7 days of receipt of satisfactory bids based on such Design Documents.
6.4.3 The Project shall be constructed in accordance with the timeline, as defined in Exhibit E, and according to the Design Documents prepared by the Design Consultant and approved by PARD prior to the start of construction. In the event there are changes to the Project's design, the timeline and Milestones will be adjusted accordingly.
6.4.4 Foundation agrees that the City may object to Foundation's contractors if the requirements in Paragraph 6.7 are not followed.
6.4.5 Foundation agrees to require its contractors to create Daily Construction Diaries, as described in Exhibit H.
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6.5 Foundation shall be responsible for securing all trade permits (by way of example but not limitation: building permits, electric permits, and plumbing permits) necessary to construct the Project; and shall be responsible for paying fees associated with the permits described in this Paragraph. Foundation and/or contractors shall coordinate with PARD staff to secure any information in the possession or control of PARD, which is necessary to facilitate the applications for such permits.
6.6 Foundation shall follow all City ordinances, and other rules and regulations regarding pennits and approvals related to activities and construction of the Project, as well as those of any other governmental entity having jurisdiction. Nothing in this Section shall prevent or prohibit Foundation from seeking or securing exceptions from, variances to, or waivers of governmental ordinances, rules, or regulations.
6.7 Foundation shall comply with, and will require its contractors and subcontractors supplying construction labor or materials to the Project to comply with the following City procurement requirements:
6.7.1 The non-discrimination requirements of City Code, Title 5; Worker safety training, prevailing wage rate compliance, and anti-lobbying ordinances, as well as the bonding, procurement and competitive bidding state law requirements applicable to municipalities, which the City would be required to comply with if the City was carrying out the activities and construction of the Project;
6.7.2 The City's prevailing wage requirements, as described in Exhibit J, throughout solicitation of any construction contract or procurement of services relating to the Project pursuant to this Agreement;
6.7.3 Commencing on the Effective Date, with respect to the construction of the Project, Foundation will meet ethnic and gender specific participation goals or demonstrate their good faith efforts using the process described below.
6.7.3.1 Foundation shall solicit participation in the construction of the Project from the City-provided list of certified firms. Foundation may solicit participation from firms not on the list, but only City certified firms can be used toward meeting participation goals or demonstrating good faith efforts.
6.7.3.2 Foundation must comply with the applicable standards and principles of Chapters 2-9A through 2-9D of the City's ordinance for M/WBE's ("M/WBE Program Ordinance") in the construction of the Project.
6.7.3.3 Foundation's agreement to meet the MIWBE goals or demonstrate a good faith effort to meet the M/WBE goals does not require Foundation to modify or amend any contract or agreement Foundation has entered into prior to the Effective Date.
6.7.3.4 Foundation shall provide monthly compliance plan reports to allow the City's Small Business and Minority Business Resources Department to track (A) the
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utilization on a percentage basis of minority-owned and women-owned business enterprise flrms in the construction of the Project; and (B) Foundation's efforts to implement MIWBE Program Ordinance. The reports must be submitted using a form provided by the City.
6.8 Foundation shall also comply with the City's "Construction in Parks Specifications" where applicable to the work performed by the Foundation under this Agreement.
6.9 Upon completion of the Project, Foundation agrees that it shall assign to the City warranties provided by its contractors or any subcontractors for the services rendered and the products provided on the Foundation's behalf under this Agreement.
6.10 Foundation agrees to establish a construction account ("Account") at a federally insured financial institution of Foundation's choice. The funds in the Account may be used only for the purpose of the deposit and withdrawal of Project funds. No other funds may be commingled in the Account. Foundation shall furnish to the City, at the City's request, at any reasonable time, information as the City may request regarding the Account until completion of the Project.
6.11 Foundation shall not discriminate against any contractors or applicants for employment because of race, creed, color, national origin, sex, age, religion, veteran status or sexual orientation. Foundation shall take affirmative action to ensure that contractors are treated equally during the Project without regard to race, creed, color, national origin, sex, age, religion, veteran status or sexual orientation. Foundation shall, in all solicitations or advertisements for employment placed on or behalf of Foundation, state that all qualified applicants shall receive consideration for employment without regard to race, creed, color, national origin, sex, age, religion, veteran status or sexual orientation.
6.12 Foundation and its contractors and subcontractors shall perform the obligations set forth in Agreement as independent contractors.
6.13 Following issuance of the Notice to Proceed, Foundation agrees to (A) diligently execute completion of the Project in accordance with the terms of this Agreement; (B) to coordinate all construction activity with designated PARD staff to minimize disruptions to Park Land usage; and (C) to ensure construction complies with Design Documents.
6.14 Upon completion of each Milestone of the Project, Foundation shall deliver to the City written notice that the Milestone has been completed on a form approved by PARD (the "Completion Notice").
6.15 Upon completion of the final Milestone, Foundation shall deliver to the City written notice that the Final Milestone has been completed on a form approved by PARD (the "Final Completion Notice").
6.16 Foundation shall not use funds provided by the City for the purpose of paying TUR Partners, for any work related to the Event Impact Analysis, for Foundation daily operating or administrative expenses, or for project management, including costs related to Foundation PM.
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6.17 Foundation shall permit the City to participate in the development of the Event Impact Analysis with TUR Partners. Foundation agrees to provide the City with the final Event Impact Analysis on or before April 2014.
7.0 CITY RESPONSlBILTIES
7.1 The City shall designate a Contract Manager for this Agreement.
7 .1.1 The City's Contract Manager shall be responsible for oversight and monitoring of Foundation's performance under this Agreement.
7 .1.1.1 City Contract Manager may meet with Foundation to discuss any operational issues or the status of the services or work to be performed.
7 .1.1.2 City Contract Manager shall review all written reports submitted by Foundation, determine whether the reports comply with the terms of this Agreement, and give Foundation timely feedback on the adequacy of progress and task reports or necessary additional information.
7.1.2 If the City replaces its Contract Manager, the City shall promptly send written notice of the change to the other parties. The notice shall identify a qualified and competent replacement and provide contact information.
7.2 City shall be responsible for securing General permits, site plan permits, and approvals not included in Paragraph 6.5 that are necessary to construct the Project; and shall be responsible for fees associated with the permits and approvals described in this Paragraph.
7.3 City will provide Foundation with a complete set of Design Documents created by the Design Consultant for the Project.
7.4 Without l imiting the requirements or obligations of Foundation, the City will assist Foundation to ensure that the requirements of Paragraph 6.7 of this Agreement are fully complied with by reviewing drafts of Foundation proposes to implement in order to meet the requirements of the Agreement. PARD staff agrees to provide appropriate recommendations in connection with each proposed action.
7.5 For purposes of Paragraph 6.7, the City will provide a list of certified firms to Foundation from which Foundation can solicit participation. The City will provide Foundation with the forms necessary for MIWBE reporting requirements. The City will assist Foundation to identify potential scopes of work, establish bid packages available, schedule and host outreach meetings, and assist Foundation in soliciting M/WBE firms to provide bids.
7.6 The City will not unreasonably withhold approval of the hiring of Foundation's contractors if Foundation solicits and selects its contractors in accordance with applicable laws, including applicable City ordinances and resolutions.
