HomeMy WebLinkAbout030807 ORD - 04/12/2016 Ordinance authorizing the City Manager or his designee to execute a
License for Street Right of Way Use with the B-Y, LTD ("Licensee") to
construct a parking lot expansion project to better serve the needs of
Ayers Plaza Shopping Center tenants in full compliance with the City
of Corpus Christi and with the approval of the Texas Department of
Transportation, subject to the Licensee' compliance with specified
conditions.
WHEREAS, B-Y 4918 Ayers, LTD. ("Licensee"), desires to install, operate, and
maintain, the parking lot expansion adjacent to the Ayers Plaza Shopping Center.
WHEREAS, the Licensee has requested, and the City of Corpus Christi ("City") desires
to extend, a ten annual payments of$5,000.00 for a total of$50,000.00 for this License
for Street Right of Way Use ("License"), in order to accomplish the purpose and use
intended by the Licensee within the public right-of-way.
WHEREAS, in accordance with Article IX, Section 1 of the City Charter, the City Council
authorizes the City Manager or his designee to enter into the License for the benefit of
the City and the Licensee, subject to the Licensee' compliance with the specified
provisions of the License for Street Right of Way Use.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS
CHRISTI, TEXAS:
SECTION 1. The City Manager, or his designee ("City Manager"), is authorized to
execute a ten annual payments of$5,000.00 for a total of$50,000.00 for this License
for Street Right of Way Use ("License") with the B-Y 4918 Ayers, LTD. ("Licensee") to
allow the Licensee to construct a parking lot expansion project to better serve the needs
of the Ayers Plaza Shopping Center tenants in full compliance with the City of Corpus
Christi and with the approval of the Texas Department of Transportation, at all times
subject to the Licensee' compliance with the conditions specified in the License. A copy
of this License for Street Right of Way Use is attached to this ordinance, the terms and
content of such License being incorporated by reference into this ordinance as if fully
set out herein in their entirety.
SECTION 2. Indemnification. By its acceptance of this license, the Licensee
covenants and agrees fully to indemnify and hold harmless the City and the elected
officials and officers and employees of the City, individually or collectively, from and
against any and all costs, claims, liens, damages, losses, expenses, fees, fines,
penalties, proceedings, actions, demands, causes of action, liability, and suits of any
kind and nature, including but not limited to, personal injury or death and property
damage, made upon the City, directly or indirectly arising out of, resulting from or
related to Licensee's activities under this license, including any acts or omissions of
Licensee, and any respective agent, officer, director, representative, employee,
consultant, or sub-licensee of Licensee, and their respective officers, agents,
employees, directors and representatives while in the exercise or performance of the
rights or duties under this license, all without, however, waiving any governmental
immunity available to the City under Texas law and without waiving any defense of the
parties under Texas law. The provisions of this indemnification are solely for the benefit
Ordinance-4918 Ayers Street612 Page 1 of 3
030807
INDEXED
of the parties to this license and are not intended to create or grant any rights,
contractual or otherwise, to any other person or entity. Licensee shall promptly advise
the City in writing of any claim or demand against the City or Licensee known to the
Licensee related to or arising out of Licensee's activities under this license and shall see
to the investigation and defense of the claim or demand at Licensee's cost. The City
shall have the right, at its option and at its own expense, to participate in the defense
without relieving Licensee of any of its obligations under this paragraph. The City shall
cooperate with Licensee in the defense of all claims, proceedings, actions, and suits
subject to this indemnification. This indemnification shall not extend to any costs,
claims, liens, damages, losses, expenses, fees, fines, penalties, proceedings, actions,
demands, causes of action, liability, or suit to the extent they directly or indirectly arise
out of, result from or relate to the negligent or wrongful acts or omissions of City or its
officers, agents, employees, representatives, consultants, or contractors. This
indemnification survives the termination or expiration of this license.
