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HomeMy WebLinkAboutC2009-142 - 4/14/2009 - ApprovedPage 1 of 6 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 WCStCCII F.lltCrprlSCS ~emporary Internet Files\OLKA2\Buc Days Use Privilege for Fireworks April 15 2009.doc Page 2 of 6 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. C:\Documents and SettingsWdministrator\LOCaI Settings\Temporary Internet Files\DLKA2\Buc Days Use Privilege for Fireworks April 15 2009.doc Page 3 of 6 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 C:\DOCUments and SettingsWdministrator\LOCaI Settings\Temporary Internet Files\DLKA2\BUC Days Use Privilege (or Fireworks April 15 2008.doc Page 4 of 6 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 § ~~eld ~~-__-• No aryublic, State of T~o~cas- OK1o.S~,omo~ •,~~,~ogY vue`c , N O Expiration Date: j~_~ D9 • a~~~~ y h n- • v °' • _ 1" J • ~iA•~°'oF oV~~o® C:\DOCUments and SettingsW.dminisVator\LOCaI Settings\Temporary Internet Files\OLIG42\BUC Days Use Privilege for Fireworks April 15 2008.doc Page 5 of 6 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. C:\D000ments and SedingsV+dministrator\LOCaI Settings\Temporary Intemel Files\OLKA2\Buc Days Use Privilege for Fireworks April 15 2009.doc Page 6 of 6 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. C:\DOCUments and SettingsWdminislrator\Local Settings\Temporary Intemel Files\OLKA2\Buc Days Use Pdvilege for Fireworks April 15 2g09.doc