HomeMy WebLinkAboutC2011-516 - 12/13/2011 - Approved4
USE PRIVILEGE AGREEMENT
THE STATE OF TEXAS §
COUNTY OF NUECES §
THAT the City of Corpus Christi ( "CITY "), a Texas Home Rule Municipal Corporation,
acting through its duly authorized City Manager, Ronald L. Olson, in accordance with
Article IX, Section 1 of the Corpus Christi City Charter, and in consideration of Five
Hundred and Sixty Dollars ($560.00), paid by Pietsch Realty Investments, LLC., the
owner of 326. N. Chaparral Street, Corpus Christi, Texas, and permittee herein,
( "PERMITTEE "), whose business office is located at 4938 South Staples, Corpus
Christi, Texas, the receipt of which is acknowledged, has granted and conveyed and by
these presents does grant and convey, upon the conditions hereinafter stated, unto said
PERMITTEE', a use privilege for the right to use an area that is a 4' x 20' section (80
square foot portion) of public CITY sidewalk right -of -way as an outdoor seating space
(hereinafter "USE PRIVILEGE AREA "), located adjacent to 326 N. Chaparral Street,
within the CITY, Nueces County, Texas. (See Exhibit "A" for Site Map and Exhibit "B"
for Site Plan, attached and incorporated);
TO HAVE AND TO HOLD the same unto PERMITTEE, its successors and assigns,
together with the right under these conditions, at any time to enter upon the above
described CITY sidewalk right -of -way, also known as the USE PRIVILEGE AREA, to
repair or maintain said area and it is further understood that the use privilege of the area
is granted subject to PERMITTEE'S compliance with the following conditions:
A. This Use Privilege Agreement, (hereinafter "AGREEMENT "), may be revoked
at any time upon the giving of 60 days notice in writing by the CITY'S City
Manager, or designee (hereinafter "CITY MANAGER ").
B. Once approved by the PERMITTEE and thereafter the CITY MANAGER, this
AGREEMENT is for a term of one year, and automatically renews annually,
unless either the CITY or PERMITTEE gives written notice of termination to
the other party at least 60 days before the end of each annual term.
C. PERMITTEE shall not assign this AGREEMENT without the CITY
MANAGER'S prior written consent. Any appropriately approved assignment
of this AGREEMENT to any tenant of PERMITTEE, or other successor or
assign, shall cause all terms and conditions of this AGREEMENT to become
binding upon said tenant, successor or assign.
'All references herein to PERMITTEE include PERMITTEE'S contractor(s), agent(s) and
ernployee(s), if applicable.
2011 -516
12/13/11
Ord 029326
Pietsch Realty Investments, LLC
INDEXED
Use Privilege Agreement
Pietsch Realty Investments
Page 2 of 8
D. With regard to the seating space located within the USE PRIVILEGE AREA:
1. PERMITTEE must provide a minimum thirty -six inch (36 ") clearance
between the existing parking meters and any tables or chairs located
within the overall nine foot eight inch (9'- 8 ") width area of the sidewalk.
2. PERMITTEE must provide a minimum door way turn clearance of sixty
inches (60"), in compliance with the American Disabilities Act (ADA).
3. PERMITTEE shall comply with all applicable Federal, State, County
and City laws and ordinances, specifically including those regarding
ADA compliance and those applicable to smoking areas, if the USE
PRIVILEGE AREA is used for such a purpose.
4. PERMITTEE shall not place any tables or chairs in the USE
PRIVILEGE AREA other than during the hours of operation of the
business. No tables, chairs, other equipment or material may be
stored or left in a CITY right -of -way overnight, except as specifically
authorized by the CITY MANAGER.
E. As this USE PRIVILEGE AREA is in full view of public, it shall be maintained
in a neat and orderly fashion, without visible trash or other unsightly debris.
F. PERMITTEE shall acquire and maintain commercial general liability
insurance pertaining to the USE PRIVILEGE AREA and the activities related
to the USE PRIVILEGE AREA authorized by this AGREEMENT, in the
minimum amounts set forth in the attached and incorporated Exhibit C. The
General Liability policy shall name the CITY as Additional Insured. Upon CITY
MANAGER'S written request, OWNER shall provide copies of all insurance
policies to the CITY Attorney. Such policies may not be canceled, renewed, or
materially changed without ten days advance written notice to the CITY
MANAGER.
G. Should construction become necessary for the proposed use of the USE
PRIVILEGE AREA, construction plans and specifications for all proposed
work shall be submitted to the CITY MANAGER for approval prior to
beginning the construction process. The plans shall show the depth and
location of the proposed construction and distances from any existing water,
storm water, wastewater and gas lines. PERMITTEE shall also comply with
any other laws and ordinances applicable to construction in the CITY,
including obtaining all required permits.
