Item 9ACITY OF
SOUTH LAKE
MEMORANDUM
(November 17, 2009)
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Public Works Director
Subject: Consider a Commercial Developer Agreement for
construction of a middle school on Kirkwood Boulevard
at Blessed Way with Carroll Independent School District
Action
Requested: Consider a Commercial Developer Agreement (CDA) for
construction of a middle school on Kirkwood Boulevard at
Blessed Way with Carroll Independent School District
(CISD).
Background
Information: The school district will construct approximately 2,800 LF of
on -site public water line, 1,325 LF of on -site public sanitary
sewer line, 730 LF of off -site public sanitary sewer line as
well as minor public drainage improvements. This
developer's agreement covers the construction of these
public improvements.
Financial
Considerations: School districts are regulated under the Texas Local
Government Code and various other state statutes, such as
the Education Code. These regulations preclude CISD from
agreeing to some of the language and requirements in the
city's standard commercial developer agreement. Therefore,
CISD has requested several revisions to the standard
agreement, including:
• Substituting a board resolution for the normally required
surety bonds to cover failure to complete the project;
• CISD will assign the responsibility for bonding
construction to their general contractor;
• School Districts are not required to pay impact fees
under the Local Government Code; however, by
statute, they are allowed the option to pay them if their
Board approves. Tex. Loc. Gov't Code Section
395.022 (b) provides that a school district is "not
required to pay impact fees ... unless the board of
trustees of the district consents to the payment of the
fees by entering into a contract with the political
subdivision that imposes the fees." The CISD Board of
Trustees has not consented to the payment of any
impact fees.
• The City and Developer agree that the Developer will
pay the required Park Dedication Fee of $59,844. The
City and Developer intend to negotiate an interlocal
agreement concerning possible future joint use of the
Carroll Middle School property.
• CISD will be over - sizing their proposed sanitary sewer
line to accommodate anticipated flow from developed
and undeveloped property located north of the
proposed school site. CISD will be seeking over - sizing
reimbursement, which is the cost difference between
the 12 -inch diameter line (required by the master plan)
that will be constructed versus an 8 -inch diameter line
required to serve the school facility. This is the
standard over - sizing policy which enables the city to
meet the requirements of its master plans through
development projects which is available to all
developers in the city. This amount will be provided to
City Council at the City Council meeting.
This agreement was approved by the CISD Board of
Trustees on October 19, 2009.
Strategic Link: The proposed CDA links to the City's strategy map relative
to the focus area of Quality Development. The specific
corporate objectives that are met by this agreement include:
Collaborate with select partners to implement service
solutions; Invest to provide and maintain high quality public
assets and provide high quality customer service.
Citizen Input/
Board Review: None
Legal Review: The requested revisions have been approved by the City
Attorney.
Alternatives: The City Council may approve or deny the commercial
developer's agreement.
Supporting
Documents: Location Map
Carroll Independent School District Commercial Developer's
Agreement — New Middle School
Staff
Recommendation: Approve a Commercial Developer Agreement for
construction of a middle school on Kirkwood Boulevard at
Blessed Way with Carroll Independent School District
(CISD).
Staff Contact: Robert H. Price, P.E., Public Works Director
Gordon J. Mayer, Jr., P.E., Deputy Director of Public Works
Michael James, P.E., CFM, Civil /Stormwater Utility Engineer
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CARROLL MIDDLE SCHOOL
COMMERCIAL DEVELOPER AGREEMENT
An agreement between the City of Southlake, Texas, hereinafter referred to as the
"City ", and the Carroll Independent School District (CISD), hereinafter referred to as the
"Developer ", of New Carroll Middle School hereinafter referred to as "Addition" to the
City of Southlake, Tarrant County, Texas, for the installation of certain community
facilities located therein, and to provide city services thereto. It is understood by and
between the parties that this Agreement is applicable to the Addition (a public school
development) and to the off -site improvements necessary to support the Addition.
