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HomeMy WebLinkAboutContract 56852 Date Received: 12/16/2021 Permit Number: MAINT21-007 Time Received: 12:53 pm City Secretary Number: 56852 AGREEMENT FOR MAINTENANCE OF NON-STANDARD IMPROVEMENTS THIS AGREEMENT FOR MAINTENANCE OF NON-STANDARD IMPROVEMENTS ("Agreement"), is by and between the City of Fort Worth, a Texas home rule municipal corporation ("City") and VRE BERRY STREET, LLC, a Texas limited liability company ("Developer"). City and Developer are sometimes referred to as a Party or Parties. This Agreement will be effective as of the Effective Date established herein. SECTION 1 DESCRIPTION OF PROPERTY 1.01 Developer is the owner of certain property in Fort Worth, Tarrant County, Texas, located at 600 WEST BERRY STREET, FORT WORTH, TEXAS 76110, and depicted on "Exhibit A", attached and incorporated into this Agreement (the "Developer Property"). 1.02 The City and Developer hereby agree that Developer will provide, furnish, and perform the services specified herein on City-owned sidewalks and right-of-ways (the "Project Site") located adjacent to the Developer Property, as further described in this Agreement in "Exhibit B",attached and incorporated into this Agreement. SECTION 2 DUTIES AND RESPONSIBILITIES 2.01 Developer shall commence, carry on, and provide the services contemplated in the Contracts (as defined herein) in accordance with this Agreement and its attachments and all applicable laws. In providing such services, Developer shall take such steps as are appropriate to ensure that the work involved is properly coordinated with any related work performed by the City or the City's authorized representative. Developer represents that it has or will secure, at its own expense, all materials, supplies, machinery, equipment, tools, superintendence, labor, personnel, insurance, and other accessories and services necessary to provide maintenance of the following elements ("Improvements"), all of which are to be installed pursuant to and as more particularly described in the contract for construction services by the Developer. a. Description of items to be maintained—2 bike racks, 3 trash receptacles, and one bench along Hemphill Street; 2 bike rack, 3 trash receptacles and one bench along West Berry Street Maintenance Agreement of Non-Standard Improvements OFFICIAL RECORD CITY SECRETARY Revised 5/07/21 FT. WORTH, TX 2.02 Developer shall maintain the areas described in Section 2.02 in good working condition so that the Improvements perform their design function. If pursuant to n o t i c e from the City, Developer is made aware of any deficiency in the safe and proper functioning of the Improvements described in Section 2.02 then Developer shall promptly inspect the Improvements and submit an inspection report to the City. Such inspection report shall (1) note any areas described in Section 2.02, or portions thereof, which need maintenance or replacement to perform their design function and (ii) address the corrective actions to be taken by Developer in accordance with Section 2.06 of this Agreement. 2.03 The City shall be responsible for maintaining its streets and travel lanes excluding the special pavement treatments described above in accordance with normal City policies and procedures. The City shall take such steps as are appropriate to ensure that the work involved is properly coordinated with any related work performed by Developer or the Developer's authorized representative. 2.05 In the event that any City-owned property, such as utilities, curbs, equipment, turf, trees, etc., are damaged or destroyed during maintenance of the improvements due to negligence or acts of omissions by Developer, Developer shall be responsible for all repairs or replacements of same. 2.06 In the event Developer, its successor or assigns, fails to maintain the areas described in Section 2.02 in the manner required by this Agreement, City shall provide written notice of the non-compliant conditions to Developer, its successor or assigns. Developer, its successors or assigns, shall make any necessary repairs to comply with this Agreement within thirty (30) days of receipt of such written notice or, if such repairs are not reasonably able to be completed within thirty (30) calendar days, Developer shall have, within that period, begun work on such repairs and shall diligently pursue them to completion, provided, however, that if the non-compliant conditions creates a condition which poses an immediate threat to life, health, or property such repair shall be completed within thirty (30) days of receipt of written notice. If Developer, its successors or assigns, does not make such repairs as provided herein, the City may enter upon the Project Site and take whatever steps reasonably necessary to correct the non-compliant conditions and to charge the costs of such repairs to Developer, its successors and assigns. 