HomeMy WebLinkAboutC2005-283 - 6/14/2005 - ApprovedUSE PRIVILEGE AGREEMENT
THE STATE OF TEXAS §
COUNTY OF NUECES §
This Use Privilege Agreement ("Agreement") is made this f/_O day of Mc~,', 2005,
between the City of Corpus Christi ("City"), a Texas home rule municipal corporation,
acting through George K. Noe, its duly authorized City Manager, under Article IX,
Section 1, Corpus Christi City Charter, and Old Concrete Street, LTD ("Permittee"),
acting through William R. Durrill, Jr., Chief Financial Officer, its duly authorized officer.
1 The City is the owner of the following described real property ("Property"):
Portions of the City of Corpus Christi Broadway Treatment Plant, also
described as portions of Blocks 47, 48, 57, and 58, Beach Portion of an
addition to the City of Corpus Chdsti as shown on the map recorded in
Volume A, at Pages 2 and 3 of the Map Records of Nueces County. A
metes and bounds description of the Property and site map are attached
to and incorporated into this agreement as Exhibits A and B.
2. The Permittee desires to use the Property for the purpose of staging a fireworks
display in conjunction with a 4~h of July concert at the adjacent Concrete Street
Amphitheater. The Permittee will temporary install mortars, racks, fidng boxes,
electronic firing systems, and splitters on the Property. Approximately 2,043 shells will
be fired from the installed equipment during the performance.
3. In consideration of $460.00, payable upon execution of this Agreement, and
Permittee's covenants expressed in this Agreement, the City grants Permit'tee, under
the conditions stated in paragraph 4 of this Agreement, the use of the Property,
described in Exhibits A and B, for the purposes stated in paragraph 2 of this
Agreement, starting on July 2, 2005 and terminating on July 3, 2005.
4. Permittee's use of the property is subject to the following conditions:
A. This Agreement may be revoked at any time by the City of Corpus Chdsti's
City Manager, or the City Manager's designee ("City Manager"), giving the
Permittee in writing 3 days notice of the revocation of this agreement.
B. Permittee may not assign this Agreement without the City Manager's prior
written consent.
C. Permittee must submit a detailed description of its planned use of the
Property, including drawings showing the specific location where the equipment
identified in Paragraph 2 will be installed and specifications for the fireworks that
will be used, to the City's Fire Marshall and Wastewater Director.
2005-283
06/14/05
Ord026298
Old Concrele Stree~ I.TD
Page 1 of 7
D. INDEMNIFICATION.
(1) TO THE EXTENT ALLOWED BY TEXAS LAW, PERMITTEE, ITS
OFFICERS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, AND
LICENSEES (HEREINAFTER CALLED "PERMIT-rEE" FOR PURPOSES
OF THIS SUBPARAGRAPH) SHALL FULLY INDEMNIFY, SAVE, AND
HOLD HARMLESS THE CITY OF CORPUS CHRISTI, ITS OFFICERS,
EMPLOYEES, AGENTS, LICENSEES, AND INWTEES
("INDEMNITEES") AGAINST ANY AND ALL LIABILITY, DAMAGE, LOSS,
CLAIMS, DEMANDS, AND ACTIONS OF ANY NATURE WHATSOEVER
ON ACCOUNT OF PERSONAL INJURIES (INCLUDING, WITHOUT
LIMITATION ON THE FOREGOING, WORKERS' COMPENSATION AND
DEA TH CLAIMS), OR PROPERTY LOSS, OR DAMAGE OF ANY KIND
WHATSOEVER, WHICH ARISE OUT OF OR ARE IN ANY MANNER
CONNECTED WITH, OR ARE CLAIMED TO ARISE OUT OF OR BE IN
ANY MANNER CONNECTED WITH THE USE OF THE PROPERTY
UNDER THIS AGREEMENT, INCLUDING SAID INJURY, LOSS OR
DAMAGE CAUSED BY THE SOLE OR CONTRIBUTORY NEGLIGENCE
OF THE INDEMNITEES OR ANY OF THEM. PERMITTEE MUST, AT ITS
OWN EXPENSE, INVESTIGATE ALL THOSE CLAIMS AND DEMANDS,
A TREND TO THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND
ALL ACTIONS BASED THEREON WITH COUNSEL SATISFACTORY TO
INDEMNITEES AND PA Y ALL CHARGES OF ATTORNEYS AND ALL
OTHER COST AND F_XPENSES OF ANY KIND ARISING FROM ANY OF
SAID LIABILITY, DAMAGE, LOSS, CLAIMS, DEMANDS, OR ACTIONS.
