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THE STATE OF TEXAS §
COUNTY OF NUECES §
USE PRIVILEGE AGREEMENT
This Use Privilege Agreement ("Agreement") is made this ~ day of I , 2009,
between the City of Corpus Christi ("City"), a Texas home rule municipal orporation,
acting through its duly authorized City Manager, 'Angel, R. Escobar, and Western
Enterprises, Inc. ("Permittee"), acting through 5'ar~-, 2ch~ , its duly authorized officer.
1. The City is the owner of the following described real property ("Property"):
American Bank Center Arena. A description of the Property and site map are
attached to and incorporated into this agreement as Exhibit A.
2. The Permittee desires to use the roof of the Property for the purpose of staging a
fireworks display in conjunction with the 2009 Buc Days, to be held on April 24, 2009. The
Permittee has submitted an application to the Corpus Christi Fire Department for a
fireworks permit. A listing of products to be fired from the Property is found on the
attached and incorporated Permit Application as Exhibit B.
3. In consideration of applicable City permit fees, payable upon execution of this
Agreement, and Permittee's covenants expressed in this Agreement, the City grants
Permittee, under the conditions stated in paragraph 4 of this Agreement, the use of the
Property, described in Exhibit A for the purposes stated in paragraph 2 of this Agreement,
starting on April 24, 2009 and terminating on April 24, 2009.; however, such use is
conditioned upon Permittee obtaining the proper permit from the Corpus Christi Fire
Department. The City Manager is authorized to extend the term of this Use Privilege
Agreement in the event the April 24, 2009 fireworks is cancelled due to weather conditions.
4. Permittee's use of the property is subject to the following conditions:
A. This Agreement may be revoked at any time with or without without cause by the City
of Corpus Christi's City Manager, or the City Manager's designee ("City Manager"), giving
the Permittee in writing 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 City Manager. Permittee must submit a detailed safety plan for
review and approval by the Corpus Christi Fire Marshall, at least 15 business days prior to
the fireworks event.
2009-142
04/14/09
Ord. 028110
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D. INDEMNIFICATION.
Permittee, its Officers, Members, Partners, Employees, Agents, Contractors and
Licensees (hereinafter called "Permittee" for purposes of this subparagraph) shall
fully indemnify, save and hold harmless the City of Corpus Christi, its Officers,
Employees, Agents, Licensees, and Invitees ("Idemnitees") against: (1) any and all
damages, including but not limited to loss of use, damage to property or injuries to
or death of any person or persons (including but not limited to property and
officers, employees, agents, licensees and invitees of and (2) any and all claims,
demands, suits, actions, liabilities, costs, expenses (including but not limited to
reasonable attorney fees, expert witness fees and all associated defense fees),
causes of action, or other legal, equitable or administrative proceedings of any kind
or nature whatsoever, of or by anyone whomsoever, regardless of the legal
theory(ies) upon which premised, including but not limited to contract, tort, express
and/or implied warranty, strict liability, and worker's compensation, in any way
resulting from, connected with, or arising out of, directly, Permittee's operations or
performance, or its use or occupancy of real or personal property pursuant to this
Agreement, including actions or omissions of consultants, and acts or omissions of
the officers, members, partners, employees, agents, contractors or licensees of
Permittee or its consultants; provided however, that Permittee need not indemnify
City of Corpus Christi or its officers, employees, agents, licensees, and invitees
from damages proximately caused by and apportioned to the sole negligence of City
of Corpus Christi officers, employees, agents, licensees and invitees.
Insurance coverage requirements specified herein shall in no way lessen or limit
the liability of Permittee under the terms of this indemnification obligation.
Permiftee shall obtain, at its own expense, any additional insurance that it deems
necessary for City of Corpus Christi's protection in the performance of this
Agreement. This defense and indemnification obligation shall survive the expiration
or termination of this Agreement.
E. Permittee must acquire and maintain commercial general liability insurance pertaining
to the use of the Property and the any activities related to the use of the property
authorized by this Agreement, in the minimum amounts of insurance shown in attached
Insurance Exhibit 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 replaced with comparable replacement policies)
and may not be canceled or materially changed.
F. Permittee's use of the Property must not interfere with the operation of the City's
American Bank Center. Any equipment placed by Permittee must be removed by the
Permittee and the Property restored to its original condition before this Agreement expires.
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G. If City needs access to the Property, Permittee must pay for removing or relocating any
improvements or equipment, to allow access to the Property.
H. Permittee 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 all times, regardless
of the type of damage that may occur, within 24 hours of notice of damage to Permittee.
