Item 4DCity of Southlake, Texas
MEMORANDUM
June 17, 2008
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Public Works Director
Subject: Approve a Residential Developer Agreement with Bosworth Farms II,
L.P. East Haven Addition, a 7 lot (6 residential, 1 Public Park)
subdivision located on the south side of W. Continental Boulevard,
west of Carroll Avenue
Action
Requested: Approve a Residential Developer Agreement with Bosworth Farms II,
L.P. East Haven Addition, a 7 lot (6 residential, 1 Public Park) subdivision
located on the south side of W. Continental Boulevard, west of Carroll
Avenue
Background
Information: The developer will construct approximately 460 LF of 5 foot wide public
sidewalk along W. Continental Boulevard and a 6 foot wide pedestrian
bridge with concrete abutments for said bridge along the south side of
Continental, east of the subject development. The Developer has requested
100% city participation in the design and construction cost of the
pedestrian bridge.
An 8 -inch sewer line is currently under construction along Haven Circle
that will service the four (4) southern lots. This developer agreement
covers the construction of these public improvements.
Financial
Considerations: Approximately 230 L.F. of 8" sanitary sewer line is required to serve the
proposed development.
The developer will dedicate Lot 22A, 8,963 square feet as Public Park to
the City of Southlake.
The developer will construct a 5ft wide concrete sidewalk along the south
side of Continental Boulevard. The city has funds available in the
approved Capital Improvement Program to participate in the construction
of the above mentioned pedestrian bridge.
Citizen Input/
Board Review: None
Legal
Review: This is the City's standard residential developer's agreement, originally,
drafted by the City Attorney.
Alternatives: The City Council may approve it, deny it or modify it.
Supporting
Documents: Standard Residential Developer Agreement
Location Map
Staff
Recommendation: Approve a Residential Developer Agreement with Bosworth Farms II,
L.P. East Haven Addition, a 7 lot subdivision located along the south side
of W. Continental Boulevard, west of Carroll Avenue.
Staff
Contact: Robert H. Price, P.E., Director of Public Works
Gordon Mayer, P.E., Deputy Director of Public Works / City Engineer
Michael James, P.E., Civil Engineer
Page 2 of 2
EAST HAVEN ADDITION
Pedestrian Bridge Improvements
RESIDENTIAL 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
East Haven Pedestrian Bridge Improvements, hereinafter referred to as the "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 6 lots contained within the
Addition 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. Since the Developer is prepared to develop the Addition as rapidly as
possible and is desirous of selling lots to builders and having residential
building activity begin as quickly as possible and the City is desirous of
having the Addition completed as rapidly as possible, the City agrees to
release 10% of the lots, (0) after installation of the water and sewer mains.
Framing shall not commence until water quality is approved by the City
and all appropriate Fire Code requirements are satisfied and street signs
with street names are in place. Temporary all- weather metal signs
securely fastened in the ground are acceptable until permanent street
signs are installed. The Developer recognizes that the remaining building
permits or Certificates of Occupancy for residential dwellings will not be
issued until the supporting public works infrastructure including permanent
street signs with block numbers and regulatory signs within the Addition
have been accepted by the City. This will serve as an incentive to the
Developer to see that all remaining items are completed.
C. The Developer will present to the City either a cash escrow, Letters of
Credit or 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 of the 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 Addition 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.
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The value of the performance bond, Letters 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. Each request for
reduction or payment of escrow funds must be accompanied by lien
release(s) executed by all subcontractors and /or suppliers prior to the
release of escrow funds or reduction in value of the account. Performance
and payment bond, Letters 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.
D. The Developer agrees to furnish to the City maintenance bonds, letters of
credit or cash escrow amounting to 100% of the cost of construction of
underground utilities and 100% of the construction cost for paving. These
maintenance bonds, letters 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, letters 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.
If the Developer chooses to construct bar ditches in lieu of curb and gutter,
and the City approved the design and grade of bar ditches, Developer
understands and agrees to provide maintenance on the bar ditches for a
period of two years from the date of acceptance of the Addition.
Maintenance includes trash and debris cleanup, mowing, and erosion
control.
E. Until the performance and payment bonds, Letters of Credit or cash
escrow required in Paragraph C have been furnished as required, no
approval of work on or in the Addition shall be given by City and no work
shall be initiated on or in said Addition by Developer, save and except as
provided above.
F. It is further agreed and understood by the parties hereto that upon
acceptance by the City, title to all facilities and improvements mentioned
hereinabove 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 shall occur
at such time that the City, through its City Manager or his duly authorized
representative, provides Developer with a written acknowledgement that
all facilities are complete, have been inspected and approved and are
being accepted by the City.
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G. On all public facilities included in this Agreement for which 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 re- testing 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.
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H. The Developer and any third party, independent entity engaged in the
construction of houses, hereinafter referred to as "Builder" 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 or Builder fail in this responsibility, the City may contract for
this service and bill the Developer or Builder for reasonable costs. Should
such cost remain unpaid for 120 days after notice, the City can file a lien
on such property so maintained.
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.
J. 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.
II. FACILITIES
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C. LAW COMPLIANCE
Developer hereby agrees to comply with all federal, state, and local laws
that are applicable to development of this Addition.