7.7 The City will not unreasonably withhold approval of the Foundation's PM provided the Foundation's PM agrees to comply with the terms of this Agreement.
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8.0 C3'S RESPONSIBILITIES
8.1 C3 agrees to donate $3,500,000 to the City for the Project as set forth in Exhibit F. Donations will be made via electronic transfer to an account provided by the City of Austin.
8.2 C3 agrees to donate $ 1,500,000 directly to the Foundation, as set forth in Exhibit F, which funds may be used by the Foundation as agreed upon by the Foundation and C3, including those purposes set forth in Paragraph 6.16 of this Agreement.
9.0 PAYMENT OF PROJECT COSTS
9.1 The City will make periodic (but not more than once a month) disbursements of City funds, which will be used by Foundation solely with respect to the construction of the Project.
9.1.1 At least 30 calendar days prior to date of the requested disbursement of City funds, Foundation shall deliver to the City Project Manager the following:
9.1.1.1 A proper pay request approved by Foundation or other form of invoice from Foundation evidencing the draw amount due; 9.1.1.1.1 A proper pay request shall include Foundation's name, tax id
number matching the information in the vendor's registration with the city, a unique invoice number, contract name and number, city department name and point of contact name.
9.1.1.2 For construction services or materials delivered:
9.1.1.2.1 The supporting application for payment in the form reasonably approved by the City, that shows the schedule of values, by trade, of percentage of completion of the Project and details the portion of work completed and the portion not completed as of the date of the application for payment;
9.1.1.2.2 Updated progress schedule;
9.1.1.2.3 Monthly subcontractor report (as described in Paragraph 6.7);
9.1.1.2.4 Daily Construction Diaries (as described in Exhibit H), which may be delivered in electronic form via upload to the Project website; and
9.1.1.2.5 If requested by the City, copies of invoices from contractors and subcontractors for services and labor rendered and materials delivered for the Project.
9.1.1.3 For all requested disbursements of City funds, any and all other information reasonably requested by the City, which has not been previously provided.
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9.2 All disbursements of City funds will be disbursed at the City's option: (a) by the City's check delivered to Foundation; (b) by the City's wire transfer to a federally insured account directed by Foundation; or (c) by direct or joint check payment to any or all persons or entities entitled to payment for work performed on, or materials delivered to, or services performed in connection with such disbursement, in the event a claim has been filed or a dispute has occurred with a subcontractor providing labor, services or materials to the Project.
9.3 The public purpose of the City funds disbursed pursuant to this Agreement is to beautify and improve the Park Land and enhance the amenities and use of the Park Land by the general public.
10.0 TERMINATION
10.1 Termination due to breach. Either the City or the Foundation may terminate this Agreement due to breach after the following conditions have occurred:
10.1.1 The non-breaching party notifies the other party in writing of the specific violations of the Agreement.
10.1.2 The breaching party must cure its breach within ten (10) calendar days from date the notice is received. If the violation cannot be cured within the 10-day period, and the breaching party has diligently pursued such a remedy as is necessary to cure the violation, then the parties may agree in wriHng to an ex tension of the period in which the violation must be cured.
10.1.3 If the breaching party fails to cure its breach within the 10-day period or the extension, as appropriate, then the non-breaching party, at its sole option, may terminate this Agreement.
10.1.4 This termination shall be made by sending written "Notice of Termination" to the breaching party. This Notice of Termination shall be effective for all purposes when deposited in the U.S. Mail , postage prepaid and mailed Certified Mail, Return Receipt Requested.
10.2 Termination by the City.
10.2.1 City may also terminate this Agreement for convenience by providing at least 30 calendar days written notice to the Foundation and C3. In the event of a termination for convenience, City shall have the right (but not the obligation) to take over the Project and complete the improvements by contract or otherwise, including the option to require Foundation to assign any or all of its subcontracts to City.
10.2.2 The City may suspend this Agreement immediately in the event of a health or safety issue related to the Project and such suspension shall be in effect until the health or safety issue is resolved to the satisfaction of City. City shall provide Foundation with written notice of suspension, and Foundation agrees to comply with any suspension notice.
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10.3 Dispute Resolution:
10.3.1 Informal Attempt to Resolve Dispute: Upon request of either the City or the Foundation, an informal attempt to negotiate a resolution of the dispute shall be made. Such request shall be in writing, and shall seek a meeting between representatives of each Party within 14 calendar days after receipt of the request or such later period as agreed by the Parties. Each Party shall provide for the meeting, at a minimum, one senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within 30 calendar days after such meeting, the Parties have not succeeded in negotiating a resolution of the dispute, they shall proceed directly to mediation as described below. Informal negotiation may be waived by a written agreement signed by both Parties, in which event the Parties shall proceed directly to mediation as described below.
10.3.2 Formal Mediation: The mediation shall take place in Austin, Texas. The Parties shall select a mediator within 30 calendar days of the written waiver, or within 60 calendar days of the informal negotiation meeting. The Parties agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in this Agreement prevents the Parties from relying on the skills of a person who is trained in the subject matter of the dispute. If the time period for selecting the mediator has expired with no agreement on the mediator, the mediator shall be selected by the Travis County Dispute Resolution Center (DRC). The Parties agree to participate in mediation in good faith for up to 30 calendar days from the date of the first mediation session. The Parties will share the costs of mediation equally.
10.4 If this Agreement is terminated, C3 is relieved of its obligation to make any donations after the effective date of the termination and will receive a refund of previous donations to the extent there is any amount remaining after applying the previous donations to actual costs incurred with respect to the Project.
11.0 INSURANCE AND INDEMNIFICATION
11.1 Insurance: Foundation, along with its contractors, shall maintain insurance as required in Exhibit G.
11.2 INDEMNIFICATION: FOUNDATION SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF FOUNDATION, OR FOUNDATION'S AGENTS, EMPLOYEES, OR CONTRACTORS IN THE PERFORMANCE OF FOUNDATION'S OBLIGATIONS UNDER THIS AGREEMENT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR FOUNDATION (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. THIS INDEMNIFICATION DOES NOT INCLUDE INDEMNIFIED CLAIMS ARISING
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OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CITY, OR THE CITY'S AGENTS, EMPLOYEES, REPRESENTATIVES OR CONTRACTORS.
12.0 GENERAL TERMS
12.1 Completion Notice and Acceptance:
12.1.1 Within 7 calendar days following the City's receipt of the Completion Notice, the City shall respond to Foundation by either submitting a list of items still requiring completion or by accepting the Milestone.
12.1.2 The Foundation shall remediate, complete or detail its response to the City's punch list items within 14 days ofthe Foundation's receipt of the City's list.
12.1.3 Acceptance of the Project or any Milestone thereof, which shall not be unreasonably withheld, shall be evidenced by a letter of acceptance from PARD (the "Acceptance Letter"). Failure by the City to issue an Acceptance Letter to a Completion Notice within the 21 day period shall be deemed acceptance by the City (the "City Acceptance").