Permittee agrees to pay City Consultant to document the roof membrane condition before
the fireworks event, and after the fireworks event.
J. Permittee must comply with all applicable Federal, State, and local laws and
regulations, as may be amended. Permittee must obtain City fireworks permit from Corpus
Christi Fire Department prior to event.
K. Permittee must not begin use of the Property without 24 hours prior notice to the
Corpus Christi Fire Marshal.
L. If damage occurs to any City property, 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.
M. Permittee must not store or leave any equipment or material in City property
unattended or overnight.
N. The Permittee must provide proper safety and security devices to prevent possible
injuries or accidents. The Permittee must provide Fire Marshal with safety plan for review
and approval by the Fire Marshal.
O. The Property must be maintained in neat and orderly fashion without visible trash,
paper and other unsightly debris.
5. All references herein to Permittee include Permittee's contractor(s),
agent(s), and employee(s) if applicable.
6. Choice of Law and Venue: This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Texas. Venue for any dispute
arising from or related to this Agreement shall be in Nueces County, Texas.
IN TESTIMONY WHEREOF, the City of Corpus Christi has caused these presents to be
executed on this the aon day of , 2009.
ATTEST:,/, Y1`^r/° CITY O .CORPUS CHRISTI
l{I; By: ~~~w
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Armando Chapa 'Angel R. Escobar
City Secretary City Manager
By' ~~vN ~ COUNCIL
Assistant City A r ey
APPROVED AS TO LEGAL FORM: 4 (ao~o5' n, /J n f~gl i
Western Enterprises, Inc., the Permittee, agrees to keep and perform the conditions and
be bound by all of the terms imposed by the Use Privilege Agreement.
B : ~ ~'
e:
Title: i 0 ~ re '.
Permitted: Western Enterprises, Inc
This instrument w,~s acknowledged before me on ~}~ri / /~ . ~OU`~' , 2009,
by ,tea-/~ ec~a- ,Chief Executive Officer, on behalf of Western Enterprises,
Inc.
CKIaY\orvr,~
THE STATE OF §
COUNTY OF N#~€S §
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No aryublic, State of T~o~cas- OK1o.S~,omo~ •,~~,~ogY vue`c , N
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Expiration Date: j~_~ D9 • a~~~~ y
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EXHIBIT -INSURANCE REQUIREMENTS FOR FIREWORKS EVENT
I. PERMITTEE'S LIABILITY INSURANCE
A. 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. Permittee must not allow any subcontractor to commence work until all similar
insurance required of the subcontractor has been obtained.
B. 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 of Corpus Christi must be named
as an additional insured for the General Liability policy and a blanket waiver of
subrogation in favor of the City of Corpus Christi is required on the General Liability
and WC olicies.
TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE
30 day written notice of cancellation, non-renewal, Bodily Injury and Property Damage
material change or termination is required on all
certificates Per occurrence aggregate
COMMERCIAL GENERAL LIABILITY including: $1,000,000 COMBINED SINGLE LIMIT with
$500,000 sub-limit for Damage to Rented
1. Commercial Form Premises
2. Premises -Operations
3. Products/ Completed Operations Hazard
4. Contractual Liability
5. Broad Form Property Damage
6. Independent Contractors
7. Hostile Fire Exception
WHICH COMPLIES WITH THE TEXAS WORKERS'
COMPENSATION ACT AND PARAGRAPH II OF
WORKERS' COMPENSATION THIS EXHIBIT
EMPLOYERS' LIABILITY $500,000
C. In the event of accidents of any kind, Permittee must furnish the Risk Manager with
copies of all reports of such accidents within 10 days of any accident.
2008 Buc Days Fireworks Permit ins. req.
3.-31-08 ep Risk Mgmt.
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II. ADDITIONAL REQUIREMENTS
A. 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 with 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.
B. 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 in favor of the City of Corpus
Christi is required on the General Liability and Workers Compensation policies.
If your insurance company uses the standard ACORD form, the cancellation
clause (bottom right) must be amended by adding the wording "changed or"
between "be" and "canceled", and deleting the words, "endeavor to", and deleting
the wording after "left". In lieu of modification of the ACORD form, separate policy
endorsements addressing the same substantive requirements are mandatory.
The name of the project must be listed under "Description of Operations".
At a minimum, a 30-day written notice of cancellation, material change, non-renewal
or termination is required.
C.. 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.
2008 Buc Days Fireworks Permit ins. req.
3-31-08 ep Risk Mgmt.
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