2.07 The City is not obligated to repair the Improvements beyond a level of City's standard specifications. In the event, however, the City pursuant to this Agreement performs any work of any nature that is Developer's obligation hereunder and which Developer has failed to perform, or the City expends any funds in performance of said work for labor, use of equipment, supplies, materials, and the like that is Developer's Maintenance Agreement of Non-Standard Improvements Page 2 of 18 Revised 5/07/21 obligation hereunder and which Developer has failed to perform, Developer, its successors or assigns, shall reimburse the City, within thirty (30) days of the City making such demand, for the costs attributable to such work performed by the City including: (i)the cost difference between the City's standard street specifications and the Improvements installed by the Developer and (ii)the total cost of any repairs that are outside of the street pavement area. In the event that Developer or its successors or assigns fails to pay the City for the costs incurred under this section, the City may take whatever legal steps are necessary to recover from Developer all reasonable and actual costs incurred by the City for the work performed. SECTION 3 TERM OF AGREEMENT The term of this Agreement shall commence upon the Effective Date and shall continue until the earlier of(i) Developer's permanent removal of the Improvements from the Project Site and restoration of the Project Site to the then-existing City standards or (ii) the earlier termination of this Agreement as provided herein. SECTION 4 TITLE AND CONSTRUCTION The Parties acknowledge that the Improvements to be maintained as provided in this Agreement are the subject of the Contracts and that all necessary reviews, approvals, consents, inspections and modifications of such Improvements, if any, have been or will be made pursuant to those Contracts. Subject to the provisions of the Contracts, Developer shall retain ownership of the landscaping, special sidewalk and pavement pavers, benches, project signage, special lighting and other Improvements installed or located in the City right-of-way pursuant to the Contracts. SECTION 5 RIGHT OF ACCESS 5.01 City through its Manager, Transportation and Public Works Director, police and fire personnel, and other designated representatives, has the right at any time to enter any portion of the Project Site (without causing or constituting a termination of the use or an interference of the use of the Project Site by Developer) for the purpose of inspecting and maintaining same and taking any and all measures necessary for the proper conduct and operation of City property; provided this shall not authorize or empower the City to direct the activities of Developer or assume liability for Developer's activities. 5.02 The City will have the right but not the obligation to make routine inspections of the Project Site. In the event the City observes non-compliance of an area or a condition which poses a threat to life, health, or property, the City shall notify Developer in writing i Maintenance Agreement of Non-Standard Improvements Page 3 of 18 Revised 5/07/21 n accordance with Section 2.06 of this Agreement. SECTION 6 INDEMNIFICATION 6.01 DEVELOPER, ITS SUCCESSORS OR ASSIGNS,AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES, HARMLESS AGAINST ANYAND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO DEVELOPER'S BUSINESS AND ANY RESULTING LOST PROFITS)AND/OR PERSONAL INJURY, INCL UDING DEATH, THAT MAY RELATE TO,ARISE OUT OF OR BE OCCASIONED BY(i) DEVELOPER'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii)ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF DEVELOPER, ITS OFFICERS,AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO MAINTENANCE OR THE PERFORMANCE OF DEVELOPER'S OBLIGATIONS UNDER THIS AGREEMENT;EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH DEVELOPER AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPOR TIONED COMPARA TI VEL Y IN A CCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LA WS OF TEXAS. 6.02 Developer, its successors or assigns, covenants and agrees that City shall in no way nor under any circumstances be responsible for any property belonging to Developer, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers, which may be stolen, destroyed, or in any way damaged, and the Developer hereby releases the City from any and all such claims. The City does not guarantee police protection and will not be liable for any loss or damage sustained by Developer, its members, employees, agents, contractors, subcontractors, invitees, licensees, or trespassers on the Project Site. It is further agreed that the acceptance of this release shall not constitute a waiver by the City of Fort Worth of any defense of governmental immunity, where applicable. or any other defense recognized by the statutes and court decisions of this State. Maintenance Agreement of Non-Standard Improvements Page 4 of 18 Revised 5/07/21 SECTION 7 INSURANCE Developer shall not commence work under this Agreement until it has obtained a n d provided documentation thereof for the insurance required by"Exhibit C", attached hereto and incorporated herein. Developer shall be responsible for delivering to the City Developer's certificate of insurance for