H. Prior to the start of any approved construction, PERMITTEE shall require its
contractor and each subcontractor provide a Certificate of Insurance reflecting
insurance in coverage amounts as set forth in Exhibit C. Additionally,
PERMITTEE shall require its contractor and each subcontractor indemnify the
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CITY, its officers, employees and agents in the same manner that
PERMITTEE has provided indemnification to the CITY.
PERMITTEE shall provide all necessary and proper safety devices so as to
prevent injuries or accidents, in as much as possible.
J. At least 48 hours prior to beginning any approved construction, PERMITTEE
shall contact 1- 800 - DIG -TESS and the Lone Star Notification Center (1 -800-
669- 8344). Additionally, at least 48 hours prior to beginning any approved
construction, PERMITTEE shall give notice, and verify depth and location of
communication lines and/or communication fiber optic cables, whichever are
applicable, for the following.
• 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;
• Any and all other certified telecommunications providers;
A CITY Inspector may request a utility line be uncovered to verity its depth or
location.
K. Any construction process and use of the USE PRIVILEGE AREA by
PERMITTEE shall not interfere with the construction, installation, operation,
maintenance, repair, removal or replacement, by the CITY or any of its
franchisees, of any existing or future proposed sidewalks, utility lines, or other
uses. If CITY, or any franchisee with utilities currently located in said right -of-
way, needs access to the right -of -way, PERMITTEE shall pay for removing or
relocating the USE PRIVILEGE AREA to allow access to utility lines for
maintenance, repair, removal or replacement of the utility lines. The
PERMITTEE shall repair the USE PRIVILEGE AREA to its original condition
or cease to use the USE PRIVILEGE AREA, at which time this AGREEMENT
terminates immediately.
L. Traffic Engineer Requirements, if applicable:
1. At least 48 hours prior to commencing approved construction, the
PERMITTEE 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 shall 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.
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2. Should PERMITTEE require a trench, pit or the like be dug during
approved construction, the PERMITTEE shall file and obtain approval for
barricading said trench, pit or the like, in accordance with the Texas
Manual on Uniform Traffic Control Devices, from the CITY'S Traffic
Engineer. (See paragraph "R." for additional requirements regarding
trench(s), pit(s) and the like.)
M. If, as determined by the CITY MANAGER, damage occurs to any gas, water,
storm water, or wastewater line, PERMITTEE shall allow CITY employees of
the CITY Gas, Water, Storm Water or Wastewater Division immediate access
to make all repairs. 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 repair, including labor
and materials, shall be paid by PERMITTEE within 30 calendar days of the
CITY MANAGER'S invoice thereof.
N. Should construction become necessary near existing water or wastewater
lines, PERMITTEE shall take every precaution not to disturb the soil
surrounding any such lines, including all thrust blocks.
4. 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 of the USE PRIVILEGE AREA. A half -day, four hours or more of
work, constitutes a whole working day for purpose 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. These funds shall be paid to the appropriate CITY Department within
30 calendar days of the CITY MANAGER'S invoice thereof. These amounts
will be adjusted annually on August 1 to reflect any pay increase.
P. At any and all times, PERMITTEE is responsible for the repair and
maintenance of the USE PRIVILEGE AREA, including any costs associated
with said repair and maintenance. Should damage occur to the USE
PRIVILEGE AREA, regardless of the type of damage, within 30 calendar days
of notice by the CITY MANAGER, PERMITTEE shall repair the damage.
Failure to do so terminates this AGREEMENT immediately.
Q. PERMITTEE shall repair or cause to be repaired any damage to driveways,
culverts, head walls, landscaping, sidewalks, curbs and 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 USE PRIVILEGE AREA.
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R. If a trench, pit or the like is required during approved construction, no
trenches, pits or the like, other than bore pits, shall be left open overnight,
except as specifically authorized by the CITY DEVELOPMENT SERVICES
ACM. Bore pits shall not be allowed open for a period of longer than 14
calendar days, regardless of location. All trenches, pits or the like, other than
bore pits, shall be backfilled promptly and in accordance with the current
CITY standards and specifications and /or as per the CITY Inspector's
request. All trenches, pits and the like, including bore pits shall be barricaded
in accordance with the Texas Manual on Uniform Traffic Control Devices as
approved by the CITY'S Traffic Engineer [See paragraph "L.(2)." for additional
requirements regarding trench(s), pit(s) and the like.]
S. If backfilling becomes necessary, all backfill, specifically including that in and
around existing utilities, shall be made according to current CITY standards
and specifications and /or as per the CITY Inspector's request.
T. The CITY shall cause this AGREEMENT to become effective upon date of
execution by the CITY MANAGER, as indicated below.
