Item 10A Developer's AgreementPIN OAK ESTATES
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 PIN OAK ESTATES, 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
57 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. Developer agrees that the Addition will consist solely of single -
family residential site built homes. "Site built" means a structure or
home built and assembled entirely at the home site, and specifically
excludes mobile homes, manufactured homes, modular homes,
industrialized buildings, and industrialized housing, as those terms
are defined in Texas Revised Civil Statutes, Article 5221(f). 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, 5, 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
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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.
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.
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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.
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.
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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.
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.
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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 homes, even though
sanitary sewer service may not be available to the homes.
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 for the City,
and made part of the final plat as approved by the Planning and
Zoning Commission, and the drainage facilities shall be constructed
to meet 100 year flood conditions. The Developer hereby agrees to
fully comply with all EPA and TCEQ 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. The Developer hereby agrees to comply
with all provisions of the Texas Water Code.
C. LAW COMPLIANCE
Developer hereby agrees to comply with all federal, state, and local
laws that are applicable to development of this Addition.
D. STREETS
1. The street construction in the Addition shall conform to the
requirements in accordance with plans and specifications to
be prepared by the Developer's engineer and released by
the Director of Public Works. Streets will be installed in
accordance with the plans and specifications to be prepared
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by the Developer's engineer and released by the Director of
Public Works.
2. The Developer will be responsible for:
a. Installation and two year operation cost 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
streetlights 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 of Uniform Traffic Control
Devices as prepared by the Developer's engineer by
an engineering study or direction by 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.
3. 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
hereby agrees to advise the City Director of Public Works as
quickly as possible when such a need has been identified
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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.
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 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.
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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, and 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.
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.
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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 Requirement 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 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.
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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 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
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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.
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.
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IV. OTHER ISSUES
A. STREETS AND ON -SITE AND OFF -SITE DRAINAGE
The developer will have construction plans prepared and contract
for the construction of the streets and drainage, which shall meet
City standards as more fully detailed above. The City will
contribute the amount of $250,000 for the street and drainage
construction. Payment by the City to the developer of such amount
shall be made after the construction has been completed and
accepted by the City, and when funds are available.
B. BUILDING PERMIT FEES
The City will waive all building permit fees associated with the
construction of new single - family residential site built homes in the
addition. No building permit fees shall be waived by the City for
other than site built homes. Developer agrees that in the event that
any non -site built home or structure is established on any
developable lot in the addition, developer shall make
reimbursement of all sums paid to developer by the City for
contribution for the street and drainage construction within _ days
of receipt of notice and demand by the City.
C. CITY OWNED LOT
After construction of streets and drainage is complete and
improvements have been accepted by the City, the City will transfer
title to the one lot that it owns in the addition, Lot 1, Block 1, to
Developer. Developer and City acknowledge that Chapter 272,
Texas Local Government Code, requires that before land owned by
the City may be sold or exchanged, notice to the public of the offer
of the land for sale must be published and the land must be bid.
D. ROADWAY, WATER AND WASTEWATER IMPACT FEES
The City will give the developer credit for the roadway, water and
wastewater impact fees for Block 1, Lots 1, 4, 8 and 17 and Block
2, Lots 1, 9, 15, 22 and 26.
E. PARK FEES
There are no park fees due on this addition as it was originally
subdivided prior to the City's park land dedication ordinance.
A. TREE PRESERVATION ORDINANCE
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All construction activities should meet the requirements of the Tree
Preservation Ordinance No. 585 -A.
SIGNED AND EFFECTIVE on the date last set forth below.
DEVELOPER:
By:
Title:
Address:
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STATE OF TEXAS
COUNTY OF TARRANT
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:
CITY OF SOUTHLAKE, TEXAS
as
Ri StaGy Mayor
ATTEST:
' eri F arwe ll City Secretary
Date:
(SEAL)
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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
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 . $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.
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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.
e. OWNER's Protective Liability Insurance:
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(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.
f. "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 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.
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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;
iv. deductible limits on insurance policies exceeding $10,000
require approval of the CITY;
V. any of such insurance policies required under this paragraph
may be written in combination with any of the others, where
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legally permitted, but none of the specified limits may be
lowered thereby;
vi. 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;
vii. 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;
viii. 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
ix. 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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