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;
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• 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.
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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.
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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
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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
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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
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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.
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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
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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.
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