U. INDEMNIFICATION.
1. OWNER/PERMITTEE, ITS OFFICERS, MEMBERS, PARTNERS,
EMPLOYEES, AGENTS, 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, ( "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 DEATH 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 SHALL, AT ITS OWN EXPENSE,
INVESTIGATE ALL THOSE CLAIMS AND DEMANDS, ATTEND TO
THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND ALL
ACTIONS BASED THEREON WITH COUNSEL SATISFACTORY TO
INDEMNITEES AND PAY ALL CHARGES OF ATTORNEYS AND ALL
OTHER COST AND EXPENSES OF ANY KIND ARISING FROM ANY
OF SAID LIABILITY, DAMAGE, LOSS, CLAIMS, DEMANDS, OR
ACTIONS.
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2. EXCEPT AS OTHERWISE EXPRESSLY LIMITED BY THIS
AGREEMENT, IT IS THE INTENT OF THE PARTIES TO THIS
AGREEMENT THAT 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 U. APPLIES, WITHOUT
LIMITATIONS, TO ANY VIOLATION 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, OMISSION, EVENT OR
CIRCUMSTANCE EXISTING 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
PRIOR TO THE RELEASE DATE), REGARDLESS OF WHETHER THE
ACT, OMISSION, EVENT, OR CIRCUMSTANCE CONSTITUTED A
VIOLATION OF ANY APPLICABLE ENVIRONMENTAL LAW OR
REGULATION AT THE TIME OF ITS EXISTENCE OR OCCURRENCE.
THE TERMS "HAZARDOUS SUBSTANCE" AND "RELEASE" SHALL
HAVE THE MEANINGS SPECIFIED IN COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY
ACT OF 1980 ( "CERCLA "), AS AMENDED, AND THE TERMS "SOLID
WASTE" AND "DISPOSED" SHALL HAVE 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 EXTENT THAT THE LAWS OF THE STATE OF
TEXAS ESTABLISH A MEANING FOR "HAZARDOUS SUBSTANCE,"
"RELEASE," OR "SOLID 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 OTHERWISE
ENTER ANY OF THE CITY'S WASTEWATER TREATMENT WORKS
AND INTERFERE WITH THE TREATMENT PROCESS OR CAUSE THE
EFFLUENT PRODUCED BY THE TREATMENT WORKS NOT TO MEET
THE STANDARDS FOR EFFLUENT AUTHORIZED UNDER THE CITY'S
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CURRENT PERMITS FROM THE UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY OR TEXAS NATURAL RESOURCE
CONSERVATION COMMISSION, THE PERMITTEE SHALL FULLY
INDEMNIFY, SAVE, AND HOLD HARMLESS THE CITY OF CORPUS
CHRISTI, ITS OFFICERS, AND EMPLOYEES AGAINST ANY AND ALL
CIVIL AND ADMINISTRATIVE PENALTIES 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.
EXECUTED IN DUPLICATE originals this 1 day of De&14 20
Acceptance
Todd Pietsch, Manager of Pietsch Realty Investments, LLC, on behalf of Pietsch Realty
Investments, LLC, hereby accepts the above AGREEMENT and its terms and
conditions and further agrees to keep and perform the conditions imposed by said
AGREEMENT and to be bound by all terms of same.
Pietsch Realty Investments, LLC
4938 South Staples
Corpus Christi, Texas, 78411
By.
Todd Pietsch, Manager
Acknowledgement
THE STATE OF TEXAS §
COUNTY OF NUECES §
This instrument was acknowledged before me on R 01f,01 LO 2011,
by Todd Pietsch, Manager, on behalf of Pietsch Realty Investments, LLC, a limited
liability corporation.
6, 4 0 o ublic
' LESLIE MESSER State of Texas
*
Notary
STATE afi TEXAS
MY Comm. Exp. Feb. 97, 2015
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Attestation
IN TESTIMONY WHEREOF, the City of Co r us Christi has caused these presents to be
executed on this the I Le t ' day of , 20 __L� i .
ATTEST:
CITY
By:
onald
City ME
Acknowledgement
S CHRISTI
Armando Chapa
City Secretary
THE STATE OF TEXAS §
COUNTY OF NUECES §
This i st m nt was ,,,��acknowledged before me on l� , 20 t
by Isor'I, Ma of the City of Corpus Christi, a Texas Municipal
Corporation, on behalf of said corporation.
�% T'AMERA L. RILE'
Notary Public
W STATE OF TEXAS
My Comm, Exp. Ob -26 - 2072
Notary Public
State of Texas
Legal Approval
APPROVED AS TO LEGAL FORM thi day of , 20
Carlos Valdez
City Attorney
By: c �
eborah Walther Br
Assistant City Attorn y
For City Attorney
.AU I h9t±hLLL.