12.2 Contractors/Subcontractors. Work performed for the Foundation by a contractor shall be pursuant to a written contract between the Foundation and the contractor. The terms of the contract may not conflict with the terms of this Agreement, and shall contain provisions that:
12.2.1 require that all deliverables to be provided by the contractor be provided in strict accordance with the provisions, specifications and terms of this Agreement.
12.2.2 prohibit the contractor from further subcontracting any portion of the Agreement to any party not approved by the City (which approval shall not be unreasonably withheld) and the Foundation. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City;
12.2.3 require that all contractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the contractor, with the City and C3 being a named insured as its interest shall appear; and
12.2.4 require that the contractor indemnify and hold the City and C3 harmless to the same extent as the Foundation is required to indemnify the City;
12.3 Foundation Relationship.
12.3.1 Nothing in the Agreement shall create for the benefit of any contractor or subcontractor of Foundation any contractual relationship between the City and any such contractor or subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due any such contractor or subcontractor except as may otherwise be required by law.
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12.3.2 The Foundation shall pay each of its contractors its appropriate share of payments made to the Foundation not later than 10 calendar days after receipt of payment from the City, and ensure each Contractor pays its subcontractor and/or supplies.
12.4 Force Majeure. Neither party shall be held responsible for losses resulting if the fulfillment of any terms or provisions of this Agreement are delayed or prevented by any cause not within the control of the party whose performance is interfered with and which said party is unable to prevent by the exercise of reasonable diligence.
12.5 Gratuities. Gratuities in the form of entertainment, gifts, or otherwise were offered or given by Foundation, or any of its agents, employees or representatives to any City official or employee with a view toward securing favorable treatment with respect to this Agreement is strictly prohibited. This Agreement may be canceled by the City pursuant to this provision,
12.6 Claims. In the event that any claim, demand, suit, or other action ("Claim") is made or brought by any person, firm, corporation or other entity against the Foundation or its contractors, Foundation shall provide written notice of such Claim to the City' s Contract Manager within two business days of the date Foundation or any of its employees or representatives first learned of the Claim. Notification from Foundation shall include: the names and addresses of the person, firm, corporation or other entity making the Claim and, if known, the basis of such Claim.
12.7 Auditing Requirements.
12.7.1 Foundation agrees that the representatives of the Office of the City Auditor, or other authorized representatives of the City, shall have access to, and the right to audit, examine, or reproduce, any and all records of the Foundation or its contractors related to performance under this Agreement, including but not limited to sales information and bank accounts, during normal business hours (Monday - Friday, 8 am -5 pm).
12.7.2 Foundation shall retain all such records for a period of three years after the expiration or termination of this Agreement or until all audit and litigation matters that the City has brought to the attention of the Foundation are resolved, whichever is longer. Foundation shall include this audit section in its contract with contractors and suppliers. Records include all documentation that will permit the presentation of financial statements and reports prepared in accordance with general1y accepted accounting principles and as necessary and required under this agreement.
12.8 Assignment - Delegation. Foundation shall not assign any of its rights or obligations under this Agreement without the prior written approval of the PARD Director.
12.9 Notices. With the exception of a notice of suspension referenced in Paragraph 12.18, notices under this Agreement shall be sent by registered or certified mail, return receipt requested. The notice shall be effective three days after the date of posting with the United States Postal Service. Notices shall be sent to the following address:
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12.9.1 City of Austin ("City") ATTN: Sara L. Hensley, CPRP, PARD Director 200 South Lamar Blvd. Austin, Texas 78704
12.9.2 Austin Parks Foundation ("Foundation") ATTN: Colin Wallis, Executive Director 507 Calles Street, Ste. 116 Austin, Texas 78702
12.9.3 C3 Presents ("C3") ATTN: Charlie Jones 300 West 61
h Street, Suite 2100 Austin, Texas 78701
12.10 Conflict of Interest. Foundation covenants that neither it, nor any member of its governing body, presently has any interest or shall acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Foundation further covenants that in the performance of this Agreement no person having such interest shall be employed or appointed as a member of its governing body.
12.11 Severability Provision. If any provision(s) of this Agreement is held invalid, illegal, or unenforceable, the remainder shall be construed to conform to the intent of the parties.
12.12 Choice of Law and Venue. Any causes of action arising under this Agreement shall be controlled by the laws of the State of Texas and venue shall be in Travis County, Texas.
12.13 Amendments. Amendments to this Agreement shall not be effective unless set forth in writing and signed by an authorized representative of each party.
12.14 Rights to Proposals, Plans and Agreement Materials. All reports, charts, schedules, or other appended documentation to any proposal, content of basic proposal, or contracts and any responses, inquiries, correspondence, and related material submitted by Foundation to the City shall become property of the City upon receipt. Foundation acknowledges that City is subject to the Texas Public Information Act (Chapter 552 of the Texas Government Code).
12.15 No Waiver. Failure of the City to insist in any one or more instances upon performance of any of the terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the future performance of any terms or conditions.
12.16 No Third Party Beneficiaries. The City and Foundation agree that the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties and is made solely and specifically for their benefit. No other person or entity shall have any rights, interest or claims under this Agreement.
12.17 Compliance with Health, Safety, and Environmental Regulations. Foundation, its employees, contractors, and its subcontractors and their respective employees, shall comply
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fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. Foundation shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Foundation's obligations under this paragraph.
12.18 Stop Work Notice. The City may issue an immediate Stop Work Notice in the event the Foundation, its contractors, or subcontractors are observed performing in a manner that is in violation of Federal, State or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, Foundation, contractors, or subcontractors will cease all work until notified by the City that the violation or unsafe condition has been corrected. Foundation shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice due to the acts of Foundation or its agents or employees.
12.19 Warranty - Services. Foundation will include in each of its contracts under this Agreement that its contractor warrants and represents that all services to be provided will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Agreement, and all applicable Federal, State and local laws, rules or regulations. The Foundation agrees to assign all such warranties to the City on completion of the Project.
12.20 Exhibits. The exhibits identified below are attached and incorporated into this Agreement for all purposes.
EXHIBIT A: Project Scope EXHIBIT B: Project Site EXHIBIT C: Schematic EXHIBIT D: Project Budget EXHIBIT E: Project Timeline and Milestones EXHIBIT F: Donation Payment Schedule EXHIBIT G: Insurance and Bond Requirements EXHIBIT H: Requirements for Daily Construction Diaries EXHIBIT 1: Construction in Parks Specifications EXHIBIT J: Prevailing Wage Requirements ATTACHMENT 1: Resolution No. 20120823-072
12.21 Foundation and its contractors shall perform the obligations set forth in the Agreement as independent contractors.
12.22 Regardless of the actual drafter of this Agreement, the parties agree that this Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more strongly for or against any party.
12.23 Survivability of Obligations. All provisions of this Agreement that impose continuing obligations on the parties, including but not limited to warranty and indemnity shall survive expiration or termination of the Agreement.
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12.24 Entire Agreement. The above text, along with the Exhibits listed below, constitute the entire agreement between the parties with regard to the subject matter of this Agreement. Neither party's employees nor agents are authorized to amend the terms of this Agreement in any way except in a writing signed by authorized representatives of each party.
BY THE SIGNATURES affixed below, the above Agreement is hereby accepted as to all terms and conditions and is effective as of the last signature date below.