GENERAL REQUIREMENTS
A. It is agreed and understood by the parties hereto that the Developer shall
employ a civil engineer licensed to practice in the State of Texas for the
design and preparation of the plans and specifications for the construction
of all facilities covered by this Agreement.
B. The Developer will present to the City a resolution of the Board of
Trustees of the Carroll Independent School District agreeing to complete
the public improvements within 2 years of the signing of this Agreement
between the City and the Developer, and a performance bond executed
by Developer's general contractor acceptable to the City guaranteeing and
agreeing to pay an amount equal to the 100% of the value of the
construction cost of all public facilities to be constructed by Developer, and
providing for payment to the City of the total remaining amount required
for the completion of the public facilities if such general contractor fails to
complete the such public facilities within two years of the signing of this
Agreement between the City and Developer. .
C. The Developer agrees to cause contractors performing the work to furnish
to the City either maintenance bonds, letter of credit or cash escrow
amounting to 100% of the cost of construction of underground public
utilities and 100% for the paving. These maintenance bonds, letter of
credit or cash escrow will be for a period of two (2) years and will be
issued prior to the final City acceptance of the Addition. The maintenance
bonds, letter of credit or cash escrow will be supplied to the City by the
contractors performing the work, and the City will be named as the
beneficiary if the contractors fail to perform any required maintenance.
D. It is further agreed and understood by the parties hereto that upon
acceptance by the City, title to all facilities and improvements mentioned
herein above which are intended to be public facilities shall be vested in
the City, and Developer hereby relinquishes any right, title, or interest in
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and to said facilities or any part thereof. It is further understood and
agreed that until the City accepts such improvements, the City shall have
no liability or responsibility in connection with any such facilities.
Acceptance of the facilities for this provision and for the entire Agreement
shall occur at such time that the City, through its City Manager or his duly
appointed representative, provides Developer with a written
acknowledgement that all facilities are complete, have been inspected and
approved, and are being accepted by the City.
E. On all public facilities included in this Agreement for which the Developer
awards his own construction contract, Developer agrees to the following
procedure:
1. Developer agrees to pay the following:
a. Inspection fees equal to three percent (3 %) of the cost of the
water , street, drainage and sanitary sewer facilities, on all
facilities included in this agreement for which Developer
awards his or her own construction contract, to be paid prior
to construction of each phase and based on actual bid
construction cost;
b. Administrative Processing Fee equal to two percent (2 %) of
the cost of water, street, drainage and sanitary sewer
facilities, on all facilities included in this Agreement for which
Developer awards his or her own construction contract, to be
paid prior to construction of each phase and based on actual
bid construction cost;
C. Trench testing (95% Standard);
d. The additional charge for inspections during Saturday,
Sunday, holidays, and after normal working hours;
e. Any charges for retesting as a result of failed tests;
f. All gradation tests required to insure proper cement and /or
lime stabilization.
2. The City agrees to bear the expense of:
a. All nuclear density tests on the roadway subgrade (95%
Standard);
b. Technicians time for preparing concrete cylinders; and
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C. Concrete cylinder tests and concrete coring samples.
The City can delay connection of buildings to service lines or water
mains constructed under this Agreement until said water mains and
service lines have been completed to the satisfaction of and
acceptance by the City.
F. The Developer will be responsible for mowing all grass and weeds and
otherwise reasonably maintaining the aesthetics of all land and lots in said
Addition which have not been sold to third parties. After fifteen (15) days
written notice, should the Developer fail in this responsibility, the City may
contract for this service and bill the Developer for reasonable costs. Such
amount shall become a lien upon all real property of the Addition so
maintained by the City, and not previously conveyed to other third parties,
120 days after Developer has notice of costs.
G. The form of Resolution to be adopted by the Board of Trustees of the
Carroll Independent School District and the form of any contractor bonds,
letters of credit, or other written commitments required herein shall be
submitted to the City Attorney and this Agreement shall not be considered
in effect until such City Attorney has approved the instrument. Approval
by the City shall not be unreasonably withheld or delayed.
