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HomeMy WebLinkAboutC2018-180 - 4/5/2018 - NA USE PRIVILEGE AGREEMENT For streetscape zone and pedestrian amenities Per UDC §6.13 STATE OF TEXAS § COUNTY OF NUECES § This Use Privilege Agreement ("Agreement") is entered into by and among the City of Corpus Christi ("City"), a Texas home-rule municipal corporation, Fulton Construction Corporation ("Contractor"), whose address is 1102 Second Street, Corpus Christi, Texas 78404, and First Community Bank ("Permittee"), a Texas Banking Association and property owner of 500 N. Water Street, Corpus Christi, Texas, whose business address is 500 N. Water Street, Suite 1200, Corpus Christi Texas, 78401. • In accordance with Article IX, Section I, of the City's City Charter, the City has granted and conveyed, and by these presents does grant and convey to Permittee, for Ale term and upon the conditions stated in this Agreement, a use privilege for the right to install, operate, maintain, repair, and remove a canopy. The canopy covers a total of 300 square feet of the city sidewalk. Included in the work is a renovation of the building entrance with removal of the concrete sidewalk and replacement with concrete pavers. The canopy structure will be encased in Alucobond Metal panels and have a translucent cover. The area in which the use privilege is granted for the location of the Permittee's canopy is referred to in this Agreement as the "Use Privilege Area." TO HAVE AND TO HOLD the same use privilege granted unto Permittee, its successors, and assigns, together with the right under the conditions specified in this Agreement, to at any time enter upon the above described Use Privilege Area to install, operate,maintain, repair, or remove Permittee's canopy. and being further understood that the use privilege granted by this Agreement is subject to the Permittee's compliance at all times with the following conditions, the City and Permittee agree as follows: A. This Agreement, and the rights granted under the Agreement, may be revoked by the City upon providing the Permittee not less than 30 days notice in writing by the City's City Manager or designee of the occurrence of any event of default by Permittee which is not cured within 30 days after Permittee's receipt of such notice. In the event of a revocation by the City Manager or designee, or earlier termination of this Agreement by either party, no portion of any payment made under this Agreement is refundable to the Permittee. B. This Agreement is for a term of 10 years from the date executed by the City. At the end of the initial term, this Agreement renews automatically for additional one-year terms unless the Permittee or the City provides written notice of intent not to renew to the non-terminating party at least 60 days before the end of any annual term. 2018-180 4/05/18 First Community Bank INDEXED C. This Agreement may not be assigned by Permittee without the City Manager's or designee's prior written consent. D. The Permittee shall acquire and maintain at all times for the term of this Agreement insurance coverage pertaining to the Use Privilege Area granted under this Agreement and the activities authorized by this Agreement. The types of required insurance coverages must be in the minimum amounts set forth in the attached Exhibit "A," the substantive content of Exhibit "A" being incorporated by reference into this Agreement as if fully set out here in its entirety. The insurance policies must name the City as an additional insured and may not be canceled, renewed, or materially changed by Permittee unless at least ten (10) days advance written notice has been provided to the City. Upon the City Manager's or designee's written request, Permittee shall provide copies of all requested insurance policies to the City's City Attorney. F. Should construction be deemed necessary by Permittee in the Use Privilege Area, construction plans and specifications for all proposed work shall be submitted in advance by the Permittee to the City's City Engineer for approval, and have or will be approved prior to beginning the construction process. The plans must show the depth, and location of the proposed construction and distance from existing water, storm water. wastewater, and gas lines. The Permittee/Contractor shall comply with any other laws, rules, regulations, and ordinances applicable to construction in the City and in the public right-of-way, including obtaining all required permits. F. Prior to the start of any approved construction, Permittee shall require every contractor to provide a Certificate of Insurance reflecting insurance in coverage amounts as set forth in Exhibit "A." Additionally, Permittee shall require their contractors to indemnify the City, its officers, officials, employees, representatives, agents, licensees, and invitees in the same manner that Permittee has provided indemnification to the City pursuant to this Agreement. G. Permittee/Contractor shall provide all necessary and proper safety devices so as to prevent injuries or accidents in the Use Privilege Area, in as much as possible. H. At least 48 hours prior to beginning any approved construction, Permittee/Contractor shall contact 1-800-DIG-TESS and the Lone Star Notification Center (1-800-669- 8344), and any other required agency or authority. Additionally, at least 48 hours prior to beginning any approved construction, Permittee/Contractor shall give notice and verify depth and location of communication lines or communication fiber optic cables, whichever is applicable,to 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; 312575 • Grande Communications; and • Any and all other certified telecommunications providers. A City inspector may