5 /3 Sara L. Hensley, CP P Colin Wallis Date Director Executive Director Parks and Recreation Department Austin Parks Foundation
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SCOPE OF PROJECT EXHIBIT A
PROJECT SCOPE.
The Parks and Recreation Department (PARD) is working actively with the Austin Parks Foundation (Foundation) and C3 Presents (C3), the organizer of the Austin City Limits Music Festival on a coordinated effort to develop a facilities and operational plan for PARD's major outdoor events venues, with emphasis upon Auditorium Shores. This coordinated effort will bring a renewed focus on Auditorium Shores as a great urban park that can sustainably accommodate patrons, special events and community gatherings.
With the assistance of the City's Design Consultant, the Foundation and PARD will make improvements to Auditorium Shores more rapidly and cost efficiently than the City of Austin could perform alone.
The scope of this Agreement includes the following program elements: • Auditorium Shores Event Lawn • Off-Leash Area • Ann and Roy Butler Hike and Bike Trail Re-Route
Auditorium Shores Event Lawn: The event lawn, open turf grass areas and paved promenades at Auditorium Shores host many of Austin's largest and most popular special events, festivals and thousands of daily users including families, walkers, runners, fitness enthusiasts and pet owners. The high popularity of this parkland has resulted in significant site degradation necessitating significant reinvestment in infrastructure and landscape improvements as are being proposed under this Agreement.
Scope of work for these 18 acres of lakefront parkland is identified as Area 2 and 3 in attached Exhibit B and includes:
• Demolition of outdated infrastructure
• Site re-grading
• Utility and storm water improvements
• Accessibility enhancements
• Irrigation and turf grass replacement
• Sidewalk, trail and shoreline improvements
• Tree planting
• Signage and way finding
• Site furnishings and amenities
Funding Source: Donation by C3 Presents up to the amount committed by C3 in the Agreement
Off-Leash Area: Currently, the entire Auditorium Shores parkland north of Riverside Drive is designated as off-leash and is considered a popular destination for dog owners who particularly favor this site for water access. The heavy use of Auditorium Shores as an off-leash area has taken a toll on the health of turf grass in this area and has resulted in dog, pedestrian and bicycle conflict of use.
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The concept plan for this off-leash area was developed with input from the off-leash community. Community engagement and input is required from the off-leash community and general park users as fmal designs are developed. Under the current project, improvements are envisioned for a formally designed and developed offleash area on 3.2 acres of parkland at the western end of Auditorium Shores. The design of this off-leash area will include a re-route of the Ann and Roy Butler Hike and Bike Trail to allow access by dogs and their owners to the lake edge while avojding direct conflict with trail users.
The new off-leash area is identified as Area 1 in attached Exhibit B and will feature the following elements that reflect best practices for off-leash area design and construction:
• Separation from adjoining land uses
• Trail and access improvements
• Defmed edge consisting of land form, vegetative barrier and/or fencing
C3 payments APF City Fiscal Year $ notes $ notes FY 13-14 750,000 for TUR and PM 250 000 design FY 14-15 500,000 for TUR and PM 500000 •desianlconstruction FY 15-16 250,000 for future impvmnts 750 000 constructiOn FY 16-17 1 000,000 construc:tion FY 17-18 1,000,000 conetructlon
1,500,000 3,500,000 5,000,000
Annual payments by C3 Presents to be made no later than December 1st of each fiscal year
EXHIBITG
Insurance and Bond Requirements
A. General Requirements
Austin Parks Foundation (APF) shall forward certificates of insurance with the endorsements required below to the City as verification of coverage within 5 calendar days after the date this Agreement is executed (unless provided otherwise below),
APF shall not commence work on the Project until the required insurance is obtained by the general contractor and has been reviewed by the City. Approval of insurance by the City does not relieve or decrease the liability of APF hereunder and is not a limitation of liability on the part of APF.
APF must submit certificates of insurance for all contractors and/or subcontractors to the City prior to the commencement of work on the Improvements to be made pursuant to the Agreement and for all A/E and other professionals prior to the commencement of work under their respective agreements.
APF's, and all engineers/architects and Project Management consultants (professionals), contractor's, and subcontractor's insurance coverage must be written by companies licensed to do business in the State of Texas at the time the policies are issued and must be written by companies with A .M. Best ratings of B+VII or better or otherwise be approved by the City. All endorsements naming the C ity as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance must contain the following information:
Attn: City Project Manager (Terry Jungman) City of Austin Parks and Recreation Department P. 0 . Box l 088 Austin, Texas 78767-1 088
The "other" insurance clause must not apply to the City where the C ity is an additional insured shown on any policy. It is intended that policies required in this Exhibit, covering both the City and APF, be considered primary coverage as applicable.
If insurance po licies are not written for amounts specified in this Exhibit, APF, the general contractor, or other professionals, contractors, and subcontractors of APF must carry umbrella or excess liabi lity insurance for any differences in amounts specified. If excess liability insurance is provided, it must follow the form of the primary coverage.
The City shall be entitled, upon request and without expense, to receive certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the Parties hereto or the underwriter on any such policies.
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APF shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Agreement (Term) without providing a substantially equivalent policy of insurance or coverage in replacement thereof.
The Professionals, and any contractor, or subcontractor responsible for maintaining insurance pursuant to this Agreement shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions must be disclosed on the certificate o f insurance.
The City may review the insurance requirements set forth in this Exhibit to the Agreement during the period of construction and until Final Completion p lus the period for all construction warranty work and may make reasonable adjustments to insurance coverages, limits, and exclusions when reasonably deemed necessary and prudent by the City based upon applicable changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company(ies), APF, profess ionals, contractors, or subcontractors.
The insurance coverages specified below are required minimums and are not intended to limit the responsibility or liability of APF, the professionals, contractors or subcontractors of APF.
B. Specific Requirements
Worker's Compensation and Employers' Liability Insurance. Coverage must be consistent with statutory benefits outlined in the Texas Worker's Compensation Act (Section 401). The minimum policy limits for Employer 's Liability are $1,000,000 bodily injury each accident, $ 1,000,000 bodily injury by disease policy limit and $1,000,000 bodily injury by disease each employee.
(a) APF, its professionals ' , contractors' , and subcontractors' policy shall apply to the State of Texas and include these endorsements in favor of the City:
(i) Waiver of Subrogation, Form WC 420304, or equivalent coverage.
( ii) Thirty days Notice of Cancellation, Form WC 42060 I , or equ ivalent coverage.
Commercial General Liability Insurance. APF, any professionals, including the A/ E team, the general contractor and other contractors shall provide the minimum bodily injury and property damage per occurrence are $1,000,000 for coverages A and B.
(a) The policy must contain the fo llowing provis ions:
( i) Contractual liabi lity coverage for liability assumed under this Agreement and all contracts related to this Project.
(ii) Independent contractor's coverage.
(ii i) Products/completed operations liability for the duration of the warranty period.
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(b) The policy must also include these endorsements in favor of the City:
(i) Waiver of Subrogation, endorsement CG 2404, or equivalent coverage.
(ii) Thirty days notice of cancellation, endorsement CG 0205, or equivalent coverage.