(2) EXCEPT AS OTHERWISE EXPRESSLY LIMITED B Y THIS
AGREEMENT, IT IS THE INTENT OF THE PARTIES TO THIS
AGREEMENT THA T ALL INDEMNITY OBLIGATIONS AND LIABILITIES
ASSUMED UNDER THE TERMS OF THIS AGREEMENT BE WITHOUT
MONETARY LIMIT AND WITHOUT REGARD TO THE CAUSE OR
CAUSES, INCLUDING PRE-EXISTING CONDITIONS. THE INDEMNITY
CONTAINED IN THIS SUBPARAGRAPH D APPLIES, WITHOUT
LIMITATIONS, TO ANY VIOLA T/ON OF ANY APPLICABLE
ENVIRONMENTAL LAW IN EFFECT DURING THE TERM OF THIS
AGREEMENT, INCLUDING ANY EXTENSIONS, AND ANY AND ALL
MATTERS ARISING OUT OF ANY ACT, OM/SS/ON, EVENT OR
CIRCUMSTANCE EX/STING OR OCCURRING DURING THE TERM OF
THIS AGREEMENT, INCLUDING ANY EXTENSIONS (INCLUDING
WITHOUT LIMITATION THE PRESENCE ON THE PROPERTY OR
RELEASE FROM THE PROPERTY OF HAZARDOUS SUBSTANCES OR
SOLID WASTE DISPOSED OF OR OTHERWISE RELEASED PR/OR TO
THE RELEASE DA TE), REGARDLESS OF WHETHER THE ACT,
OMISSION, EVENT, OR CIRCUMSTANCE CONSTITUTED A
VIOLA T/ON OF ANY APPLICABLE ENVIRONMENTAL LA W OR
REGULA T/ON A T THE TIME OF/TS EXISTENCE OR OCCURRENCE.
R53704,A1.DOC Page 2 of 7
THE TERMS "HAZARDOUS SUBS TANCE ' AND "RELEASE°SHALL
HA VE THE MEANINGS SPECIFIED IN COMPREHENSIVE
ENWRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
OF 1980 ("CERCLA"), AS AMENDED, AND THE TERMS ~OLID
WAS TE 'AND ~DISPOSED ~ SHALL HA VE THE MEANINGS SPECIFIED
IN RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
("RCRA "), AS AMENDED; PROVIDED, IN THE EVENT EITHER CERCLA
OR RCRA IS AMENDED SO AS TO BROADEN THE MEANING OF ANY
TERM DEFINED BY THOSE ACTS, SUCH BROADER MEANING SHALL
APPLY SUBSEQUENT TO THE EFFECTIVE DATE OF SUCH
AMENDMENT AND PROVIDED FURTHER, TO THE EX-rENT THAT
THE LAWS OF THE STATE OF TEXAS ESTABLISH A MEANING FOR
"HAZARDOUS SUBSTANCE," ~RELEASE, " OR ~JOLID WASTE, "OR
~DISPOSAL ~ WHICH IS BROADER THAN THAT SPECIFIED IN EITHER
CERCLA OR RCRA, SUCH BROADER MEANING SHALL APPLY.
(3) IF ANY SUBSTANCES DISCHARGED BY THE PERMITTEE OR ANY
SUBSTANCES THAT RESULT FROM THE COMBUSTION OF
SUBSTANCES DISCHARGED BY THE PERMITTEE, WHETHER THE
SUBSTANCES ARE DISCHARGED FROM THE PROPERTY OR AREAS
ADJACENT TO THE PROPERTY, FALL INTO OR OTHER ENTER ANY
OF THE CITY'S WASTEWA TER TREATMENT WORKS AND
INTERFERE WITH THE TREATMENT PROCESS OR CAUSE THE
EFFLUENT PRODUCED B Y THE TREATMENT WORKS NOT TO MEET
THE STANDARDS FOR EFFLUENT AUTHORIZED UNDER THE CITY'S
CURRENT PERMITS FROM THE UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY OR TEXAS NATURAL RESOURCE
CONSERVATION COMMISSION, THE PERMIT'FEE SHALL FULLY
INDEMNIFY, SAVE, AND HOLD HARMLESS THE CITY OF CORPUS
CHRISTI, ITS OFFICERS, AND EMPLOYEES AGAINST ANY AND ALL
CIVIL AND ADMINISTRATIVE PENAL TIES AND CRIMINAL FINES THAT
RESULT FROM THE DISCHARGE OF EFFLUENT THAT DOES NOT
MEET THE TERMS OF THE CITY'S NATIONAL POLLUTION
DISCHARGE ELIMINATION SYSTEM PERMIT OR TEXAS POLLUTION
DISCHARGE ELIMINATION SYSTEM PERMIT AND SHALL BEAR ALL
COSTS INVOLVED WITH BRINGING THE BROADWAY WASTEWATER
TREATMENT PLANT BACK INTO COMPLIANCE WITH ITS PERMITS.