approval. Any contractors performing maintenance on the Improvements shall also provide to Developer and City documentation of insurance required by Exhibit C. Notwithstanding anything contained in this Agreement(or Exhibit C) to the contrary, in event 7-11 (as hereinafter defined) assumes the obligations of Developer hereunder pursuant to Section 15, 7-11 shall have the right to self-insure as to some or all of the risks covered by this Section 7 and Exhibit C in accordance with the Lease(as hereinafter defined)provided that Tenant maintains a net worth of not less than$100,000,000.00. SECTION 8 INDEPENDENT CONTRACTOR Developer shall perform all work and services hereunder as an independent contractor and not as an officer, agent, servant or employee of the City. Developer shall have exclusive control of, and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, and employees and sub-consultants/subcontractors. Nothing herein shall be construed as creating a partnership or joint venture between the City and Developer, its officers, agents, employees and sub consultants/subcontractors, and doctrine of respondent superior has no application as between the City and Developer. SECTION 9 LICENSES AND PERMITS Developer shall comply with all federal, state and local laws, rules and regulations as well as with all regulations, restrictions and requirements of the police, fire and health departments now or hereafter in effect which are applicable to its operations. Developer shall obtain and keep in effect at its own cost and expense all licenses, permits, and taxes incurred or required in connection with this Agreement and its operations hereunder. SECTION 10 LIENS Developer, its successors or assigns, agrees that it shall do no act nor make any contract that may create or be the foundation for any lien upon or interest in the City's property, and any such contract or lien attempted to be created shall be void. Should any purported lien Maintenance Agreement of Non-Standard Improvements Page 5 of 18 Revised 5/07/21 on City property be created or filed, Developer, its successors or assigns, at its sole expense, shall discharge same within thirty (30) days aver notice from City to do so. SECTION 11 TERMINATION AND DEFAULT 11.01 Subject to the provisions of Section 11.02 below, in the event Developer fails to comply with any of the terms and conditions of this Agreement after notice and the passage of the appropriate cure period provided in this Agreement, City shall have the right, and without further notice, to declare this Agreement immediately terminated and to enter into and take full possession of the City's interest in the Project Site, save and except such personal property and equipment as may be owned by Developer. In the event of such termination of this Agreement by the City, all rights, duties and privileges of Developer hereunder shall cease and terminate. 11.02 Developer shall be notified by written correspondence of Developer's failure to comply with any of the terms and conditions of this Agreement. Developer shall have thirty (30) calendar days from the date of written correspondence to correct deficiencies or, if such deficiencies are not reasonably able to be corrected within thirty (30) calendar days, Developer shall have, within that period, begun work on such corrections and shall diligently purse them to completion. 11.03 Upon termination, the parties shall be released from all obligations contained in this Agreement except for any indemnification obligations pursuant to Section 6 of this Agreement occurring prior to the effective date of such termination. 11.04Termination notice shall be considered rendered three business days after being placed in the United States Postal Service for delivery to the other party in accordance with Section 13. SECTION 12 NON- DISCRIMINATION/DISABILITIES Developer, in its installation or maintenance of the Improvements, o f occupancy or use of the Project Site, shall not discriminate against any person or persons because of race, age, gender, religion, color, national origin, sexual orientation, or disability nor will Developer permit its officers, agents, employees or subcontractors to engage in such discrimination. Maintenance Agreement of Non-Standard Improvements Page 6 of 18 Revised 5/07/21 SECTION 13 NOTICES Any notice required shall be sufficient if deposited in the U.S. Mail, postage prepaid and addressed to the other parry as follows: CITY: City of Fort Worth Transportation &Public Works Department Attn:Assistant Director 200 Texas Street Fort Worth, Texas 76102 With copy to: City Attorney's Office 200 Texas Street Fort Worth, Texas 76102 DEVELOPER: VRE BERRY STREET,LLC c/o Verdad Real Estate, Inc. 1211 S. White Chapel Boulevard Southlake, Texas 76092 With copy to: 7-Elcvcn, Inc. P.O. Box 711 Dallas,Texas 75221-0711 All notices required to be sent to the Developer hereunder this Agreement shall also be required to be sent to 7-Eleven, Inc. SECTION 14 VENUE AND JURISDICTION This Agreement shall be governed by the laws of the State of Texas. Venue for any action brought to interpret or enforce, or