H. Any surety company through which a bond is written shall be a surety
company duly authorized to do business in the State of Texas, provided
that the City, through the City Manager, shall retain the right to reject any
surety company as a surety for any work under this or any other
Developer's Agreement within the City regardless of such company's
authorization to do business in Texas. Approval by the City shall not be
unreasonably withheld or delayed.
Except as otherwise provided herein, the Developer agrees to fully comply
with the terms and conditions of all other applicable development
regulations and ordinances of the City.
J. The Developer agrees that the completed project will be constructed in
conformance with the Development Site Plan, Construction Plans and
other permits or regulatory authorizations granted by the City during the
development review process.
II. FACILITIES
A. ON -SITE WATER
The Developer hereby agrees to install water facilities to service
improvements as shown on the final plat of the Addition. Water facilities
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will be installed in accordance with plans and specifications to be prepared
by the Developer's engineer and released by the City. Further, the
Developer agrees to complete this installation in accordance with
Ordinance No. 170 and shall be responsible for all construction costs,
materials and engineering. In the event that certain water lines are to be
oversized because of City requirements, the City will reimburse the
Developer for the oversize cost greater than the cost of an 8" line.
Additionally, the City agrees to provide temporary water service at
Developer's request and expense, for construction, testing and irrigation
purposes only, to improvements during the construction of buildings, even
though sanitary sewer service may not be available to the buildings.
B. DRAINAGE
Developer hereby agrees to construct the necessary drainage facilities
within the Addition. These facilities shall be in accordance with the plans
and specifications to be prepared by Developer's engineers, released by
the Director of Public Works, the City, and made part of the final plat as
approved by the Planning and Zoning Commission. The Developer
hereby agrees to fully comply with all EPA and TNRCC requirements
relating to the planning, permitting and management of storm water which
may be in force at the time that development proposals are being
presented for approval by the City.
C. STREETS
The street construction in the Addition will be installed in accordance with
plans and specifications to be prepared by the Developer's engineer and
released by the Director of Public Works.
1. All street improvements will be subject to inspection and approval
by the City. No work will begin on any street included herein prior
to complying with the requirements contained elsewhere in this
Agreement. All water, sanitary sewer, and storm drainage utilities
which are anticipated to be installed within the street or within the
street right -of -way will be completed prior to the commencement of
street construction on the specific section of street in which the
utility improvements have been placed or for which they are
programmed. It is understood by and between the Developer and
the City that this requirement is aimed at substantial compliance
with the majority of the pre - planned facilities.
It is understood that in every construction project a decision later
may be made to realign a line or service which may occur after
construction has commenced. The Developer has agreed to advise
the City Director of Public Works as quickly as possible when such
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a need has been identified and to work cooperatively with the City
to make such utility change in a manner that will be least disruptive
to street construction or stability.
D. ON -SITE SANITARY SEWER FACILITIES
The Developer hereby agrees to install sanitary sewage collection facilities
to service improvements as shown on the final plat of the Addition.
Sanitary sewer facilities will be installed in accordance with the plans and
specifications to be prepared by the Developer's engineer and released by
the City. Further, the Developer agrees to complete this installation in
compliance with all applicable city ordinances, regulations and codes and
shall be responsible for all construction costs, materials, engineering and
permits. In the event that certain sewer lines are to be oversized because
of City requirements, the City will reimburse the Developer for the oversize
cost greater than the cost of an 8" line.
E. EROSION CONTROL
During construction of the Addition and after the streets have been
installed, the Developer agrees to keep the streets free from soil build -up.
The Developer agrees to use soil control measures, such as those
included in NCTCOG STANDARD SPECIFICATIONS FOR PUBLIC
WORKS CONSTRUCTION, DIVISION 1000 EROSION AND SEDIMENT
CONTROL, to prevent soil erosion. It will be the Developer's responsibility
to present to the Director of Public Works a soil control development plan
that will be implemented for this Addition. When in the opinion of the
Director of Public Works there is sufficient soil build -up on the streets or
other drainage areas and notification has been given to the Developer, the
Developer will have seventy -two (72) hours to clear the soil from the
affected areas. If the Developer does not remove the soil within 72 hours,
the City may cause the soil to be removed either by contract or City forces
and place the soil within the Addition at the contractor's expense. All fees
owed to the City will be collected prior to acceptance of the Addition.