request a utility line be uncovered to verify its depth or location. I. Any construction process and use of the Use Privilege Area by Permittee/Contractor shall not interfere with the construction, installation, operation, maintenance, repair, removal or replacement by the City or any of its agents, contractors, or franchisees of any existing or future proposed sidewalks, utility lines, or other uses. If the City or any franchisee with utilities currently located in said public right-of-way needs access to the right-of-way, Permittee/Contractor shall pay for removing or relocating the canopy in the Use Privilege Area to allow access to utility lines for maintenance, repair, removal, or replacement of the utility lines. The Permittee/Contractor 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. J. Traffic Engineer requirements pertaining to this Agreement, if applicable in context: I. At least 48 hours prior to commencing any approved construction, the Permittee/Contractor 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 may 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. 2. Should Permittee/Contractor require a trench, pit, or similar excavation be dug during approved construction, the Permittee/Contractor shall file and obtain approval for barricading said trench, pit, or excavation in accordance with the Texas Manual on Uniform Traffic Control Devices from the City's Traffic Engineer. [See paragraph "P" of this Agreement for additional requirements regarding trenches, pits and similar excavations.] K. If,as reasonably determined by the City Manager or designee,damage occurs to any gas, water, storm water, or wastewater line, Pennittee/Contractor shall allow the City immediate access to the Use Privilege Area to perform an assessment, make repairs, or take any other action deemed necessary by the City. Determination of the extent of damage and repairs necessary to restore the utility line(s) shall be made by the City Manager or designee. All costs of the City associated with said damage and repair, including labor and materials, shall be paid by Permittee/Contractor within 30 days of the City's invoice. L. Should construction become necessary near existing water or wastewater lines, Permittee/Contractor shall take every precaution not to disturb the soil surrounding any such lines, including all thrust blocks. 312575 M. 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 in the Use Privilege Area. A half-day, being four hours or more of work time by the City inspector, constitutes a whole working day for purposes 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. Any assessed inspection fees shall be paid by the Permittee/Contractor to the appropriate City department within 30 days of the City's invoice. These amounts will be adjusted annually each year on August I to reflect any pay increases that may be attributable to the rates charged. N. The parties acknowledge that the canopy is not owned by the City. At any and all times Permittee shall be solely responsible for the repair and maintenance of the canopy and Use Privilege Area, including any costs associated with damage occurring due to natural weather elements/occurrences or man-made forces. Should damage occur to the canopy or Use Privilege Area, regardless of the type of damage, Permittee shall immediately repair the damage upon notice by the City. Failure to so repair gives the City an option to terminate this Agreement as provided herein. 0. Permittee/Contractor shall repair, or cause to be repaired, any damage to driveways, culverts, head walls, landscaping, sidewalks, curbs, 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 canopy and Use Privilege Area. P. If a trench, pit, or other excavation is required during approved construction, no trenches, pits, or other excavation, other than bore pits, shall be left open overnight, except as specifically authorized by the City's Director of Development Services and City's Engineer. Bore pits are not allowed open for a period of longer than 14 calendar days, regardless of location. All trenches, pits, or other excavations, other than bore pits, shall be backfilled by the Permittee/Contractor promptly and in accordance with current City standards and specifications and as per the City inspector's request. All trenches, pits, and other excavations, including bore pits, shall be barricaded by the Permittee/Contractor in accordance with the Texas Manual on Uniform Traffic Control Devices and as approved by the City's Traffic Engineer. [See paragraph "J.2." for additional requirements pertaining to trenches, pits, and other excavations.] Q. If backfilling becomes necessary, all backfill, specifically including that in and around existing utilities, shall be made by Permittee/Contractor according to current City standards and specifications and as required by a City inspector. R. Use of the canopy authorized by this Agreement is strictly limited to providing a canopy to the First Community Bank for its office building entrance located at 500 N. Water Street, Corpus Christi, Texas, in the Use Privilege Area. The Permittee' use of the canopy is strictly limited to serving the Permittee' facilities on Schatzel Street. 