(iii) The City and C3 listed as an additional insured, endorsement CG 2010, or equivalent coverage.
Business Automobile Liability Insurance. APF, its professionals, contractors, and subcontractors shall provide coverage for all owned, non-owned and hired vehicles with a minimum combined single limit of $ 1,000,000 per occurrence for bodily injury and property damage.
(a) The policy must include these endorsements in favor of the City:
(i) Waiver of subrogation, endorsement CA 2404. or equivalent coverage
(ii) Thirty days notice of cancellation, endorsement CA 0244. or equivalent coverage
(iii) The City and C3 listed as an additional insured, endorsement CA 2048. or equivalent coverage
If these specific endorsements are not available, evidence of equivalent coverage shall be provided to the City. If neither the endorsement nor equivalent coverage is available, a written statement to that effect from the carriers' underwriter shall be provided to the City for approval. Acceptance of the statement shall not be reasonably withheld by the City.
Builders Risk Insurance. During the construction of the Improvements to be completed pursuant to the Agreement, or any subsequent construction or repair of the Improvements, APF may require its contractor to maintain an all risk builders risk insurance policy in the amount of the construction contract. The policy must name the City as loss payee as its interest may appear.
Hazardous Material Insurance. If there is work that involves any hazardous materials or pollution, any contractor or subcontractor responsible for such work must comply with the following insurance requirements in addition to those specified above:
(a) Provide a pollution coverage endorsement to the commercial general liability policy with minimum bodily injury and property damage limits of $1,000,000 per occurrence for coverages A&B and products/completed operations coverage with a separate aggregate of $1,000,000. This policy must not exclude any hazardous materials or pollution and must provide "occurrence" coverage without a sunset clause. The policy must provide 30 day notice of cancellation and waiver of subrogation endorsements in favor of APF and the City.
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(b) Any contractor or subcontractor responsible for transpOtting any hazardous materials shall provide pollution coverage. Federal law requ ires interstate or intrastate transporters to provide an MCS 90 endorsement with a $5,000,000 limit when transporting in bulk in conveyances of gross vehicle weight rating of 10,000 pounds or more. Interstate transporters in non-bulk in conveyances of gross vehicle weight rating of 10,000 pounds or more must provide an MCS 90 endorsement with a $1,000,000 limit. The terms "conveyance" and "bulk" are defined by Title 49 CFR 171.8. All other transporters shall provide either an MCS 90 endorsement with minimum limits of $ 1,000,000 or an endorsement to their Commercial General Liability Insurance policy which provides coverage for bodily injury and property damage arising out of the transportation of hazardous materials. The endorsement must, at a minimum, provide a $ 1,000,000 limit of liabi lity and cover events caused by the hazardous properties of airborne pollutants arising from fire, wind, hail, lightening, overturn of conveyance, coll ision with other vehicles or objects, and loading and unload ing of conveyances.
(c) The contractor shall submit complete copies of the policy providing pollution liability coverage to APF and the City.
Professional Liability Insurance. In addition to the workers compensation, business auto liability and commercial general liability coverage requirements above, all contractors providing professional services shall provide Professional Liability Insurance to pay on behalf of the assured all sums which the assured becomes legally obligated to pay as damages by reason of any negligent act, error, or omission committed or alleged to have been committed with respect to plans, maps, drawings, analyses, reports, surveys, change orders, designs or specifications prepared or alleged to have been prepared by the assured. The policy must provide fo r 30 day notice of cancellation in favor of the APF and the City. The minimum limit of liability for this coverage shall be $1,000,000.
Performance and Payment Bonds. APF shall requ ire its general contractor, within 30 days from and after notification of the award of the contract, and before commencement of construction of the Improvements, to furnish and deliver to the City, legally issued surety bonds in a form approved by the City and in compliance with the Texas Property Code, with the City and APF named as co-obligees. The furnishing and delivery of such bonds within the periods mentioned is a condition precedent to the commencement of the construction of the Improvements and, upon the failure of the general contractor to so furnish and deliver all of the same in form, tenor and execution and with sureties reasonably satisfactory to the City, no rights obtain thereunder to the general contractor, no construction of the Improvements being completed pursuant to the Agreement may commence or continue and, if construction has commenced without compliance with the requirements of this paragraph, all construction activities must immediately be suspended and APF will be in material default under the Agreement.
Payment Bond. APF shall require the general contractor to provide a payment surety bond legally issued, meeting the approval of the City, in an amount not less than 100% of the total contract price of the construction costs of the Improvements, conditioned upon the prompt, full, and complete payment of all subcontractors and suppl iers.
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Performance Bond. APF shall require the general contractor to provide a performance surety bond legally issued, meeting the approval of the City, in an amount not less than tOO% of the total contract price of the construction costs of the Improvements, conditioned upon the prompt, fu ll and complete performance by the general contractor of these covenants and agreements contained in the contract documents
Nothing in this Exhibit is intended to overlap or be duplicative of the insurance currently carried by APF.
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EXHIBITH
CONSTRUCTION DIARIES
A. The Contractor shall prepare a daily construction diary that concerns the events at the site. Prior to commencing work, Contractor must submit a template construction diary to the City's Project Manager.
B. Contractor shall submit the daily construction diary via email in PDF format before 10:00 a.m. the following business day to Robert Egan, the City's Project Manager. Email: robert.cgan (g austintcxas.gov.
C. The daily construction diary must include, at a minimum, the following information:
I. Work performed; 2. Names and Texas driver's license numbers of all Contractor's and Contractor's
subcontractor 's personnel, by classification, on the site; 3. List of all visitors, delivery personnel, and other personnel on the site that day; 4. List of all equipment on the site by make and model; 5. High and low temperatures together with general weather conditions; 6. Start time and fini sh time of day's work; 7. Accidents and I or unusual events; 8. Itemized log of deliveries; 9. Meetings and significant decisions made; I 0. Stoppages, delays, shortages and I or losses; 11 . Meter readings and I or similar recordings; 12. Emergencies procedures that may have been needed; 13. Orders and requests of governing authorities; 14. Change Orders received and implemented; 15. Services connected and I or disconnected; 16. Installed equipment and I or system tests and I or startups and results; 17. Partial completions and I or occupancies; 18. Date of substantial completion certified, and; 19. At least 12 clear, in focus, not blurry digital photos that show representative work and
meet the following requirements a. of at least 8 megapixels b. each must be date stamped by the camera at the time of exposure, c. taken at appropriate times during each work period, and d. incorporated into the PDF (not sent separately)
Exhibit I
Environmental Criteria Manual
SECTION 5- CONSTRUCTION IN PARKS
5.1.0 GENERAL
The information in this section is intended to define the technical design criteria needed for construction on parkland owned by the City of Austin.
Although parkland construction is generally achieved through contractual agreement, this section provides guidelines that coordinate the special requirements for park construction with the general development requirements of the Land Development Code and the Technical Manual Series.
Appeals concerning the enforcement of these rules shall be brought to the Director of the Parks and Recreation Department.
