Item 4JCITY OF
SQUTHLAK -E
MEMORANDUM
(August 17, 2010)
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Director of Public Works
Subject: Approve a Commercial Developer Agreement with Gateway
Church for construction of westbound lanes of Kirkwood
Boulevard adjacent to new Carroll Middle School located at
1800 East Kirkwood Boulevard
Action
Requested: Approve a Commercial Developer Agreement with Gateway
Church for construction of westbound lanes of Kirkwood Boulevard
adjacent to new Carroll Middle School located at 1800 East
Kirkwood Boulevard.
Background
Information: Gateway Church is proposing to construct the westbound lanes of
Kirkwood Blvd., adjacent to the new Carroll Middle School (CMS)
prior to the opening of the new CISD campus.
While Gateway Church is required as part of the zoning case (ZA-
08 -022) for the development to build these lanes, they are not
committed to building the westbound lanes until Phase III of their
development. Gateway Church has approached the City of
Southlake and the Carroll Independent School District (CISD) and
has proposed that the Carroll Independent School District and the
City of Southlake join Gateway Church in constructing the
westbound lanes of Kirkwood Blvd. adjacent to the new CMS
campus to minimize the interruption to the campus operation at a
later date. The Carroll Independent School Board of Trustees has
agreed to participate in the cost of construction of this section of
Kirkwood Blvd. in an amount equal to what their staff and
consultants feel would have been expended on Kirkwood Blvd.
access improvements. CISD has agreed to participate in a cost not
to exceed $126,441.
This Commercial Developer Agreement (CDA) establishes the
responsibility of Gateway Church to construct the westbound lanes
of Kirkwood Blvd adjacent to the new CMS campus with
participation by CISD and the City of Southlake. All remaining
costs to construct this section of Kirkwood Blvd will be borne by
Gateway Church.
A separate Interlocal Agreement (Item 41) with the CISD authorizes
the City of Southlake to also participate in the costs of construction
of the above mentioned westbound lanes of Kirkwood Blvd in an
amount equal to the CISD participation, $126,441.
Gateway Church has also agreed to participate in the extension of
Kirkwood Blvd. to the west by dedicating a 0.056 Acre tract of land
necessary for the connection of Highland Avenue to Kirkwood Blvd.
While the participation of the CISD and the City of Southlake
reduces the financial burden of Gateway Church, building the lanes
prior to the opening of the new Carroll Middle School will
significantly benefit the entire community by minimizing the
inconvenience brought about by the building of these lanes once
the school campus and Gateway Church are fully operational.
Financial
Considerations: By approval of this Commercial Developer Agreement with the
Gateway Church, the City of Southlake is committing Carroll
Independent School District and City of Southlake funds, in the
amount of $126,441 each toward the construction of the above
mentioned project. All remaining costs to construct the westbound
Kirkwood lanes adjacent to the new CMS campus will be borne by
Gateway Church.
Strategic Link: The proposed CDA links the city's strategy map relative to the
focus areas of Infrastructure and Performance Management and
Service Delivery. The specific corporate objectives that are met by
the construction of the development are: Collaborating with select
partners to implement service solutions and providing high quality
customer service.
Citizen Input/
Board Review: N/A
Legal Review: The City Attorney's office has reviewed and approved of the
requested changes to the CDA.
Alternatives: The City Council may approve or deny the commercial developer's
agreement.
Supporting
Documents
Staff
Recommendation
Location Map
Gateway Church Proposed Dedication — Kirkwood R.O.W. Parcel
Gateway Church Commercial Developer Agreement — Westbound
Kirkwood Lanes adjacent to new CMS campus.
Approve a Commercial Developer Agreement with Gateway
Church for construction of westbound lanes of Kirkwood Boulevard
adjacent to new Carroll Middle School located at 1800 East
Kirkwood Boulevard.
Staff Contact: Robert H. Price, P.E., Public Works Director
Gordon J. Mayer, Jr., P.E., City Engineer
Michelle McCullough, P.E., Civil Engineer
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GATEWAY CHURCH
Kirkwood Boulevard Improvements, Phase II
COMMERCIAL DEVELOPER AGREEMENT
An agreement between the City of Southlake, Texas, hereinafter referred to as
the "City ", and the undersigned Developer, hereinafter referred to as the
"Developer ", of Gateway Church hereinafter referred to as "Addition" to the City
of Southlake, Tarrant County, Texas, and as depicted and fully described per the
documents attached hereto as Exhibit "A ", 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 commercial 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 the northernmost Westbound
lanes of Kirkwood Boulevard covered by this Agreement.