E. Permittee must acquire and maintain commercial general liability insurance
pertaining to the use of the Properly and the any activities related to the use of
the property authorized by this Agreement, in the minimum amounts of insurance
shown in Exhibit C, which is the attached to and incorporated into this
Agreement. The insurance policies must show the City as a named additional
insured. Upon City Manager's written request, Permittee shall provide copies of
all insurance policies to the City's Risk Manager. Unless the City's Risk Manager
is given 30 days advance written notice, the policies shall be renewed (or
R53704A1 DOC Page 3 of 7
replaced with comparable replacement polic,~es) and may not be canceled or
materially changed.
F. Permittee's use of the Property may not interfere with the operation of the
City's Broadway Wastewater Treatment Plant ("Plant"). Any construction or
equipment installed by Permit'tee must be removed by the Permittee and the
Property restored to its original condition before this Agreement expires.
G. If City needs access to the Property, Permittee must pay for removing or
relocating any improvements or equipment, to allow access to the Plant or any
utility lines for repair, replacement, or maintenance of the utility lines.
H. Permit'tee may not close or barricade a public street, or any portion of the
public street until the Permittee or his contractor has filed an approved traffic
control plan with City's Traffic Engineering Office.
I. Permittee must pay to maintain or repair the Property being used at ail times,
regardless of the type of damage that may occur, within 24 hours of notice of
damage to Permittee. Failure to do so terminates this Agreement immediately.
J. Permittee must comply with all applicable Federal, State, and local laws and
regulations, as may be amended.
K. Before digging or doing any excavation on the Property, Permittee must verify
depth and location of existing Water, Wastewater, Gas, AEP (C.P.& L.),
S.W.BT., Time Warner, and Grande Communications (ClearSource) lines, as
well as Espire, KMC, ICG, CAPROCK, and communication fiber optic cables.
Prior to the start of any excavation, the Permittee or Permittee's Agent must call
the Texas One Call System, at (800) 245-4545, 1-800-DIG-TESS, and Lone Star
Notification Center, at (800) 669-8344, for locations of existing utilities. A City
Inspector may request a utility line be uncovered to verify its depth or location.
L. Permittee may not begin work without 48 hours prior notice to the AEP (C.P.&
L), S.W.B.T., Grande Communications (ClearSource), Time Warner, Water,
Gas, Storm Water, and Wastewater Divisions along with the Espire, KMC, ICG,
and CAPROCK, communication fiber optic companies.
M. Permittee must properly tamp backfill around existing utilities in accordance
with the City of Corpus Christi Standard Specifications, including City Water
Distribution System Standards.
N. If damage occurs to any gas, storm, water or wastewater line, as determined
by the City's representative, a City Gas, Water, or Wastewater Division crew wJlJ
be brought in and allowed immediately to make ail repairs. All City's costs (labor
and materials) associated with the repairs must be paid by the Permittee within
30 days of City Manager's invoice thereof. City's representatives will determine
the extent of damage and amount of repairs to the utility line(s).
R53704A1 DOC Page 4 of 7
O. Work around any existing water main must be done under the inspection of a
Water Division Inspector at a daily rate of $286.80 for each day spent inspecting
construction, maintenance, repair, replacement or relocation of any
improvements made to the Property under this Agreement. A half-day (4 hours)
or more of work constitutes a whole working day for purpose of calculation. Any
time in excess of 8 hours a day, or on Saturday, Sunday or Holidays, must be
calculated at a daily rate of $53.77 an hour. Permittee must pay these funds to
the City of Corpus Christi, Water Department. These amounts will be adjusted
annually on August 1 to reflect any pay increase.
P. Permit-tee must take every precaution not to disturb the soil surrounding any
existing water or wastewater line, including all thrust blocks.
Q. Damage to driveways, culverts, head walls and any other structure, public or
private, must be repaired by the Permittee at his expense within 30 days after
being notified of damage to same.
R. Except as specifically authorized in Paragraph 2, Permittee may not store or
leave any equipment or material in City right-of-way overnight.
S. Permittee must notify Street Director, at (361) 857-1940, 24 hours prior to
starting work, and must have a representative present dudng backfilling and
pavement repairs.
T. The Contractor must provide proper safety and secur~ devices to prevent
possible injudes or accidents. No open trenches or pits may be left ovemight. All
trenches must be backfilled promptly, the backfill properly compacted, surface
restored, and the work done in a neat and workmanlike manner.