After construction of the Addition and prior to acceptance by the City, the
Developer agrees to have a permanent erosion control plan prepared and
approved by the Director of Public Works and have the plan installed and
working, effectively, in the opinion of the Director of Public Works. This
erosion control will prevent soil erosion from the newly created lot /lots
from washing into street rights of way, drainage ways or other private
property.
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F. AMENITIES
It is understood by and between the City and Developer that the Addition
may incorporate a number of unique amenities and aesthetic
improvements such as ponds, aesthetic lakes, unique landscaping, walls,
and may incorporate specialty signage and accessory facilities. The
Developer agrees to accept responsibility for the construction and
maintenance of all such aesthetic or specialty items such as walls,
vegetation, signage, landscaping, street furniture, pond and lake
improvements.
G. USE OF PUBLIC RIGHT -OF -WAY
It is understood by and between the City and Developer that the
Developer may provide unique amenities within public right -of -way, such
as landscaping, irrigation, lighting, etc., for the enhancement of the
Addition. The Developer agrees to maintain these amenities for so long
as Developer owns the property. The Developer understands that the City
shall not be responsible for the replacement of these amenities under any
circumstances and further agrees to the extent permitted by Texas law, to
indemnify and hold harmless the City from any and all damages, loss or
liability of any kind whatsoever by reason of injury to property or third
person occasioned by its use of the public right -of -way with regard to
these improvements to the extent permitted by Texas law, and the
Developer shall, at his own cost and expense, defend and protect the City
against all such claims and demands.
H. START OF CONSTRUCTION
Before the construction of the water, sewer, streets or drainage facilities
can begin, the following must take place:
1. Approved resolutions and contractor's payment and performance
bonds must be submitted to the City in the name of the City prior to
commencement of any work.
2. At least six (6) sets of construction plans to be stamped "Released
for Construction" by the Director of Public Works must be
submitted.
3. All fees required to be paid to the City unless additional direction is
provided to staff resulting from City Council and CISD Board of
Trustees discussions.
4. Developer Agreement must be executed by all parties.
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5. The Developer's Contractor shall furnish to the City a policy of
general liability insurance, naming the City as co- insured, prior to
commencement of any work. All insurance must meet the
Requirements of Contractor's Insurance attached hereto and
incorporated herein.
6. A Pre - Construction Meeting to be held with all Contractors, major
Sub - Contractors, Utilities and appropriate Government Agencies.
III. GENERAL PROVISIONS
A. INDEMNIFICATION
DEVELOPER SHALL REQUIRE ANY CONTRACTORS PERFORMING
WORK IN THE ADDITION TO INDEMNIFY, HOLD HARMLESS AND
DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND
EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR
SUITS FOR PROPERTY DAMAGE OR LOSS AND /OR PERSONAL
INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF
WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, (INCLUDING, WITHOUT LIMITATION, REASONABLE
FEES AND EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
OTHER CONSULTANTS), ARISING OUT OF OR IN CONNECTION
WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION,
MAINTENANCE, OCCUPANCY, USE, EXISTENCE OR LOCATION OF
SAID IMPROVEMENT OR IMPROVEMENTS, AND SHALL FURTHER
BE LIABLE FOR INJURY OR DAMAGE TO CITY PROPERTY. ARISING
officers or agents for the accuracy and competency of their design and
specifications. Such approval shall not be deemed to be an assumption of
such responsibility and liability by the City for any defect in the design and
specifications prepared by the consulting engineer, his officers, agents,
servants or employees, it being the intent of the parties that approval by
the Director of Public Works signifies the City's approval on only the
general design concept of the improvements to be constructed.