Construction activities that disrupt the environment are an inevitable part of the growth and maintenance of a city and as a city develops, the open areas of parks, creeks and greenbelts become more attractive as routes for underground utilities. This is the case in Austin where the many creeks and greenbelts, under the control of the Parks and Recreation Department, have and will continue 1o provide a convenient route. In many cases, such installation of underground utility lines, causes only temporary disruption and the environment eventually returns by natural means to its original state. The length of time required for recovery of the original vegetation may be great, however, depending on the proximity of seed sources and the suitability of soil conditions for plant establishment and growth. The purpose of these guidelines is to reduce and control the construction impact upon the City's park areas and to speed the recovery of natural vegetation. This can be done by minimizing the initial environmental impact of construction, restoring suitable soil conditions and introducing appropriate plant species.
Construction impact can be minimized by selecting the least destructive route that is feasible within the constraints of the budget. It also involves the avoidance of unnecessary impacts during the course of construction, such as the excessive destruction of vegetation and the loss of soil through uncontrolled erosion.
Restoration of soils involves restoring the original contours of the land and ensuring that soil physical conditions are suitable for plant growth. Soils of construction sites have generally been compacted by heavy machinery and topsoil has been lost or at least diluted by subsoils. These and other conditions must usually be improved before vegetation can be established.
5.2.0 ADVANTAGES OF RESTORATION AND REVEGETATION
Restoring natural vegetation in disturbed areas has practical advantages as well as ecological and aesthetic ones. On the practical side, natural vegetation provides low maintenance landscaping while also helping to minimize precipitation runoff and the consequent problems of soil erosion, siltation and flooding. Ecological and aesthetic advantages stem from the fact that natural vegetation is diverse in terms of species composition and growth forms. This diversity results not only in a more interesting landscape, but also one that provides suitable living space for native wildlife in an increasingly urbanized area.
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Exhibit I
A particular advantage of restoring natural vegetation in Austin is that of helping to conserve the city's unique flora. These guidelines should be used in conjunction with the Revegetation Criteria found in Section 1 .4.0 of this manual.
The objective of the revegetation criteria is to provide information on the processes involved in planning the restoration of natural vegetation in disturbed areas.
The procedures for route selection, reconnaissance survey and preconstruction inventory should be followed. The information compiled should be presented as an environmental report and used in conjunction with the Parks and Recreation Department in selecting a route and for restoration and revegetation.
The initial environmental impact of construction can be minimized by proper planning. Effective and efficient restoration of the site upon completion of construction also calls for planning.
Ecologically or aesthetically valuable areas can often be avoided with little or no increase in construction costs. The resulting environmental savings is doubled by the fact that restoration of topography and vegetation is consequently less complex and less expensive. Once a final project alignment is selected, further savings are possible by planning resource salvaging efforts, erosion control and restoration of topography and vegetation.
5.3.0 ROUTE SELECTION
A reconnaissance survey is necessary in order to select the least expensive alignment of the construction right-of-way corridor. Included in the expense estimate is the cost of restoring the pre-existing vegetation following construction, as well as the cost of the construction itself. In most cases, the cost of restoration will be insignificant compared to the expense of moving the alignment to avoid vegetation, but not always. If planning is done well in advance, it is probable that an alignment can be achieved which will not be significantly more expensive, but will be considerably less destructive than some other alignment that is made without reference to the vegetation.
Using information obtained during the reconnaissance surveys, select the least destructive route through the area. In comparing the costs of various alternatives, the costs of restoration should be considered. For example, it may be less expensive to realign a potential construction corridor to avoid important vegetational or topographic features than to restore the features later. Rare plant populations must be avoided at all costs. Transplanting the rare species elsewhere is no solution, since habitats su itable for rare species are frequently protected.
After the final alignment is selected, an inventory of the resources in and near the construction easement should be conducted. This is necessary in order to plan restoration efforts and to minimize the immediate environmental impact of the project.
The simplest, most effective model for restoring vegetation is the original vegetation. If this is described prior to construction there will be fewer decisions to make concerning what species and densities to restore. If the original vegetation is weedy, however, it would be advisable to restore a more desirable community.
5.3.1 Tree Survey
When suitable alignment has been decided, a detailed tree survey of the construction and access easements is required. The survey is to include those trees adjacent to the easement whose driplines come within the easement.
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Exhibit I
The survey is to show all Class 2 or Class 3 trees whose diameter is larger than four (4) inches and all Class 1 trees, regardless of size. Particular attention should be paid to identifying Class 1 trees with a view to transplanting. (See Appendix F)
The survey is to show:
The location of the tree.
The diameter of the trunk at 41/2 feet above natural grade.
The approximate crown size of the large trees.
The species and/or common name of the tree.
Trees to be removed should be indicated and the locations approved by the Parks and Recreation Department. All trees that are to be retained are to be protected with tree protection fences (see Appendix K). These tree protection fences are to be shown on the construction drawings.
5.3.2 Tree Evaluation
A tree evaluation is required to establish a relative value of the trees that will be removed or impacted by the construction works (see Section 3.5.1).
These evaluations will provide the basis for replacement of those trees removed or to assign a monetary value to them.
The tree evaluation system is shown in detail in Section 3. Trees to be removed will be carried out in accordance with the methods shown in Section 5.4.6, Site Clearing.
5.3.3 Disturbed Natural Areas
Natural areas within the Parks and Recreation Department's jurisdiction are greenbelts, wilderness parks and nature preserves.
Any areas that are disturbed within these natural parkland areas will require restoration as detailed in Appendix L, to ensure that their character as natural areas are maintained.
5.4.0 CONSTRUCTION
5.4.1 General
The Texas Parks and Wildlife Code, Chapter 26, prohibits any construction activity on public land designated for park and recreation use unless an easement has first been granted by the City Council. This easement process is described below in Section 5.4.4.
All construction activity on lands under the jurisdiction of the Parks and Recreation Department shall conform to the requirements of these guidelines.
If not covered by these guidelines all construction activity shall, with the approval of the Parks and Recreation Department, be in accordance with the City of Austin Standard Specifications.
Particular attention is drawn to the following paragraphs of the "General Conditions of Agreement- Bidding and Contract Requirements," in Section 00140 of City of Austin Standard Specifications particularly 3.14 "Laws and Ordinances", and 10.10 "Safety of Persons and Property".
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Exhibit I
5.4.2 Laws and Ordinances The contractor shall at all times observe and comply with all federal, state and local laws, ordinances, codes and regulations which in any manner affect the contract or the work and shall indemnify and save harmless the owner and engineer/architect against any claim arising from the violation of any such laws, ordinances and regulations whether by the contractor or his employees. If the contractor observes that the project is at variance therewith, he shall promptly notify the engineer/architect in writing, and any necessary changes shall be prepared as provided in writing, and any necessary changes shall be prepared as provided in the contract for changes in the work. If the contractor performs any work knowing it to be contrary to such laws, ordinances, rules and regulations and without such notice to the engineer/architect, he shall bear all costs arising therefrom. The ordinances and regulations of the City shall be controlling and shall be considered as part of this contract to the same effect as though embodied herein.
Maintaining clean water, air and earth or improving thereon shall be regarded as of prime importance. The contractor shall plan and execute his operations in compliance with applicable federal , state and local laws and regulations concerning the control and abatement of water pollution and the prevention and control of air pollution.