U. Barrel type barricades, approved by City's Traffic Engineering Office, will be
placed adjacent to all open pits.
V. Because the Property is in full view of the public, it must be maintained in
neat and orderly fashion without visible trash, paper and other unsightly debris.
NOTE: All references herein to Permittee include Permittee's contractor(s), agent(s),
and employee(s) if applicable.
R53704A1.DOC Page 5 of 7
iN TESTIMONY WHEREOF, the City of Corpus Christi has caused these presents to
be executed on this the ~ day of June, 2005.
AT-rEST:
CITY OF CORPUS CHRISTI
Armando Chapa
City Secretary
APPROVED AS TO LEGAL FORM:
For City Attomey
. Noe
City Manager
/'-¢'/ day of June, 2005
THE STATE OF TEXAS §
COUNTY OF NUECES §
This instrument was acknowledged before me on June ~_, 2005, by George K. Noe,
City Manager, City of Corpus Christi, a Texas Municipal Corporation, on behalf of the
corporation.
Notary Public
State of Texas
R53704A1 DOC Page 6 of 7
Old Concrete Street, LTD ,the Perrnittee agrees to keep and perform the conditions and
be bound by all of the terms imposed by the Use Privilege Agreement.
Old Concrete Street, LTD
Title: Chief Financial Officer
THE STATE OF TEXAS §
COUNTY OF NUECES §
REBECCA LYN GREENE
No~ Pu~ic, Sta~ of Te~
My Comn*~i~k:m
Novmllbe~ 22, 2008
This instrument was acknowledged before me on May ~.~ , 2005, by William R.
Durrill, Jr., Chief Financial Officer, on behalf of Old Concrete Street, LTD, a Texas
limited partnership.
'/NOtary 15~u~ ~ate of Texas
?
R53704A1 DOC Page 7 of 7
EXHIBIT B
INSURANCE REQUIREMENTS
PERMI'DI'EE'S LIABILITY INSURANCE
Permittee must not commence work under this agreement until all insurance
required herein has been obtained and such insurance has been approved by
the City. Perrnittee must not allow any subcontractor to commence work until all
similar insurance required of the subcontractor has bccn obtained.
Permittee must furnish to the City's Risk Manager, two (2) copies of Certificates
of Insurance, showing the following minimum coverage by insurance company(s)
acceptable to the City's Risk Manager. The City must be named as an additional
insured for the General Liability policy and a blanket waiver of subrogation is
required on all applicable policies.
TYPE OF INSURANCE
MINIMUM INSURANCE COVERAGE
10-Day written notice of cancellation and
a 30 - day written notice of non-renewal,
material change or termination required
on all certificates
Bodily Injury and Property Damage
Per occurrence aggregate
Commercial General Liability including:
1. Commercial Form
2. Premises- Operations
3. Underground Hazard
4. Products/Completed Operations Hazard
5. Contractual Liability
6. Broad Form Property Damage
7. Independent Contractors
$1,000,000 COMBINED SINGLE LIMIT
AUTOMOBILE LIABILITY~WNED, NON-
OWNED, OR RENTED
$1,000,000 COMBINED SINGLE LIMIT
WORKERS' COMPENSATION
EMPLOYERS' LIABILITY
WHICH COMPLIES WITH THE TEXAS
WORKERS' COMPENSATION ACT AND
PARAGRAPH II OF THIS EXHIBIT
$500,000
In the event of accidents of any kind, Permittee must furnish the Risk Manager
with copies of all reports of such accidents at the same time that the reports are
forwarded to any other interested parties.
R53704B1 doc B-1
B
ADDITIONAL REQUIREMENTS
Permittee must obtain workers' compensation coverage through a licensed
insurance company in accordance with Texas law. The contract for coverage
must be written on a policy and endorsements approved by the Texas
Department of Insurance. Workers' compensation coverage must be in amounts
sufficient to assure that all workers' compensation obligations incurred by
Permittee are promptly met.
Certificate of Insurance:
The City of Corpus Christi must be named as an additional insured on the
General liability coverage and a blanket waiver of subrogation is required on all
applicable policies.
If your insurance company uses the standard ACORD form, the cancellation
clause (bottom right) must be amended by adding the wording "changed or"
between "be" and "canceled", and deleting the words "endeavor to", and deleting
the wording after "leff'.
The name of the project must be listed under "Description of Operations".
At a minimum, a 30-day written notice of material change, non-renewal or
termination and a 10 -day written notice of cancellation is required.
If the Certificate of Insurance on its face does not show the existence of the
coverage required by items 1 .B(1)-(7), an authorized representative of the
insurance company must include a letter specifically stating whether items
1.B.(1)-(7) are included or excluded.
R53704B1 doc B-2