SECTION 3. The License authorized in Section 1 of this ordinance is subject to the
Licensees' compliance with the conditions of the License including, but not limited to,
the provisions specified below:
a. In exchange for the City's authorization for use of the public right-of-way by
the Licensee for the stated purpose, the Licensee agrees to pay ten annual
payments of$5,000.00 for a total of$50,000.00
b. All costs incurred to install, operate, maintain, repair, and remove the parking
lot expansion is the sole responsibility of the Licensee.
Ordinance-4918 Ayers Street612 Page 2 of 3
The forego n pfdin� ance was read f r the first time and passed to its second reading on
this the 'aaY of"�_r✓�. , 20 1 yby the following vote:
Nelda Martinez , 1 Brian Rosas A A II
Rudy Garza I ' Lucy Rubio I ��
Chad Magill ,WI 0 Mark Scott i
Colleen McIntyre iA A! Carolyn Vaughn III
Michael Hunter
I
The foreg ing-ordinance wa read for the second time and passed finally on
this thefi`d'ay of , 204( Coq by the following vote:
Nelda Martinez at ! Brian Rosas (:)-L
Rudy Garza e Lucy Rubio /.. A 1
Chad Magill A�= Mark Scott 4 /
Colleen McIntyre .4! Carolyn Vaughn I
/, I
Michael Hunter A.i
PASSED AND APPROVED this the d
I y of , 201.4
ATTEST:
R_Q___,E,,e,,,„ I ILA cAjte,\
Rebecca Huerta Nelda Martinez
City Secretary Mayor
Ordinance-4918 Ayers Street612 Page 3 of 3
03080
License for
Street Right Of Way Use
STATE OF TEXAS §
§
COUNTY OF NUECES §
This right of way license ("License") is entered into by and between the City of Corpus
Christi ("City"), a Texas home-rule municipal corporation, and B-Y 4918 Ayers, LTD
("Licensee"), property owner of 4918 Ayers St, Corpus Christi, Texas, 78415, whose
business address is 4629 Marco, San Antonio, Texas, 78218-5420.
In accordance with Article IX, Section 1, of the City's City Charter and in consideration
of a fee of Forty Six thousand and nine Hundred and fifty three Dollars ($46,953.00)
payable by Licensee in ten annual installment payments of $5,000, each subsequent
payment due on the first through ninth anniversaries of this agreement, to account for
the fee plus appropriate and lawful interest in a total amount of $50,000, the receipt of
the first payment of $5,000 which is acknowledged, the City has granted and conveyed,
and by these presents does grant and convey to Licensee, for the term and upon the
conditions stated in this License, a License for Street Right of Way Use to allow the
Licensee to construct a parking lot expansion project to better serve the needs of Ayers
Plaza Shopping Center tenants in full compliance with the City of Corpus Christi and
with the conditional approval letter dated 04-13-15 Exhibit D of the Texas Department of
Transportation, at all times subject to the Licensee' compliance with the conditions
specified in this License, as shown in Exhibit "A" (Location Map), Exhibit "B" (Plan View)
are attached to this License and incorporated into this License by reference as if fully
set out herein in their entirety. The area in which the License is granted for the location
of the Licensee's Parking Lot is referred to in this License as the "License Area."
TO HAVE AND TO HOLD the same granted unto Licensee, its successors, and
assigns, together with the right under the conditions specified in this License, to at any
time enter upon the above described License Area to install, operate, maintain, repair,
or remove Licensee's Parking Lot, and being further understood that the License
granted by this License is subject to the Licensee's compliance at all times with the
following conditions, the City and Licensee agree as follows:
A. This License, and the rights granted under the License, may be revoked at
any time by the City upon providing the Licensee not less than 30 calendar
days' notice in writing by the City's City Manager, or his designee ("City
Manager"). In the event of a revocation by the City Manager or earlier
termination of this License by either party, any unpaid portion of the $50,000
due under this License is forgiven by the City to the Licensee, but such
portion already paid to City is not refundable to the Licensee.