312575 All costs incurred to install, operate, maintain, repair, and remove the canopy are the sole responsibility of the Permittee. S. INDEMNIFICATION. PERMITTEE COVENANTS TO FULLY INDEMNIFY, SAVE AND HOLD HARMLESS THE CITY OF CORPUS CHRISTI, ITS OFFICERS, EMPLOYEES, AND AGENTS, 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 RIGHT-OF-WAY OR CONSTRUCTION, INSTALLATION, EXISTENCE, OPERATION, USE, MAINTENANCE, REPAIR, RESTORATION, OR REMOVAL OF THE USE PRIVILEGE IMPROVEMENTS PURSUANT TO THIS AGREEMENT, INCLUDING ANY INJURY, LOSS OR DAMAGE CAUSED BY THE SOLE OR CONTRIBUTORY NEGLIGENCE OF THE INDEMNITEES OR ANY OF THEM. OWNER MUST, AT ITS OWN EXPENSE, INVESTIGATE ALL THOSE CLAIMS AND DEMANDS, ATTEND TO THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND ALL ACTIONS BASED ON ANY CLAIMS OR DEMANDS, 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. T. All signatories signing this Agreement warrant and guarantee that they have the authority to act on behalf of the entity represented and make this Agreement binding and enforceable by their signatures. U. Unless otherwise stated in this Agreement, any notice required or permitted to be given under this Agreement must be in writing and sent by certified mail, return receipt requested to the following addresses: If to Permittee: First Community Bank Attn: Wes Hoskins 500 N. Water Street Suite 1200 Corpus Christi,TX 78401 If to Contractor: Fulton Construction Corp. Attn: Jim Kollaja 1102 Second Street Corpus Christi,TX 78404 If to the City: City of Corpus Christi 312575 Attn: Director, Development Services Department P. O. Box 9277 Corpus Christi,TX 78469-9277 Any party shall, by notice to the others in accordance with the provisions of this paragraph, specify a different address or addressee for notice purposes within 10 days of any address change. V. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created pursuant to this Agreement are performable in Nueces County, Texas. Venue for all actions arising from, out of, or related to this Agreement must be brought in Nueces County, Texas. W. The Permittee and Contractor further agree, in compliance with the City of Corpus Christi Ordinance No. 17112, to complete, as part of this Agreement,the"Disclosure of Interests" form attached to this Agreement as Exhibit "B." Completed versions of Exhibit "B" by the Permittee and Contractor form a part of this Agreement and are incorporated by reference into this Agreement as if set out here in their entireties. X. This instrument, including exhibits, constitutes the entire agreement between the City, Contractor and the Permittee, and no prior written,oral,or contemporaneous promises, , warranties, or representations shall be binding upon any parties. This Agreement may only be amended by written instrument signed by authorized representatives of the City, Contractor and Permittee and approved as required by City law. Y. Any payments due by the Permittee pursuant to this Agreement will be made from current revenue available to the Permittee. EXECUTED IN TRIPLICATE this * day of \,o , 201 i. . First Community Bank a Texas Banking Association Wes oskins, resident February 2018 Fulton Construction Cor s oration / iI B ' 'Plear, February 2018 312575 ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on Fe -� , 2018, by Wes Hoskins, President of First Community Bank a Texas Banking Association, on behalf of association, and by tjfiL;p 5K14442[zy , )aze. ;v r of Fulton Construction Corporation, a Texas corporation,on behalf of said corporation. • 1P4••.,,• LAURA GARY > I-4,6k 0-ry ?° "`l : ID# 182416-4 Notary Public's Signature } Notary Public STATE OF TEXAS ••'•r!Of?!+ My Comm. Exp. 11-10-2020 "No- C; ... vv vv v� ATTEST: CITY OF CORPUS CHRISTI .. C-Le-C-'66-4— VlBy: det//. Re ecca Huerta Keith Selman City Secretary Assistant City Manager 1 Approved as to legal form: (b" ) , 2018. Buck Brice Assistant City Attorney For the City Attorney 312575 STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on Aph ) a 6 , 2018, by Keith Selman., Assistant City Manager of the City of Corpus Christi, a Texas Municipal Corporation, on behalf of said corporation. % ' 0.1 I gimmimilmilirmwarobmilftanurnmalarilemylarslirelft , , JOSIE CASTILLO .otary Public's Signature :r° Vic+:Notary Public,State of Texas Comm.Expires 10-17-2021 4,p,hos Notary ID 3929636 312575 EXHIBIT A INSURANCE REQUIREMENTS CONTRACTOR'S LIABILITY INSURANCE A. Contractor must not commence work under this contract until all insurance required has been obtained and such insurance has been approved by the City. Contractor must not allow any subcontractor, to commence work until all similar insurance required of any subcontractor has been obtained. B. Contractor must furnish to the City's Risk Manager and Contract Administrator one (I) copy of Certificates of Insurance with applicable policy endorsements showing the following minimum coverage by an insurance company(s) acceptable to the City's Risk Manager. The City must be listed as an additional insured on the General liability policy by endorsement, and a waiver of subrogation endorsement is required on all applicable policies. Endorsements must be provided with Certificate of Insurance. Project name and/or number must be listed in Description Box of Certificate of Insurance. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30-day advance written notice of Bodily Injury and Property Damage cancellation, non-renewal, material change Per occurrence- aggregate or termination required on all certificates and policies. COMMERCIAL GENERAL LIABILITY $1,000,000 Per Occurrence including: $1,000,000 Aggregate Commercial Broad Form 2. Premises—Operations 3. Products/Completed Operations 4. Contractual Liability 5. Independent Contractors 6. Personal Injury- Advertising Injury C. In the event of accidents of any kind related to this contract, Contractor must furnish the Risk Manager with copies of all reports of any accidents within 10 days of the accident. II. ADDITIONAL REQUIREMENTS A. Applicable for paid employees, Contractor must obtain workers' compensation coverage through a licensed insurance company. The coverage must be written on a policy and endorsements approved by the Texas Department of Insurance. The workers' compensation coverage provided must