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E. ON SITE SANITARY SEWER FACILITIES
The Developer hereby agrees to install sanitary sewerage 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 and engineering.
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.
F. 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 the NCTCOG STANDARD SPECIFICATIONS FOR PUBLIC
WORKS CONSTRUCTION, Division 1000 EROSION AND SEDIMENT
CONTROL to prevent soil erosion. It will be the Developer's responsibility
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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
streets or affected areas. If the Developer does not remove the soil from
the street 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 Developer's expense. All expenses must be paid to the City 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 lots from
washing into street rights of way, drainage ways or other private property.
G. 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 item such as walls,
vegetation, signage, landscaping, street furniture, pond and lake
improvements until such responsibility is turned over to a homeowners
association.
H. 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 such
responsibility is turned over to a homeowners association. The Developer
and his successors and assigns understand 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.
Page 7 of 18
START OF CONSTRUCTION
Before the construction of the streets, and the water, sewer, 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 the commencement of any
work.
2. At least ten (10) 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.
6. A pre- construction meeting between Developer and City is
required. Developer or contractor shall furnish to the City a list of
all subcontractors and suppliers, which will be providing greater
than a $1,000 value to the Addition.
III. 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, MAINTENANCE, OCCUPANCY,
USE, EXISTENCE OR LOCATION OF SAID IMPROVEMENT OR
IMPROVEMENTS, AND SHALL FURTHER BE LIABLE FOR INJURY
OR DAMAGE TO CITY PROPERTY, ARISING OUT OF OR IN
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CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF
DEVELOPER, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES,
CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES,
SAID INDEMNIFICATION TO REMAIN IN EFFECT UNTIL THE CITY
ACCEPTS THE ADDITION.
DEVELOPER AGREES TO INDEMNIFY THE CITY, ITS OFFICERS AND
EMPLOYEES FOR ANY DAMAGES, CLAIMS OR LIABILITIES
ARISING FROM THE NEGLIGENT ACT OR OMISSION, OR OF THE
CONCURRENT NEGLIGENT ACT OR OMISSION, OF THE CITY, ITS
OFFICERS AND EMPLOYEES.
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 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 judgement which may be incurred by or
rendered against them or any of them in connection 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 own construction contract, the Developer agrees to employ a
construction contractor who is approved by the City, and whose approval
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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 streets and to be qualified in all respects to bid on public
streets and to be qualified in all respects to bid on public projects of a
similar nature.
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 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 shall have 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. The City is an exempt organization under Section 151.309, Tax Code, and
the facilities constructed under this Agreement will be dedicated to public
use and accepted by the City upon acknowledgement by the City of
completion under Paragraph 1.F.
1. The purchase of tangible personal property, other than machinery
or equipment and its accessories, repair, and replacement parts, for
use in the performance of this Agreement is, therefore, exempt
from taxation under Chapter 151, Tax Code, if the tangible property
is
a. necessary and essential for the performance of the
Agreement; and
b. completely consumed at the job site.
2. The purchase of a taxable service for use in the performance of this
Agreement is exempt if the service is performed at the job site and
if:
a. this Agreement expressly requires the specific service to be
provided or purchased by the person performing the
Agreement; or
b. the service is integral to the performance of the Agreement.
H. Prior to final acceptance of the Addition, the Developer shall provide to the
City four (4) copies of Record Drawings of the Addition, showing the
facilities as actually constructed.
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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.
IV. OTHER ISSUES
A. 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.
B. OFF -SITE SIDEWALK IMPROVEMENTS
The Developer has offered to construct or cause to be constructed at his
sole cost an off -site 5 foot wide concrete sidewalk for an approximate
length of 460 L. F., located in the south right -of -way of Continental Blvd.
adjacent to the northern perimeter of said development and east of the
subject development up to the beginning of the pedestrian bridge
described in Section C below.
C. PEDESTRIAN BRIDGE IMPROVEMENTS
The Southlake City Council has determined that it is in the best interest of
its citizens to complete the construction of pedestrian access route along
the south side of Continental Blvd. The City agrees to reimburse the
developer in an amount not to exceed $42,600.00 for the construction cost
of a 6 foot wide pedestrian bridge required to complete the construction of
the pedestrian access route.
D. PARK DEDICATION REQUIREMENTS
The developer will dedicate Lot 22A, an 8,963 square foot lot, to the City
for use as a Public Park. The development will also include landscaping /
irrigation, paved trail, park identification signage, and benches at a value
of $45,000; Relocation of the Continental Storage building to a selected
site in the City's Service Center at a value of approximately $40,000 to
include in general dismantling the building, pouring a concrete slab,
providing electrical service, replacing or repairing any damaged elements,
re- assembling and painting the building, with the developer to bear any
costs above that estimate; HOA payment of water in park area.
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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
Andy Wambsganss, Mayor
ATTEST:
Lori Payne, City Secretary
Date:
Page 13 of 18
REQUIREMENTS FOR IRREVOCABLE LETTER OF CREDIT
1. The Letter of Credit must have a 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 percent (6 %), 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 Letter 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
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.
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 -
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
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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.
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.
"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 apple 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 shall be bankruptcy,
insolvency or denial of liability by the insurance company exonerate the
CONTRACTOR from liability;
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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.
Page 18 of 18
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