License for Street Right of Way Use—Ayers Plaza Page 1 of 8
B. This License is perpetual unless the Licensee or the City or Texas DOT
provides written notice of intent to amend or terminate this License.
C. This License may not be assigned by Licensee without the City Manager's
prior written consent.
D. The Licensee shall acquire and maintain at all times for the term of this
License insurance coverage pertaining to the License Area granted under this
License and the activities authorized by this License. The types of required
insurance coverage's must be in the minimum amounts set forth in the
attached Exhibit "C," the substantive content of Exhibit "C" being incorporated
by reference into this License as if fully set out here in its entirety. The
insurance policies must name the City as an additional insured and may not
be canceled, renewed, or materially changed by Licensee unless at least ten
(10) days advance written notice has been provided to the City. Upon the City
Manager's or his designee written request, Licensee shall provide copies of
all requested insurance policies to the City's City Attorney.
E. Should construction be deemed necessary by Licensee in the License Area,
construction plans and specifications for all proposed work shall be submitted
in advance by the Licensee to the City's City Engineer for approval prior to
beginning the construction process. The plans must show the depth, and
location of the proposed construction and distance from existing water, storm
water, wastewater, and gas lines. The Licensee shall also comply with any
other laws, rules, regulations, and ordinances applicable to construction in the
City and in the public right-of-way, including obtaining all required permits.
F. Prior to the start of any approved construction, Licensee shall require every
contractor and subcontractor to provide a Certificate of Insurance reflecting
insurance in coverage amounts as set forth in Exhibit "C." Additionally,
Licensee shall require their contractors and subcontractors to indemnify the
City, its officers, officials, employees, representatives, agents, and invitees in
the same manner that Licensee has provided indemnification to the City
pursuant to this License.
G. Licensee shall provide all necessary and proper safety devices so as to
prevent injuries or accidents in the License Area, in as much as possible.
H. At least 48 hours prior to beginning any approved construction, Licensee shall
contact 1-800-DIG-TESS and the Lone Star Notification Center (1-800-669-
8344), and any other required agency or authority. Additionally, at least 48
hours prior to beginning any approved construction, Licensee shall give notice
and verify depth and location of communication lines or communication
fiber optic cables, whichever is applicable, to the following:
License for Street Right of Way Use—Ayers Plaza Page 2 of 8
• City Utility Departments, including Water, Storm water, Wastewater and
Gas;
• American Electric Power(AEP);
• American Telephone and Telegraph (AT&T);
• CenturyTel;
• Time Warner;
• Grande Communications; and
• Any and all other certified telecommunications providers.
A City inspector may request a utility line be uncovered to verify its depth or
location.
I. Any construction process and use of the License Area by Licensee shall not
interfere with the construction, installation, operation, maintenance, repair,
removal or replacement by the City or any of its agents, contractors, or
franchisees of any existing or future proposed sidewalks, utility lines, or other
uses. If the City or any franchisee with utilities currently located in said public
right-of-way needs access to the right-of-way, Licensee shall pay for
removing the Parking Lot in the License Area to allow access to utility lines for
maintenance, repair, removal, or replacement of the utility lines. The
Licensee shall repair the License Area to its original condition or cease to use
the License Area, at which time this LICENSE terminates immediately.
J. Traffic Engineer requirements pertaining to this License, if applicable in
context:
1. At least 48 hours prior to commencing any approved construction, the
Licensee shall file and obtain approval for a traffic control plan with the
City's Traffic Engineer. No closure or barricading of a public right-of-way
or any portion of a public right-of-way may occur before approval of the
traffic control plan and, if applicable, approval of a detour or barricade plan
has been obtained from the City's Traffic Engineer.
2. Should Licensee require a trench, pit, or similar excavation be dug during
approved construction, the Licensee shall file and obtain approval for
barricading said trench, pit, or excavation in accordance with the Texas
Manual on Uniform Traffic Control Devices from the City's Traffic
Engineer. [See paragraph "P" of this License for additional requirements
regarding trenches, pits and similar excavations.]