C. This Agreement or any part herein, or any interest herein, shall not be
assigned by the Developer without the express written consent of the City
Manager, which shall not be unreasonably withheld or delayed.
D. Subject to the requirements of Texas Education Code Chapter 44 ,
Subchapter B, on all facilities included in this Agreement for which the
Developer awards his or her own construction contract, the Developer
agrees to employ a construction contractor who is approved by the City,
and whose approval shall not be unreasonably withheld or delayed, said
contractor to meet City and statutory requirements for being insured,
licensed and bonded to do work in public projects and to be qualified in all
respects to bid on public projects and to be qualified in all respects to bid
on public projects of a similar nature.
In addition, the Developer's Contractors shall furnish the payment and
performance bonds in the name of the City prior to the commencement of
any work hereunder and shall also furnish to the City a policy of general
liability insurance.
E. Work performed under the Agreement shall be completed within two (2)
years from the date thereof.
F. Prior to final acceptance of the Addition, the Developer shall provide to the
City three (3) copies of Record Drawings of the Addition, showing the
facilities as actually constructed.
G. Such drawings will be stamped and signed by a registered professional
civil engineer. In addition, the Developer shall provide electronic files
showing the grading plan and drainage area map; the plan and profile of
the sanitary sewer, storm drain, roadway and waterline; all lot lines, and
tie in to the state Plane Coordinate System.
OTHERISSUES
A. DOWN STREAM CRITICAL STRUCTURE FEE. This development flows
to the downstream critical drainage structure #13. The fee for this
structure is $371.20 /acre. The total fee for this development is $9,255.87.
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B. OFF -SITE SEWER. The City Developer will construct approximately 731
L.F. of 8 -inch off -site sanitary sewer improvements at no cost to the city in
order to serve the development.
C. PARK FEES. The City and Developer agree that the Developer will pay
the required Park Dedication Fee of $59,844.
The City and Developer intend to negotiate an interlocal agreement
concerning possible future joint use of the Carroll Middle School property.
D. TREE PRESERVATION ORDINANCE
All construction activities shall comply with the current Tree Preservation
Ordinance requirements and as may be amended by the City Council.
Such conditions include, but are not limited to, proper posting of tree
protection warning signs and tree protective fencing to be maintained
throughout the duration of the project.
E. IMPACT FEES
Tex. Loc. Gov't Code Section 395.022 (b) provides that a school district is
"not required to pay impact fees ... unless the board of trustees of the
district consents to the payment of the fees by entering into a contract with
the political subdivision that imposes the fees." The CISD Board of
Trustees has taken no action indicating that they consent to the payment
of impact fees.
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SIGNED AND EFFECTIVE on the date last set forth below.
DEVELOPER
By:
Title:
Address:
STATE OF
COUNTY OF
On , before me, , Notary
Public, personally appeared
, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same
in his authorized capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
My commission expires:
(SEAL)
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CITY OF SOUTHLAKE, TEXAS
la
John Terrell, Mayor
ATTEST:
Lori Payne, City Secretary
Date:
Page ll of 16 10/20/09
REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT
1. The Letter of Credit must have duration of at least one year.
2. The Letter of Credit may be substituted for utility security deposits exceeding
$10,000.00. The City reserves the right to specify the face amount of the letter of
credit.
3. The Letter of Credit must be issued by a FDIC insured bank in a form acceptable
to the City of Southlake. The City reserves the right to approve /disapprove the
bank issuing the Letter of Credit.
4. The Letter of Credit must be issued by a bank that has a minimum capital ratio of
six (6 %) percent, and has been profitable for each of the last two consecutive
years.
5. The customer must provide the City with supporting financial information on the
bank to allow the City to ascertain requirements are met. Suitable financial
information would be the previous two (2) years December 31 Call Reports
submitted to the FDIC and audited financial statements.
6. Partial drawings against Letters of Credit must be permitted.
7. The City must be able to draft on sight with proof of amount owed.
8. The customer pays any and all fees associated with obtaining Letter of Credit.
9. Expiring Letter of Credit must be replaced by substitute Letters of Credit at least
30 days prior to the expiration date on the Letter of Credit held by the City.