B. The Developer will present to the City either a cash escrow, Letter
of Credit, performance bond and payment bond acceptable to the
City guaranteeing and agreeing to pay an amount equal to 100% of
the value of the construction cost of all the public facilities to be
constructed by the Developer, and providing for payment to the City
of such amounts, up to the total remaining amounts required for the
completion of the public facilities if the Developer fails to complete
the work within two (2) years of the signing of this Agreement
between the City and Developer. All bonds shall be issued by a
Best -rated bonding company. All letters of credit must meet the
Requirements for Irrevocable Letter of Credit attached hereto and
incorporated herein.
The value of the performance bond, letter of credit or cash escrow
will reduce at a rate consistent with the amount of work that has
been completed by the Developer and accepted by the City.
Performance and payment bond, letter of credit or cash escrow
from the prime contractor(s) or other entity reasonably acceptable
to the City, hereinafter referred to as Contractor, will be acceptable
in lieu of Developer's obligations specified above.
C. The Developer agrees to furnish to the City maintenance bonds,
letter of credit and cash escrow amounting to 100% of the cost of
construction of underground public utilities and 100% for the
Commercial Developer Agreement Page 1 of 19
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 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. For
purposes of this agreement, the fees will be
applicable on Gateway Church's proportionate share
of the 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;
Commercial Developer Agreement Page 2 of 19
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
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 until acceptance by the City.. 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. Any guarantee of payment instrument (Performance Bond, Letter of
Credit, etc.) submitted by the Developer or Contractor on a form
other than the one which has been previously approved by the City
as "acceptable" 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
Commercial Developer Agreement Page 3 of 19
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.
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
lots as shown on the final plat of the Addition. Water facilities 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 individual lots 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.
Commercial Developer Agreement Page 4 of 19
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. The Developer will be responsible for:
a) Installation and two year operation of street lights,
which is payable to the City prior to final acceptance
of the Addition; or an agreement with utility provider
stating that no charge will be made for street lights for
the two -year duration.
b) Installation of all street signs designating the names
of the streets inside the Addition, said signs to be of a
type, size, color and design standard generally
employed by the Developer and approved by the City
in accordance with City ordinances;
C) Installation of all regulatory signs recommended
based upon the Manual on Uniform Traffic Control
Devices as prepared by the Developer's engineer by
an engineering study or direction of the Director of
Public Works. It is understood that Developer may
put in signage having unique architectural features,
however, should the signs be moved or destroyed by
any means, the City is only responsible for
replacement of standard signage.
2. 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.
Commercial Developer Agreement Page 5 of 19
In every construction project a decision a need or desire to
realign a line or service which may arise after construction
has commenced. The Developer agrees to advise the City
Director of Public Works as quickly as possible when such a
need is 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 lots 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, permits and Impact
Fees. 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 seventy -two (72) hours, the City may remove the soil
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
Commercial Developer Agreement Page 6 of 19
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.
F. 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
until the Addition /project is accepted by the City. During the time
that Developer is responsible under this sub - paragraph, the
Developer understands that the City shall not be responsible for the
replacement of these amenities under any circumstances and
further agrees 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 and the
Developer shall, at his own cost and expense, defend and protect
the City against all such claims and demands.
G. START OF CONSTRUCTION
Before the construction of the water, sewer, streets or drainage
facilities can begin, the following must take place:
1. Approved 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.
4. Developer Agreement must be executed.
5. The Developer, or 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.
Commercial Developer Agreement Page 7 of 19
6. A Pre - Construction Meeting to be held with all Contractors,
major Sub - Contractors, Utilities and appropriate Government
Agencies.
GENERAL PROVISIONS
A. INDEMNIFICATION
DEVELOPER COVENANTS AND AGREES TO INDEMNIFY AND
DOES HEREBY 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, OF SAID IMPROVEMENT
OR IMPROVEMENTS, AND SHALL FURTHER BE LIABLE FOR
INJURY OR DAMAGE TO CITY PROPERTY, ARISING OUT OF
OR IN CONNECTION WITH ANY AND ALL ACTS OR
OMISSIONS OF DEVELOPER, ITS OFFICERS, AGENTS,
SERVANTS, EMPLOYEES, CONTRACTORS,
SUBCONTRACTORS, LICENSEES, OR INVITEES.
B. Venue of any action brought hereunder shall be in Fort Worth,
Tarrant County, Texas.
C. Approval by the Director of Public Works or other City employee of
any plans, designs or specifications submitted by the Developer
pursuant to this Agreement shall not constitute or be deemed to be
a release of the responsibility and liability of the Developer, his
engineer, employees, 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. In
this connection, the Developer shall for a period of two (2) years
after the acceptance by the City of the completed construction
project, indemnify and hold harmless the City, its officers, agents,
servants and employees, from any loss, damage, liability or
Commercial Developer Agreement Page 8 of 19
expense on account of damage to property and injuries, including
death, to any and all persons which may arise out of any defect,
deficiency or negligence of the engineer's designs and
specifications incorporated into any improvements constructed in
accordance therewith, and the Developer shall defend at his own
expense any suits or other proceedings brought against the City, its
officers, agents, servants or employees, or any of them, on account
thereof, to pay all expenses and satisfy all judgements which may
be incurred by or rendered against them or any of them in
connection with herewith.