K. If, as determined by the City Manager, damage occurs to any gas, water,
storm water, or wastewater line, Licensee shall allow the City immediate
access to the License Area to perform an assessment, make repairs, or take
any other action deemed necessary by the City. Determination of the extent
of damage and repairs necessary to restore the utility line(s) shall be made by
the City Manager. All costs of the City associated with said damage and
License for Street Right of Way Use—Ayers Plaza Page 3 of 8
repair, including labor and materials, shall be paid by Licensee within 30 days
of the City's invoice.
L. Should construction become necessary near existing water or wastewater
lines, Licensee shall take every precaution not to disturb the soil surrounding
any such lines, including all thrust blocks.
M. If any approved work is conducted near any existing water main, it shall be
done under the inspection of a City inspector at a daily rate of three-hundred
ten dollars and thirty-five cents ($310.35) for each day spent inspecting
construction, installation, maintenance, repair, removal, or replacement in the
License Area. A half-day, being four hours or more of work time by the City
inspector, constitutes a whole working day for purposes of calculation. Any
time in excess of eight hours a day, or on Saturday, Sunday or holidays, shall
be calculated at a daily rate of fifty-eight dollars and eighteen cents ($58.18)
per hour. Any assessed inspection fees shall be paid by the Licensee to the
appropriate City department within 30 days of the City's invoice. These
amounts will be adjusted annually each year on August 1 to reflect any pay
increases that may be attributable to the rates charged.
N. The parties acknowledge that the Parking Lot is not owned by the City. At
any and all times Licensee shall be solely responsible for the repair and
maintenance of the Parking Lot and License Area, including any costs
associated with damage occurring due to natural weather
elements/occurrences or man-made forces. Should damage occur to the
Parking Lot or License Area, regardless of the type of damage, Licensee shall
repair the damage upon notice by the City. Failure to so repair terminates
this License without any further action needed on the part of the City.
0. Licensee shall repair, or cause to be repaired, any damage to driveways,
culverts, head walls, landscaping, sidewalks, curbs, gutters, and any other
structure, public or private, resulting from or caused by reason of
construction, installation, maintenance, repair, removal, replacement or
operation of the Parking Lot and License Area.
P. If a trench, pit, or other excavation is required during approved construction,
no trenches, pits, or other excavation, other than bore pits, shall be left open
overnight, except as specifically authorized by the City's Director of
Development Services and City's Engineer. Bore pits are not allowed open
for a period of longer than 14 calendar days, regardless of location. All
trenches, pits, or other excavations, other than bore pits, shall be backfilled by
the Licensee promptly and in accordance with current City standards and
specifications and as per the City inspector's request. All trenches, pits, and
other excavations, including bore pits, shall be barricaded by the Licensee in
accordance with the Texas Manual on Uniform Traffic Control Devices and as
License for Street Right of Way Use—Ayers Plaza Page 4 of 8
approved by the City's Traffic Engineer. [See paragraph "J.2." for additional
requirements pertaining to trenches, pits, and other excavations.]
Q. If backfilling becomes necessary, all backfill, specifically including that in and
around existing utilities, shall be made by Licensee according to current City
standards and specifications and as required by a City inspector.
R. Use of the Parking Lot authorized by this License is strictly limited to providing
service to the Ayers Plaza Shopping Center, located at 4918 Ayers St., in the
License Area.