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REQUIREMENTS FOR CONTRACTOR'S INSURANCE
Contractor's Insurance
1. Without limiting any of the other obligations or liabilities of the CONTRACTOR, during the term of
the Contract, the CONTRACTOR shall purchase and maintain the following minimum insurance
coverages with companies duly approved to do business in the State of Texas and satisfactory to the
CITY. In this section "Project" shall mean the public facilities to be constructed by Developer or under
Developer's contract with a CONTRACTOR. Coverages shall be of the following types and not less than
the specified amounts:
Workers' compensation as required by Texas law, with the policy endorsed to
provide a waiver of subrogation as to the CITY; employer's liability insurance of
not less than the minimum statutory amounts.
b. Commercial general liability insurance, including premises- operations;
independent CONTRACTOR's liability, completed operations and
contractual liability covering, but not limited to, the liability assumed under
the indemnification provisions of this Contract, fully insuring
CONTRACTOR's (or Subcontractor's) liability for injury to or death of
CITY's employees and third parties, extended to include personal injury
liability coverage with damage to property of third parties, broad form
property damage, with minimum limits as set forth below:
General Aggregate . .....................$2,000,000
Bodily Injury $1,000,000 Each Occurrence
Property Damage $1,000,000 Each Occurrence
Products — Components /Operations Aggregate . $1,000,000
Personal and Advertising Injury ............ $ 1,000,000
(With Employment Exclusion deleted)
Each Occurrence ...................... $ 1,000,000
Contractual Liability:
Bodily Injury $1,000,000 Each occurrence
Property Damage $1,000,000 Each occurrence
The policy shall include coverage extended to apply to completed operations, asbestos
hazards (if this project involves work with asbestos) and ECU (explosion, collapse and
underground) hazards. The completed operations coverage must be maintained for a
minimum of one year after final completion and acceptance of the work, with evidence of
same filed with CITY.
C. Comprehensive automobile and truck liability insurance, covering owned, hired and non -
owned vehicles, with a combined bodily injury and property damage minimum limit of
$1,000,000 per occurrence; or separate limits of $500,000 for bodily injury (per person),
and $500,000 for property damage. Such insurance shall include coverage for loading
and unloading hazards.
d. Property Insurance (Builder's All Risk)
(i) CONTRACTOR shall purchase and maintain, at all times during the term of its
Contract with the Developer property insurance written on a builder's risk "all-
Page 13 of 16 10/20/09
risk" or equivalent policy form in the amount of the initial contract price, plus
value of subsequent contract modifications and cost of materials supplied or
installed by others, comprising total value for the entire Project at the site on a
replacement cost basis without optional deductibles. Such property insurance
shall be maintained, unless otherwise in writing by all persons and entities who
are beneficiaries of such insurance, until final payment has been made or until no
person or entity other than the CITY has an insurable interest in the property
required by this paragraph to be covered, whichever is later. This insurance shall
include interests of the CITY, the CONTRACTOR, Subcontractors and Sub -
Subcontractors in the Project.
(ii) Property insurance shall be on an "all- risk" or equivalent policy form and shall
include, without limitation, insurance against the perils of fire (with extended
coverage) and physical loss or damage including, without duplication of
coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood,
windstorm, falsework, testing and startup, temporary buildings and debris
removal including demolition occasioned by enforcement of any applicable legal
requirements, and shall cover reasonable compensation for CONTRACTOR's
services and expenses required as a result of such insured loss.
(iii) If the insurance required by this paragraph requires deductibles, the
CONTRACTOR shall pay costs not covered because of such deductibles.
(iv) This property insurance shall cover portions of the Work stored off the site, and
also portions of the Work in transit.
d. OWNER's Protective Liability Insurance:
(i) CONTRACTOR shall obtain, pay for and maintain at all times
during the prosecution of the work under the contract between the
CONTRACTOR and the Developer, a CITY's protective liability
insurance policy naming the CITY as insured for property damage
and bodily injury, which may arise in the prosecution of the work or
CONTRACTOR's operations under the contract.