Care shall be exercised to preserve the natural landscape within the project site and shall conduct his construction operations so as to prevent any unnecessary destruction, scarring or defacing of the natural surroundings in the vicinity of the work. Except where clearing is required for permanent construction, trees and vegetation shall be preserved and protected from damage which may be caused by equipment and construction operations. Where unnecessary destruction or damage occurs as a result of the contractor's operations to trees, replacement or correction shall be made at the contractor's expense as directed by the engineer/architect. Prevention of noise pollution shall be a responsibility of the contractor. Garbage, trash and material debris shall be picked up daily and deposited in a suitable receptacle provided and maintained by the contractor. Measures shall also be implemented to prevent the escape of mud and excess concrete.
5.4.3 Safety of Persons and Property
All reasonable precautions for the safety of and shall provide all reasonable protection to prevent damage, injury or loss to:
1. All employees on the work and all other persons who may be affected thereby;
2. All the work and all materials and equipment to be incorporated therein , whether in storage or off the site, under the care, custody or control of the contractor or any of his subcontractors or sub-subcontractors; and
3. Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, fences, roadways, structures and utilities not designed for removal , relocation or replacement in the course of construction.
The contractor shall comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss. He shall erect and maintain, as required by existing conditions and progress of the work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities.
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Exhibit I
When the use or storage of explosives or other hazardous materials or equipment is necessary for the execution of the work, the contractor shall exercise the utmost care and shall carry on such activities under the supervision of properly qualified personnel.
All blasting, including methods of storing and handling explosives and highly flammable materials, shall conform to federal , state and local laws and Ordinances.
5.4.4 Easements
For information and procedures for obtaining easements through City of Austin Parkland see the Administrative Criteria Manual.
5.4.5 Access and Security
All permanent easements, temporary construction easements, access roads, work areas and materials storage sites should be shown on the construction drawings in locations agreed and approved by the Parks and Recreation Department. All construction shall be confined to the marked easements. No material, equipment, plant, vehicle parking or storage shall occur outside this easement or within the dripline of trees retained in or adjacent to the easement. The contractor will be responsible for all damages to work areas, storage sites and access roads which are a result of his use or negligence in protection and for all damage that is caused by the contractor working outside of these areas. Spillage or discharge of oil or other toxic fluids shall be contained and removed from the site.
Prior to bringing major construction equipment into unpaved areas, the contractor shall outline the limits of the construction and access easements which will be disturbed, with a barrier in accordance with City standards.
If the construction works are carried out in a park location where the public has access, an eight (8) foot high chain link security fence is to be provided around the immediate area of construction operations, all work areas and storage sites. This fence is to be secured to prevent unauthorized entry at all times when contractors personnel are not at the site.
The contractor shall exercise utmost care in preventing damage to trees and other items in the Parks and Recreation Department area. Any damaged item shall be repaired or replaced, at no expense to the City, to a condition equal to or better than their condition before construction.
All workers should be informed of the special efforts to salvage and restore the vegetation and they should be encouraged to prevent unnecessary damage.
5.4.6 Site Clearing/Erosion Control
To prevent erosion, clearing of easements and access routes will only be carried out for a distance of 1 ,000 1eet in advance of construction or seven (7) days prior to construction being at that location.
Trees that are to be removed shall be taken down in a manner which will not impact any of the adjacent trees to be retained.
All trees will have crown and limbs removed before being felled and depending upon the density of vegetation the trunk shall be felled before the stump is removed.
The City may require that limbs and underbrush be chipped/shredded and retained on site to be spread as a mulch after construction has finished.
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Exhibit I
The boundary of the access route and working easement clearing shall be marked with a barrier described above. The boundary shall be reviewed with the Parks and Recreation Department prior to marking. No clearing operations will be allowed in an unmarked area.
Salvaging and placing existing topsoil shall be in accordance with City of Austin Standard Specifications, Item No. 601.
Spoil shall not be placed within the drip line of trees. In locations where the line runs along the creek bank, care is taken to prevent excavated material from spilling into or blocking the creek. At the end of the work day, all spoil shall be cleaned up, ditches backfilled and excess spoil removed from the job site.
5.4.7 Temporary Erosion Control
Temporary erosion controls during the construction period shall be carried out in accordance with the measures contained in Section 1.4.0 of this manual.
5.4.8 Construction in Creeks
Every effort shall be made to keep the zone of immediate construction free of surface water. For construction in the creek channel , a pipe of adequate size to divert normal stream flow shall be provided around the construction area. Diversion may be by pumping or gravity flow using temporary dams.
A. Discharge of Pumped Water.
Where water must be pumped from the construction zone, discharges shall be in a manner that will not cause scouring or erosion. All discharges shall be on the upstream or upslope side of emplaced erosion control structures. If discharges are necessary in easily erodible areas, a stabilized, energy-dissipating discharge apron shall be constructed of riprap with minimum stone diameter of six (6) inches and minimum depth of 12 inches. Size of the apron in linear dimensions shall b e approximately ten (1 0) times the diameter of the discharge pipe. Discharges into creeks or major drainages should be as identified by the site development permit.
B. In-Channel Erosion and Siltation Controls.
The contractor will be responsible for controlling erosion and sedimentation in the construction zone. When leaving the job site for more than 12 hours, the contractor shall remove loose excavated materials from the creek channel, except all excavated t rench sections shall be backfilled when the contractor leaves for the weekend.
C. Creek Banks.
Creek banks shall be restored wherever they have been disturbed during the construction process. The contractor shall be responsible for the costs of repair and restoration for all damage to the creek banks, whether caused by personnel or equipment. Stone riprap or gabions shall be used to stabilize cut banks where line enters and exits channel or as otherwise approved by Parks and Recreation Department.
D. Excavation in Creek Channel.
Material excavated from the trench in the creek channel shall not be deposited on the channel banks. Excavation shall be hauled out of the channel or used in backfill of open trench. No loose excavated material shall be left in the channel at the end of a work day.
E. Trench Cap in Creek Channel.
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Exhibit I
The contractor shall cap the trench in the creek channel with two (2) square feet or larger job excavated rock material or similar. This cap shall extend a minimum of 30 inches from the top of the trench.
5.4.9 Site Cleanup
Upon completion of the work and before restoration and revegetation, the contractor shall clean and remove from the site of the work, all surplus and discarded materials, temporary structures and debris of every kind. He shall leave the site of the work in a neat and orderly condition at least equal to that which originally existed. Surplus and waste materials removed from the site of the work shall be disposed of in a permitted disposal area.
In the event the contractor fails or refuses to clean up and remove surplus materials and debris as above provided, the City may do so or cause same to be done, at the contractor's expense and the reasonable cost thereof shall be deducted from the final payment.
5.4.1 0 Restoration/Revegetation
The Parks and Recreation Department will provide detailed planting requirements for revegetation of all disturbed areas. These requirements will consider and be based upon the submitted Environmental Report, the Tree Evaluation Survey and Restoration of Disturbed Natural Areas, Appendix L. The revegetation shall be carried out in accordance with the City of Austin Standard Specifications.