S. INDEMNIFICATION. By its acceptance of this license, the Licensee
covenants and agrees fully to indemnify and hold harmless the City and
the elected officials and officers and employees of the City, individually
or collectively, from and against any and all costs, claims, liens,
damages, losses, expenses, fees, fines, penalties, proceedings, actions,
demands, causes of action, liability, and suits of any kind and nature,
including but not limited to, personal injury or death and property
damage, made upon the City, directly or indirectly arising out of,
resulting from or related to Licensee's activities under this license,
including any acts or omissions of Licensee, and any respective agent,
officer, director, representative, employee, consultant, or sub-licensee
of Licensee, and their respective officers, agents, employees, directors
and representatives while in the exercise or performance of the rights or
duties under this license, all without, however, waiving any
governmental immunity available to the City under Texas law and
without waiving any defense of the parties under Texas law. The
provisions of this indemnification are solely for the benefit of the parties
to this license and are not intended to create or grant any rights,
contractual or otherwise, to any other person or entity. Licensee shall
promptly advise the City in writing of any claim or demand against the
City or Licensee known to the Licensee related to or arising out of
Licensee's activities under this license and shall see to the investigation
and defense of the claim or demand at Licensee's cost. The City shall
have the right, at its option and at its own expense, to participate in the
defense without relieving Licensee of any of its obligations under this
paragraph. The City shall cooperate with Licensee in the defense of all
claims, proceedings, actions, and suits subject to this indemnification.
This indemnification shall not extend to any costs, claims, liens,
damages, losses, expenses, fees, fines, penalties, proceedings, actions,
demands, causes of action, liability, or suit to the extent they directly or
indirectly arise out of, result from or relate to the negligent or wrongful
acts or omissions of City or its officers, agents, employees,
representatives, consultants, or contractors. This indemnification
survives the termination or expiration of this license.
License for Street Right of Way Use—Ayers Plaza Page 5 of 8
T. All signatories signing this License warrant and guarantee that they have the
authority to act on behalf of the entity represented and make this License
binding and enforceable by their signatures.
U. Unless otherwise stated in this License, any notice required or permitted to be
given under this License must be in writing and sent by certified mail, return
receipt requested to the following addresses:
If to Licensee: B-Y 4918 Ayers, LTD
4629 Marco Drive
San Antonio, TX 78218-5420
If to the City: City of Corpus Christi
Attn: Director, Development Services Department
P. O. Box 9277
Corpus Christi, TX 78469-9277
Any party shall, by notice to the others in accordance with the provisions of
this paragraph, specify a different address or addressee for notice purposes
within 10 days of any address change.
V. This License shall be construed under and in accordance with the laws of the
State of Texas, and all obligations of the parties created pursuant to this
License are performable in Nueces County, Texas. Venue for all actions
arising from, out of, or related to this License must be brought in Nueces
County, Texas.
W. The Licensee further agrees, in compliance with the City of Corpus Christi
Ordinance No. 17112, to complete, as part of this License, the completed
"Disclosure of Interests" form is attached and incorporated by reference into
this License as Exhibit "E" as if set out here in their entireties..
X. This instrument, including exhibits, constitutes the entire License between the
City and the Licensee, and no prior written, oral, or contemporaneous
promises, warranties, or representations shall be binding upon any parties.
This License may only be amended by written instrument signed by authorized
representatives of the City and Licensee, approved by Texas DOT and
approved as required by City law.
License for Street Right of Way Use—Ayers Plaza Page 6 of 8
EXECUTED IN DUPLICATE this day of , 20 .
B-Y 4918 Ayers, LTD
Date
, President
Board of Trustees
ACKNOWLEDGMENT
STATE OF TEXAS §
§
COUNTY OF NUECES §
This instrument was acknowledged before me on , 2015, by
, President, B-Y 4918 Ayers, LTD, on behalf of
said Corporation.
Notary Public's Signature
License for Street Right of Way Use—Ayers Plaza Page 7 of 8
ATTEST: CITY OF CORPUS CHRISTI
By:
City Secretary Daniel M. Grimsbo, P.E.
Director, Development Services Department
Approved as to legal form: , 2015
Julian Grant
Senior Assistant City Attorney
for the City Attorney
STATE OF TEXAS §
§
COUNTY OF NUECES §
This instrument was acknowledged before me on , 2015, by
Daniel M. Grimsbo, P.E., as Director, Development Services Department, of the City of
Corpus Christi, a Texas Municipal Corporation, on behalf of said corporation.
Notary Public's Signature
License for Street Right of Way Use—Ayers Plaza Page 8 of 8