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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