5.5.0 PARK RULES
5.5.1 Smoking Policy
Per Austin City Code, Chapter 10-6, smoking is prohibited in all City parks and any other cityowned land used for a park or recreational purpose that is under the administrative control of the Parks and Recreation Department. However, an exemption can be made for temporary designated smoking areas in a park for special events.
1 . In order to have temporary designated smoking areas, an application must be submitted through the Parks and Recreation Department's Office of Special Events. The department director will then make a recommendation to City Council as to whether the exemption should be granted, and City Council will have the final approval of granting an exemption for temporary designated smoking areas.
2. The application for temporary designated smoking areas must be submitted to the Office of Special Events at the close out of the current calendar year for the upcoming year's events, or at the time the Applicant submit their application for the special event (whichever timeline is greater), but in no event no later than 8 weeks prior to the event. If the deadline is missed, an appeal may be made to the Director. On appeal, the director may waive the deadline provided that the applicant shows good cause that the waiver should be granted. In order to show good cause, the applicant must show at a minimum that failure to comply with the deadline was unintentional , that granting the waiver will not unduly prejudice the City in any way, and that the applicant can still comply with all other laws and legal requirements regulating the special event. The Director may consider any other factor that the Director deems relevant to determining the existence of good cause.
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Exhibit I
3. Temporary designated smoking areas are permitted only during special events. Special events are those events which are having or anticipating 1,000 or more persons and must occur in approved special event venues. Special event sites include Auditorium Shores, Brush Square Park, Fiesta Gardens West End, Republic Square Park, Walter E. Long Park, Waterloo Park, Woolridge Square and other specially approved sites.
4. The minimum physical requirements for a temporary designated smoking area include:
a. The area must be at least 15-feet away from any heavily trafficked areas and areas where people can congregate. Heavily trafficked areas include those areas where pedestrian traffic is constantly flowing within the special event venue. Areas where people can congregate include those areas where patrons (more than 3 people) gather within a special event venue, such as food courts, audience-viewing stage area, vendor booths, portable toilets' queue space, water stations, and other areas which attract gatherers.
b. The area must be surrounded by a chain-link type fencing of preformed 6-feet-high freestanding panels;
c. The area must have at a minimum two entries/exits, and at least one uniformed security officer shall be positioned at each entry/exit to check an age-bearing photo identification of patrons entering the temporary designated smoking area;
d. Fireproof receptacles for cigarette/cigar litter must be placed throughout the area; throughout the duration of the event there should be no cigarette/cigar litter on the park grounds, and the applicant is responsible for this ongoing cleanup;
e. There should be no structures such as roofs or walls that would diminish the dispersion and dilution of smoke; and
f. Signs that read "DESIGNATED SMOKING AREA" must be placed in prominent locations throughout the area. These signs must be at a minimum 1 0" Wide x 15" High in size.
5. The temporary designated smoking areas shall be used by patrons for smoking purposes only.
6. Applicant's event staff should be aware of any temporary designated smoking areas and how to direct smokers to them.
7. At the conclusion of the special event, the temporary designated smoking areas will be thoroughly cleaned and returned to its original state by the applicant.
8. During periods when a Burn Ban is in effect exemptions for temporary designated smoking areas are not granted. Refer to Austin City Code Chapter 8, Article 7, Restrictions on Outdoor Burning. However, during a Burn Ban an Applicant may submit an application for a temporary designated smoking area in the event that the Burn Ban ends prior to the date of the event in which case a temporary designated smoking area would be considered.
9. The Applicant must fill out the Temporary Designated Smoking Area Application.
5.5.2 Smoking Application
TEMPORARY DESIGNATED SMOKING AREA APPLICATION
This form constitutes a request that an exemption be granted to allow smoking in Parks during a special event. The Parks and Recreation Department Director makes a recommendation as to whether the exemption should be granted. Final approvals of temporary designated smoking areas are granted by City Council. Please refer to the Temporary Designated Smoking Area Policies for additional information.
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Exhibit I
Along with this application please include a site plan (drawn to scale) for the event which shows the location of the proposed temporary designated smoking areas.
APPLICANT AND COMPANY INFORMATION
Event Name:
Applicant Name & Company Name:
Billing Address:
Mobile#:
Email address:
State: Zip:
Emergency#:
DETAILS (please type detailed information in the boxes below or attached additional pages as necessary)
Event Description:
Event Location Requested:
Type of Event:
Total Estimated Attendance:
Number and Size of Designated Smoking Areas Requested:
Name of Security Contractor:
Number of dedicated event staff to clean up the proposed temporary designated smoking areas:
Describe the clean up process for the proposed temporary designated smoking areas after the event:
How many cigarette disposal receptacles will be provided in the proposed temporary designated
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smoking areas?
Will cigarette disposal receptacles be provided at entrances/exits to the Special Event? If yes, how many will be provided at each entrance/exit?
What is the distance (in feet) of the proposed temporary designated smoking areas to the nearest residential property?
What is the distance (in feet) of the proposed temporary designated smoking areas to the nearest private commercial property?
Is it anticipated that patrons attending the special event will park their vehicles in adjacent neighborhoods and walk to the event?
What is the distance (in feet) from heavily trafficked areas and the proposed temporary designated smoking areas? Heavily trafficked areas include those areas where pedestrian traffic js constantly flowing within the special event venue.
What is the distance (in feet) from areas where people can congregate and the proposed temporary designated smoking areas? Areas where people can congregate include those areas where patrons (more than 3 people) gather within a special event venue, such as food courts, audience-viewing stage area, vendor booths, portable toilets' queue space, water stations, and other areas which attract gatherers for a period of three minutes or
Exhibit I
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Attachment 1
RESOLUTION NO. 20120823-072
WHEREAS, the City Council recognizes the value and contribution
our City's Park System makes to our shared quality of life by providing
healthy outdoor recreation and entertainment; and
WHEREAS, our Park System provides a connection to our natural
environment, promotes public health and significantly contributes to the
visual character of our City; and
WHEREAS, the preservation, enhancement, and expansion of our Park
System is an important aspect that contributes toward meeting our goal to be
the most livable City in the country; and
WHEREAS, increasing demands on our Park System by growmg
populations and the parks' popularity as venues for events, particularly at
Auditorium Shores and Zilker Park, are creating conflicts with scheduling and
are stressing the parks' vitality and surrounding infrastructure; and
WHEREAS, in 1989 the Austin City Council created a Park Land
Policy Committee to discuss the need for a City events policy for City Parks;
and
WHEREAS, in July 1998 the Parks and Recreation Board adopted a
Parks and Recreation Department Special Events Policy establishing an
annual event limit for City of Austin Parks, which policy was administratively
updated in 2007; NOW, THEREFORE,
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Attachment 1
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF AUSTIN:
That the City Manager is directed to work with stakeholders to conduct
a comprehensive analysis of impacts from events at Auditorium Shores and
Zilker Park, and provide recommendations on a balanced solution that
enhances public access and enjoyment of Austin 's Public Park System; and
BE IT FURTHER RESOLVED:
That the stakeholders shall consist of representatives from the Parks
and Recreation Board, the Waterfront Planning Advisory Board, the Urban
Transportation Commission, the Long Center, the Palmer Event Center, park
