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USE PRIVILEGE AGREEMENT
THE STATE OF TEXAS §
COUNTY OF NUECES §
This Use Privilege Agreement (Agreement') is made this
day of 2013,
between the City of Corpus Christi ("City"), a Texas home rule municipa corporation,
acting through its duly authorized City Manager, or his designee, and Jerry Watkins,
("Permittee"), with mailing address of . The parties agree as
follows:
1. The City is the owner of the Whitecap Wastewater Treatment Plant, located in
13400 block of Whitecap Blvd. Corpus Christi, Texas.
2. The Permittee desires to use the portion of the City property on the lot adjacent
to the Whitecap Wastewater Treatment Plant for the purpose of staging a free fireworks
display in conjunction with a 4th of July 2013. The Permittee will contract with Zambelli
Fireworks to conduct the fireworks event. Zambelli Fireworks will temporary install
mortars, racks, firing boxes, electronic firing systems, and splitters on the Property.
Approximately 1300 firework shells between 3" and 5" in diameter will be fired from the
installed equipment during the performance. The fireworks event will take place at
approximately 9:00 p.m. On the day of the fireworks event, if prevailing winds blow
towards the Padre Island Yacht Club or towards the Whitecap Wastewater Treatment
Plant, the fireworks launch shall be canceled.
3. The exact permitted location for the fireworks launch will be identified by the City Fire
Marshall, on City property adjacent to location of the Whitecap Wastewater Treatment
Plant, as shown by site map on Exhibit A. The permitted location for the fireworks
launch is at least 350 feet from structures or improvement in all directions.
4. In consideration of providing the free fireworks event and Permittee's covenants
expressed in this Agreement, the City grants Permittee the use of the City Property
described in Section 3, for the purposes stated in paragraph 2 of this Agreement, on
July 4, 2013. All references herein to Permittee also apply to Permittee's contractor(s),
agent(s), and employee(s) if applicable. Permittee may have access to the property on
July 3 for purposes of investigation and set up, but the actual fireworks event will take
place on July 4, or other date as mutually agreed to in writing by the City Manager or
designated Assistant City Manager.
5. 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
Christi'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.
2013-123
4/09/13
Ord. 029792
Jerry Watkins INDEXED
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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.
D. INDEMNIFICATION.
(1) TO THE EXTENT ALLOWED BY TEXAS LAW, PERMITTEE, ITS
OFFICERS. MEMBERS, PARTNERS, EMPLOYEES, AGENTS, CONTRACTOR
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 MUST, 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.
(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 PREEXISTING CONDITIONS. THE INDEMNITY
CONTAINED IN THIS SUBPARAGRAPH D 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
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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 OTHER 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
CURRENT PERMITS FROM THE UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY OR TEXAS NATURAL RESOURCE
CONSERVATION COMMISSION, THE PERMITEE 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
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COSTS INVOLVED WITH BRINGING THE WHITECAP WASTE WATER
TREATMENT PLANT BACK INTO COMPLIANCE WITH ITS PERMITS.
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 Exhibit B, which is the attached
to and incorporated into this Agreement. The insurance policies must
show the City and Padre Island Yacht Club as a named additional insured.
Upon City Managers 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 may not interfere with the operation of the
City's Wastewater Treatment Plant ("Plant"). Any construction or
equipment installed by Permittee 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. Permittee must consult with City Traffic Engineering Office for traffic
control plan. Permitee 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 and paid
applicable street closure, Traffic Control, and Traffic Engineering permit
fees.
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.
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.), Southwestern Bell Telephone., Time Warner, and Grande
Communications lines, as well as all other telecommunication providers in
the area. 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
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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, Time Warner, Water, Gas,
Storm Water, and Wastewater Divisions along with the telecommunication
providers in the area.
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 will be brought in and allowed immediately to make all
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).
0. Prior to utilizing the Premises, Permittee must obtain all required Federal,
State and Local permits, including but not limited to the fireworks permit
from the Corpus Christi Fire Department.
P. Permittee must take every precaution not to disturb the soil surrounding
any existing water or wastewater line, including all thrust blocks.
Q. Damage to any City property, or 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. Permittee may not store or leave any equipment or material in City
Property overnight.
S. Permittee must notify Wastewater Director, or his designee, at least 24
hours prior to starting work.
T. The Permittee must provide proper safety and security devices to prevent
possible injuries or accidents. No open trenches or pits may be left
overnight. 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 at Permittee's expense.
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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.
6. This agreement takes effect on date of last signature.
IN TESTIMONY WHEREOF, the City of Corpus Christi has caused these presents to be
executed on this the day of , 2013.
ATTEST: CITY OF CORPUS CHRISTI
/, By: QAc —> 7 2)/a4,t1 /
Armando Chapa Ronald L. Olson U ��
City Secretary City Manager
The Permittee, Jerry Watkins, agrees to keep and perform the conditions and be bound
by all of the terms imposed by the Use Privilege Agreement.
By:
��z -�---
Jerry W ns
Date: 3 --71 /
The fireworks contractor, Zambelli Fireworks, agrees to keep and perform the conditions
and be bound by all of the terms imposed by the Use Privilege Agreement.
By: 1 .�/V� J
Name: .iii % i' "
Title: G,mnF
Date: ' 3-s-,/ol 3
d. v7Q1 .
elY cuiwcrt.........
BFCRE:FAW
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Exhibit A
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EXHIBIT B
INSURANCE REQUIREMENTS
I. PERMIITTEE'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. At least thirty (30) days prior to the fireworks event, 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 Bodily Injury and Property Damage
a 30 — day written notice of non-renewal, Per occurrence aggregate
material change or termination required
on all certificates
Commercial General Liability including: $10,000,000 PER OCCURRENCE
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
AUTOMOBILE LIABILITY—OWNED, NON- $1 ,000,000 COMBINED SINGLE LIMIT
OWNED, OR RENTED
WORKERS' COMPENSATION WHICH COMPLIES WITH THE TEXAS
EMPLOYERS' LIABILITY WORKERS' COMPENSATION ACT AND
PARAGRAPH II OF THIS EXHIBIT
$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 at the same time that
the reports are forwarded to any other interested parties.
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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 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 and Padre Island Yacht Club 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 "left'.
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.
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.