(ii) Coverage shall be on an "occurrence" basis, and the policy shall be
issued by the same insurance company that carries the
CONTRACTOR's liability insurance with a combined bodily injury
and property damage minimum limit of $1,000,000 per occurrence.
e. "Umbrella" Liability Insurance:
The CONTRACTOR shall obtain, pay for and maintain umbrella liability insurance during
the term of the Contract between the CONTRACTOR and the Developer, insuring
CONTRACTOR for an amount of not less than $5,000,000 per occurrence combined
limit for bodily injury and property damage that follows form and applies in excess of the
primary liability coverages required herein above. The policy shall provide "drop down"
coverage where underlying primary insurance coverage limits are insufficient or
exhausted.
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Policy Endorsements
Each insurance policy to be furnished by CONTRACTOR shall include the following
conditions by endorsement to the policy:
a. name the CITY as an additional insured as to all applicable policies;
b. each policy shall require that 30 days prior to cancellation, non - renewal or any
material change in coverage, a notice thereof shall be given to CITY by certified
mail. If the policy is canceled for nonpayment of premium, only 10 days written
notice to CITY is required;
C. the term "CITY" shall include all authorities, boards, bureaus, commissions,
divisions, departments and offices of the CITY and individual members,
employees and agents thereof in their official capacities, and /or while acting on
behalf of the CITY;
d. the policy- phrase "other insurance" shall not apply to the CITY where the CITY is an
additional insured on the policy.
2. Special Conditions
a. Insurance furnished by the CONTRACTOR shall be in accordance with the following
requirements:
any policy submitted shall not be subject to limitations, conditions or restrictions
deemed inconsistent with the intent of the insurance requirements to be fulfilled
by CONTRACTOR. The CITY's decision thereon shall be final;
ii. all policies are to be written through companies duly licensed to transact that
class of insurance in the State of Texas; and
iii. all liability policies required herein shall be written with an "occurrence" basis
coverage trigger.
b. CONTRACTOR agrees to the following:
�. CONTRACTOR hereby waives subrogation rights for loss or damage to the extent same
are covered by insurance. Insurers shall have no right of recovery or subrogation against
the CITY, it being the intention that the insurance policies shall protect all parties to the
contract and be primary coverage for all losses covered by the policies;
ii. companies issuing the insurance policies and CONTRACTOR shall have no
recourse against the CITY for payment of any premiums or assessments for any
deductibles, as all such premiums and deductibles are the sole responsibility and
risk of the CONTRACTOR;
iii. approval, disapproval or failure to act by the CITY regarding any insurance
supplied by the CONTRACTOR (or any Subcontractors) shall not relieve the
CONTRACTOR of full responsibility or liability for damages and accidents as set
forth in the Contract Documents or this Agreement. Neither shall be bankruptcy,
insolvency or denial of liability by the insurance company exonerate the
CONTRACTOR from liability;
Page 15 of 16 10/20/09
IN
u
deductible limits on insurance policies exceeding $10,000 require approval of the
CITY;
any of such insurance policies required under this paragraph may be written in
combination with any of the others, where legally permitted, but none of the
specified limits may be lowered thereby;
vii. prior to commencement of operations pursuant to this Contract, the Developer or
the Developer's CONTRACTOR shall furnish the CITY with satisfactory proof
that he has provided adequate insurance coverage in amounts and by approved
carriers as required by this Agreement;
viii. CONTRACTOR shall provide notice of any actual or potential claim or litigation
that would affect required insurance coverages to the CITY in a timely manner;
ix. CONTRACTOR agrees to either require its Subcontractors to maintain the same
insurance coverage and limits as specified for the CONTRACTOR or coverage of
Subcontractors shall be provided by the Contract; and
X. Prior to the effective date of cancellation, CONTRACTOR shall deliver to the
CITY a replacement certificate of insurance or proof of reinstatement.
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