be in statutory amounts according to the Texas Department of Insurance, Division of Workers' Compensation. An All States Endorsement shall be required if Contractor is not domiciled in the State of Texas. B. Contractor shall obtain and maintain in full force and effect for the duration of this Contract, and any extension hereof, at Contractor'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. Contractor shall be required to submit renewal certificates of insurance throughout the term of this contract and any extensions within 10 days of the policy expiration dates. All notices under this Exhibit shall be given to City at the following address: City of Corpus Christi Attn: Risk Manager P.O. Box 9277 Corpus Christi. TX 78469-9277 D. Contractor agrees that, with respect to the above required insurance, all insurance policies are to contain or be endorsed to contain the following required provisions: • List the City and its officers, officials, employees, and volunteers, as additional insureds by endorsement with regard to operations, completed operations, and activities of or on behalf of the named insured performed under contract with the City, with the exception of the workers' compensation policy; • 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,cancellation,non-renewal, material change or termination 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 cancellation, non-renewal,material change or termination of coverage, Contractor shall provide a replacement Certificate of Insurance and applicable endorsements to City. City shall have the option to suspend Contractor'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 Contractor'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 Contractor to stop work hereunder, and/or withhold any payment(s) which become due to • Contractor hereunder until Contractor demonstrates compliance with the requirements hereof. G. Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be held responsible for payments of damages to persons or property resulting from Contractor's or its subcontractor's performance of the work covered under this contract. B. It is agreed that Contractor'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. 2018 Insurance Requirements Legal Use Privilege Agreement for the Right to Install, Operate, Maintain, Repair and Remove a Canopy 01/19/2018 sw Risk Management "Exhibit B" CITY OF CORPUS CHRISTI iss DISCLOSURE OF INTEREST City of Corpus Christi City of Corpus Christi Ordinance 17112, as amended, requires all persons or firms seeking to do business with the City to provide the following information. Every question must be answered. If the question is not applicable, answer with"NA". See definitions on next page. COMPANY NAME: 1(1L TPA/ cD.0S 77 eY Ti6 n( STREET ADDRESS: /1 O 2- 2.- "-i° S T(L�P T 7294o P.O. BOX: q4 SG CITY: Lo2p U5 6E1-12;34; Tj ZIP: FIRM IS: 1. Corporation 2. Partnership 3. Sole Owner 4. Association 5. Other n If additional space is necessary, please use the reverse side of this page or attach separate sheet. 1. State the names of each "employee" of the City of Corpus Christi having an"ownership interest"constituting 3% or more of the ownership in the above named"firm." Name Job Title and City Department(if known) 2. State the names of each "official"of the City of Corpus Christi having an "ownership interest"constituting 3% or more of the ownership in the above named"firm." Name Title 3. State the names of each"board member" of the City of Corpus Christi having an "ownership interest"constituting 3%or more of the ownership in the above named"firm." Name Board, Commission or Committee 4. State the names of each employee or officer of a"consultant"for the City of Corpus Christi who worked on any matter related to the subject of this contract and has an"ownership interest"constituting 3% or more of the ownership in the above named"firm." Name Consultant CERTIFICATION I certify that all information provided is true and correct as of the date of this statement, that I have not knowingly withheld disclosure of any information requested; and that supplemental statements will be promptly submitted to the City of Corpus Christi, Texas as changes occur. , /0W Certifying Person: d T' -_ Signature ofL Certifying Pe son. , ,�' .- Date: I DEFINITIONS a. "Board member." A member of any board, commission, or committee appointed by the City Council of the City of Corpus Christi, Texas. b. "Employee." Any person employed by the City of Corpus Christi, Texas either on a full or part-time basis, but not as an independent contractor. c. "Firm." Any entity operated for economic gain, whether professional, industrial or commercial, and whether established to produce or deal with a product or service, including but not limited to, entities operated in the form of sole proprietorship, as self-employed person, partnership, corporation, joint stock company, joint venture, receivership or trust, and entities which for purposes of taxation are treated as non- profit organizations. d. "Official."The Mayor, members of the City Council, City Manager, Deputy City Manager, Assistant City Managers, Department and Division Heads, and Municipal Court Judges of the City of Corpus Christi, Texas. e. "Ownership Interest." Legal or equitable interest, whether actually or constructively held, in a firm, including when such interest is held through an agent, trust, estate, or holding entity. "Constructively held" refers to holdings or control established through voting trusts, proxies, or special terms of venture or partnership agreements." f. "Consultant."Any person or firm, such as engineers and architects, hired by the City of Corpus Christi for the purpose of professional consultation and recommendation. -11-