SECRETAR
+'L
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USE PRIVILEGE AGREEMENT
SUBJECT .
EXHIBIT A
Of
LAWRENCE STREET (R.o_W-)
5 • I OVER ALL WO)TH OF SIDEWALK 9' -8
112' 168'
,� TO INTERSECTION OF �TO INTERSECTION OF
LAWRENCE & CHAPARRAL LAWRENCE 8 N. WATER
I 4' �
i AREA TO BE USED UDDER USE M%ALEGE AGREEMENT I
I I
EXISTING BUILDING
SCALE 114' r'
EXHIBIT B
EXHIBIT C
INSURANCE REQUIREMENTS
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 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
30 day written notice of cancellation, non - renewal,
Bodily Injury and Property Damage
material change or termination is required on all
Per occurrence - aggregate
certificates
Commercial General Liability including:
$1,000,000 COMBINED SINGLE LIMIT
1. Commercial Form
2. Premises - Operations
3. Underground Hazard
4. Products/ Completed Operations Hazard
5. Contractual Liability
6. Broad Form Property Damage
7. Independent Contractor
AUTOMOBILE LIABILITY — OWNED, NON -OWNED
$1,000,000 COMBINED SINGLE LIMIT
OR RENTED
WHICH COMPLIES WITH THE TEXAS WORKERS'
WORKERS' COMPENSATION
COMPENSATION ACT AND PARAGRAPH 11 OF 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.
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 endorsements approved by the Texas Department of Insurance. The coverage
provided must be in amounts sufficient to assure that all workers' compensation obligations
incurred will be promptly met.
B. Permittee's financial integrity is of interest to the City; therefore, subject to Permittees right to
maintain reasonable deductibles in such amounts as are approved by the City, Permittee
shall obtain and maintain in full force and effect for the duration of this Contract, and any
extension hereof, at Permittee's sole expense, insurance coverage written on an occurrence
basis, by companies authorized and admitted to do business in the State of Texas and with
an A.M. Best's rating of no less than A- (VII).
C. The City shall be entitled, upon request and without expense, to receive copies of the
policies, declarations page and all endorsements thereto as they apply to the limits required
by the City, and may require the deletion, revision, or modification of particular policy terms,
conditions, limitations or exclusions (except where policy provisions are established by law
or regulation binding upon either of the parties hereto or the underwriter of any such
policies). Permittee shall be required to comply with any such requests and shall submit a
copy of the replacement certificate of insurance to City at the address provided below within
10 days of the requested change. Permittee shall pay any costs incurred resulting from said
changes. All notices under this Article shall be given to City at the following address:
City of Corpus Christi
Attn: Risk Management
P.O. Box 9277
Corpus Christi, TX 78469 -9277
(361) 826 -4555- Fax #
D. Permittee agrees that with respect to the above required insurance, all insurance policies are
to contain . or be endorsed to contain the following required provisions:
• Name the City and its officers, officials, employees, volunteers, and elected representatives
as additional insured by endorsement, as respects operations and activities of, or on behalf
of, the named insured performed under contract with the City, with the exception of the
workers' compensation and professional liability polices;
• Provide for an endorsement that the "other insurance" clause shall not apply to the
City of Corpus Christi where the City is an additional insured shown on the policy;
• Workers' compensation and employers' liability policies will provide a waiver of subrogation
in favor of the City; and
• Provide thirty (30) calendar days advance written notice directly to City of any suspension,
cancellation, non- renewal or material change in coverage, and not less than ten (10)
calendar days advance written notice for nonpayment of premium.
E. Within five (5) calendar days of a suspension, cancellation, or non - renewal of coverage,
Successful Bidder shall provide a replacement Certificate of Insurance and applicable
endorsements to City. City shall have the option to suspend Permittee's performance should
there be a lapse in coverage at any time during this contract. Failure to provide and to
maintain the required insurance shall constitute a material breach of this contract.
F. In addition to any other remedies the City may have upon Permittee's failure to provide and
maintain any insurance or policy endorsements to the extent and within the time herein
required, the City shall have the right to order Permittee to stop work hereunder, and/or
withhold any payment(s) which become due to Permittee hereunder until Permittee
demonstrates compliance with the requirements hereof.
G. Nothing herein contained shall be construed as limiting in any way the extent to which
Permittee may be held responsible for payments of damages to persons or property
resulting from Permittee's or its subcontractor's performance of the work covered under this
agreement.
H. It is agreed that Permittee's insurance shall be deemed primary and non - contributory with
respect to any insurance or self insurance carried by the City of Corpus Christi for liability
arising out of operations under this contract.
I. It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this contract.
Use Privilege Agreement (UPA) ins. req.
9 -14 -10 ep Risk Mgmt.