D. 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.
E. 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, or Contractor 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.
F. Work performed under the Agreement shall be completed within
two (2) years from the date thereof. In the event the work is not
completed within the two (2) year period, the City may, at its
election, draw down on the performance bond, letter of credit or
other security provided by Developer and complete such work at
Developer's expense; provided, however, that if the construction
under this Agreement has started within the two (2) year period, the
City may agree to renew the Agreement with such renewed
Agreement to be in compliance with the City policies in effect at that
time.
G. 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.
Commercial Developer Agreement Page 9 of 19
H. 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.
III. OTHER ISSUES
A. OFF -SITE DRAINAGE — Not Applicable
B. OFF -SITE SEWER — Not Applicable
C. OFF -SITE WATER — Not Applicable
D. PARK FEES — Not Applicable
E. 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.
F. As part of this agreement, all parties agree that the connection of
Kirkwood Blvd to Highland Avenue and N. Carroll Avenue are of
great importance prior to the opening of the FY 2011 school year
when the proposed CISD middle school is scheduled to open.
Therefore, Gateway Church agrees to dedicate to the City of
Southlake the right -of -way necessary to construct intersection
connection improvements to Kirkwood Blvd. at Highland Avenue.
The actual costs of the intersection connection improvements to
Kirkwood Blvd. at Highland Avenue will be borne by the City of
Southlake. The necessary right -of -way document is attached as
Exhibit "B ".
G. City agrees to participate in the construction costs of the
northernmost (westbound) lanes of Kirkwood Blvd. along the
proposed CISD middle school site that is located adjacent to
Kirkwood Blvd. in an amount not to exceed $126,441 (not including
the waived portion of City fees outlined in Section 1.E (General
Requirements) of this agreement.
H. By separate agreement with the City of Southlake, Carroll
Independent School District (CISD) has agreed to participate in the
Commercial Developer Agreement Page 10 of 19
construction costs of the northernmost (westbound) lanes of
Kirkwood Blvd. (with Deceleration Lane) along the proposed CISD
middle school site that is located adjacent to Kirkwood Blvd. in an
amount not to exceed $126,441. This is the amount that CISD has
determined that have planned to expend on providing access
improvements to the proposed CISD middle school site located on
Kirkwood Blvd.
The city will reimburse Gateway Church in one combined payment
of $252,882 ($126,441 -City and $126,441 -CISD) within 30 days of
acceptance of the Addition /project. The dedication of the
necessary right -of -way for the construction of the intersection
connection improvements at Kirkwood Blvd. at Highland Avenue
must be completed and filed with the County prior to issuance of
the aforementioned payment to Gateway Church.
J. Furthermore, Gateway Church accepts full responsibility for all
remaining costs of constructing the northernmost (westbound)
lanes of Kirkwood Blvd. along the proposed CISD middle school
site that is located adjacent to Kirkwood Blvd. not outlined in
Paragraphs F & G of this section (GENERAL PROVISIONS) of this
agreement.
SIGNED AND EFFECTIVE on the date last set forth below.
DEVELOPER:
By:
Title:
Address:
Commercial Developer Agreement Page 11 of 19
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)
Commercial Developer Agreement Page 12 of 19
CITY OF SOUTHLAKE, TEXAS
John Terrell, Mayor
ATTEST:
Lori Payne, City Secretary
Date:
Commercial Developer Agreement Page 13 of 19
REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT
1. The Letter of Credit must have a duration of at least one (1) 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
(2) consecutive years.
5. The customer must provide the City with supporting financial information
from 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 thirty (30) days prior to the expiration date on the Letter of Credit
held by the City.
Commercial Developer Agreement Page 14 of 19
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:
a. 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
Personal and Advertising Injury ...........
(with Employment Exclusion deleted)
Each Occurrence ......................
Contractual Liability:
Bodily Injury (each occurrence)
Property Damage (each occurrence)
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
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 (1) year after final completion and acceptance
of the work, with evidence of same filed with CITY.
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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- 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.
Commercial Developer Agreement Page 16 of 19
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.
Policy Endorsements
1. 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 thirty (30) days prior to
cancellation, non - renewal or any material change in
coverage, a notice thereof shall be given to the CITY by
certified mail, return receipt requested. If the policy is
canceled for nonpayment of premium, only ten (10) days
written notice to the 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
C ITY;
Commercial Developer Agreement Page 17 of 19
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 polices 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
bankruptcy, insolvency or denial of liability by the insurance
company shall exonerate the CONTRACTOR from liability;
V. deductible limits on insurance policies exceeding $10,000
require approval of the CITY;
Commercial Developer Agreement Page 18 of 19
vi. any 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.
Commercial Developer Agreement Page 19 of 19
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