arising out of or incident to, the terms of this Agreement shall be in Tarrant County. Texas or the United States District Court for the Northern District Maintenance Agreement of Non-Standard Improvements Page 7 of 18 Revised 5/07/21 of Texas, Fort Worth Division. SECTION 15 ASSIGNMENT 15.01 Developer agrees that it will not assign all or any part of its rights, privileges or duties hereunder without the prior written consent of the City and any attempted assignment of same without such prior consent of the City shall be void except that Developer may, without prior written consent, assign any or all of its rights, privileges or duties hereunder to (a) an affiliate (defined as an entity under common control with Developer), (b) to an authorized Public Improvement District whose boundaries include the Project Site, (c) to 7- Eleven, Inc., a Texas corporation("7-11"), as a tenant operating on the Developer Property pursuant to that certain Freestanding Lease dated February 25, 2020 (as amended, the "Lease"), or (d) to the purchaser of the Developer Property as provided in Section 15.03, below (each an "Allowed Assignment"). In the event of an Allowed Assignment, Developer will notify the City within thirty (30) days of such assignment. If notice of an Allowed Assignment is not provided within thirty (30) days to the City such assignment shall be void. In the event of an assignment permitted above, Developer shall automatically be released from any further obligation or liability under this Agreement. Notwithstanding the foregoing, or anything in this Agreement to the contrary, it is understood and agreed that Developer will contract or subcontract various parts of its obligations hereunder to others to perform on behalf of Developer, and such contracting or subcontracting is expressly permitted hereunder. 15.02 Subject to the limitations contained herein, the covenants, conditions and agreements made and entered into by the parties hereunder are declared to be for the benefit of and binding on their respective successors, representatives and permitted assigns, if any. 15.03 Notwithstanding anything herein to the contrary, no provision of this Agreement shall be construed to prohibit or restrict Developer's ability to (a) sell, lease, pledge or otherwise transfer the Developer Property or any part thereof, or (b) allow 7-11 to assume the Developer's obligations and requirements hereunder. Upon any such transfer of the Developer Property, the benefits and obligations of this Agreement shall run with the Developer Property, or portion thereof, and bind Developer's successors in interest in proportion to the interest in the Developer Property so transferred. SECTION 16 WAIVER, SECTION HEADINGS, AND SEVERASILITY 16.01 In the event any covenant, condition or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of such covenant, condition or provision shall in no way affect any other covenant, condition or provision herein contained; provided however,that the invalidity of any such covenant, condition or provision does not materially prejudice either Developer or City in connection with the rights and obligations contained Maintenance Agreement of Non-Standard Improvements Page 8 of 18 Revised 5/07/21 in the valid covenants, conditions or provisions of this Agreement. 16.02. The waiver by the City of any default or breach of a term, covenant or condition of this Agreement shall not be deemed to be a waiver of any other breach of that term, covenant or condition or any other term, covenant or condition of this Agreement, regardless of when the breach occurred. 16.03 The headings in this Agreement are inserted for reference only, and shall not define or limit the provisions hereof. SECTION 17 RECORDATION This Agreement shall be recorded in the Real Property Records of the applicable county and shall be a covenant running with the land binding upon all parties having any right, title or interest in the Developer Property and Project Site, or any part thereof, including their heirs, successors and assigns, and shall inure to the benefit of the owners of the Developer Property and Project Site and to the City. SECTION 18 ENTIRE UNDERSTANDING 18.01 This written instrument including all Attachments, Schedules, and Exhibits attached hereto constitutes the entire agreement by the Parties concerning this Agreement and the obligations of the Parties, and any prior or contemporaneous oral or written agreement that purports to vary from the terms hereof shall be void. This Agreement cannot be modified or amended without the written consent of all the Parties. 18.02 Neither this Agreement nor any provision hereof may be modified except by an instrument in writing, signed by the Parties. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. 18.03. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, taken together, shall be one and the same instrument. Electronic signatures and facsimile, pdf or other copies of original signatures shall be binding as originals. [Signature Pages and Exhibits Follow] Maintenance Agreement of Non-Standard Improvements Page 9 of 18 Revised 5/07/21 IN WITNESS WHEREOF, the Parties have each executed this Agreement by each party's duly authorized representative. This Agreement shall be effective upon the execution and date subscribed by the City's designated City Manager ("Effective Date"). CITY OF FORT WORTH DEVELOPER: VRE BERRY STREET, LLC A Texas Limited Liab' ' Company Dana BUY H a By: hdoff(5ec 14,2021 18:45 CST) By: Dana Burghdoff,Asst. City Manager Jason Keen City of Fort Worth Manager Date: Dec 14,2021 Date: 12/10/2021 APPROVED AS TO FORM AND LEGALITY: WA Dec 13,2021 BY:Mack(Dec 14,2021 14:08 CST) M&C Douglas Black Assistant City Attorney Date: Dec 14,2021 OFFICIAL RECORD Maintenance Agreement of Non-Standard Improvements CITY SECRETARY Revised 5/07/21 FT. WORTH, TX CONTRACT COMPLIANCE MANAGER: ATTEST: By signing, I acknowledge that I am the person responsible or the monitoring and administration By:g ette S.Goodall(Dec 16,202108 CST) of this contract, including ensuring all Jannette Goodall performance and reporting requirements. City Secretary sca C_1_t_m raL_k Date: Dec 16,2021 Janie Scarlett Morales(Dec 13,202116:09 CST) Janie S. Morales a�FORTa Development Manager Al YO00000000000�%O�� Date: Dec 13,2021 �10 0;0 P..o $�Id 00o o=d 0,00 T-C.P. 0000 Maintenance Agreement of Non-Standard Improvements OFFICIAL RECORD CITY SECRETARY Revised 5/07/21 FT. WORTH, TX THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Dana Burghdoff, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as the act and deed of the City of Fort Worth, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 15th day of December 120 21 �pPYP(ie WENDY L BEARDSLEE ao G� Digitally signed by Wendy L. Notary Public Wendy L. +®+� STATE OF TEXAS Beardslee Notary I.D. 13323719-3 Date:2021.12.15 09:35.47 9�oF My Comm.Exp.July 28,2025 Bea rd s I ee -06'00' Notary Public in and for the State of Texas OFFICIAL RECORD Maintenance Agreement of Non-Standard Improvements CITY SECRETARY Revised 5/07/21 FT. WORTH, TX THE STATE OF TEXAS § COUNTY OF DALLAS § BEFORE, ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Jason Keen , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, as VRE Berry Street, LLC a Texas Limited Liability company, as the act and deed of said liability company. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 10th day of December , 20 21 1 , Notary Public in and for the State of Texas ;++'+"',,, KELLY BRAD LEY ` rPY PV9'i :Notary Public, State of Texas %^,� `P Comm. Expires 03-21-2022 ,sip k 0 Notary ID 131498431 inn+ OFFICIAL RECORD Maintenance Agreement of Non-Standard Improvements CITY SECRETARY Revised 5/07/21 FT. WORTH, TX EXHIBIT A PROPERTY DESCRIPTION Being the south 49.50' of Lot 1, Block 32, South Hemphill Heights, an addition to the City of Fort Worth, Tarrant County, according to the map or plat thereof recorded in Volume 106, Page 132 Plat record, Tarrant County, Texas. Maintenance Agreement of Non-Standard Improvements Page 14 of 18 Revised 5/07/21 EXHIBIT B DETAILS OF IMPROVEMENTS Maintenance Agreement of Non-Standard Improvements Page 15 of 18 Revised 5/07/21 HEMPHILL STREET a m ieioy 80'R.O.W as ri- 4y VOLUME 108 PAGE 132 Cad P.R.T.C.T. cm ,pp� aria^ a Z'a^w o =mo psi J a FFFFFFFFFFFFFFFFFFFF FFFFFfFf FFFFiFFFiFF . 'aAFFFiFFFFFFFFFFFF...... FFFFFFFf FFFFFFFFFFF_ Y jl!j �iFFFiFFFFFFFFFFFFFFFFFF FFFFFFFF L 2n Z � ri ni n�ry o f2i'A at ` t si .�^a$^a ••� g 4 g 20'MAX.0.0C SETBACK a - - 0 00 p 0� rl �A ii s� air. ll m u,_m I BA �dGa 34.00 1 00' 0 K OGG' o 4 �m Is _ m.gpq s .gfm I xes NiHg a -L� .I s•rxz95mesrncs Pa. ❑ pN 6 aw Nam m UNDERGRC I v V p STORAGE O p A ER �EEINTP E�s> -91 F F �a i _ V� '•�_ \sssro�a ' I'.I h'.;,f. as A na a s ~ °gy S s 00 4N2-10fill O 8 Q s•• � �' y �iA� Ro9Ez m' ayoam8om O W g W m m44" p o � a u < _ m i Tv Az oy g�Ran�8z�@a��i� atic�onmT ,Z�fTj1�N Q25 8 'N' O T -m Z aD'AaoA Z Z � p mi n8 a� m� m mho 11.. a _ -r (n �u a a `9: y7 F�^��m N 33 = O = Fe F - __-- 4NF' 'lR - _gym"5J i� z az 7-ELEVEN#41531 EXHIBIT C CITY OF FORT WORTH STANDARD INSURANCE REQUIREMENTS (1) INSURANCE LIMITS a. Commercial General Liability — Insured shall maintain commercial general liability(CGL) and, if necessary, commercial umbrella insurance as follows: $1,000,000 each occurrence $2,000,000 aggregate If such Commercial General Liability insurance contains a general aggregate limit, it shall apply separately to this Project or location. i. City shall be included as an additional insured with all rights of defense under the CGL,using ISO additional insured endorsement or a substitute providing equivalent coverage, and under the commercial umbrella, if any. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to City. The Commercial General Liability insurance policy shall have no exclusions or endorsements that would alter or nullify: premises/operations, products/completed operations, contractual, personal injury, or advertising injury, which are normally contained within the policy, unless City specifically approves such exclusions in writing. ii. Insured waives all rights against City and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained in accordance with Agreement. b. Business Auto—Insured shall maintain business auto liability and, if necessary, commercial umbrella liability insurance as follows: $1,000,000 each accident(or reasonably equivalent limits of coverage if written on a split limits basis). Such insurance shall cover liability arising out of "any auto", including owned, hired, and non-owned autos, when said vehicle is used in the course of the Project. If Insured owns no vehicles, coverage for hired or non-owned is acceptable. Insured waives all rights against City and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the business auto liability or commercial umbrella liability insurance obtained by Insured pursuant to this Agreement or under any applicable auto physical damage coverage. c. Workers' Compensation — Insured shall maintain workers compensation and employers liability insurance and, if necessary, commercial umbrella liability Maintenance Agreement of Non-Standard Improvements Page 16 of 18 Revised 5/07/21 insurance as follows: Coverage A: statutory limits Coverage B: $100,000 each accident $500,000 disease-policy limit $100,000 disease-each employee Insured waives all rights against City and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by workers compensation and employer's liability or commercial umbrella insurance obtained by Engineer pursuant to this Agreement. d. Professional Liability (Errors & Omissions) — If appropriate, Insured shall maintain professional liability insurance as follows: $1,000,000- Each Claim Limit $2,000,000- Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims-made, and maintained for the duration of the contractual agreement and for three(3)years following completion of services provided. The policy shall contain a retroactive date prior or equal to the Effective Date of the Agreement or the first date of services to be performed, whichever is earlier. An annual certificate of insurance shall be submitted to City to evidence coverage. (2) GENERAL INSURANCE REQUIREMENTS a. Certificates of insurance evidencing that Insured has obtained all required insurance shall be attached to Agreement concurrent with its execution. Any failure to attach the required insurance documentation hereto shall not constitute a waiver of the insurance requirements. b. Applicable policies shall be endorsed to name City as an Additional Insured thereon, subject to any defense provided by the policy, as its interests may appear. The term City shall include its employees,officers, officials, and agents as respects the contracted services. Applicable policies shall each be endorsed with a waiver of subrogation in favor of City with respect to the Project. c. Certificate(s) of insurance shall document that insurance coverage limits specified in this Agreement are provided under applicable policies documented thereon. Insured's insurance policy(s) shall be endorsed to provide that said insurance is primary protection and any self-funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. Insured's liability shall not be limited to the specified amounts of insurance required herein. d. Other than worker's compensation insurance, in lieu of traditional insurance, Maintenance Agreement of Non-Standard Improvements Page 17 of 18 Revised 5/07/21 City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups. City must approve in writing any alternative coverage for it to be accepted. e. A minimum of thirty (30) days' notice of cancellation or material change in coverage shall be provided to City. A ten (10) days' notice shall be acceptable in the event of non-payment of premium. f. Insurers must be authorized to do business in the State of Texas and have a current A.M. Best rating of A: VII or equivalent measure of financial strength and solvency. g. Any deductible or self-insured retention in excess of$25,000 that would change or alter the requirements herein is subject to approval in writing by City, if coverage is not provided on a first-dollar basis. City, at its sole discretion, may consent to alternative coverage maintained through insurance pools or risk retention groups. Dedicated financial resources or letters of credit may also be acceptable to City. h. In the course of the Agreement, Insured shall report, in a timely manner, to City's Contract Compliance Manager any known loss or occurrence which could give rise to a liability claim or lawsuit or which could result in a property loss. i. City shal I be entitled,upon its request and without incurring expense,to review Insured's insurance policies including endorsements thereto and, at City's discretion, Insured may be required to provide proof of insurance premium payments. j. Lines of coverage, other than Professional Liability, underwritten on a claims- made basis, shall contain a retroactive date coincident with or prior to the date of this Agreement. The certificate of insurance shall state both the retroactive date and that the coverage is claims-made. k. Coverages, whether written on an occurrence or claims-made basis, shall be maintained without interruption nor restrictive modification or changes from date of commencement of the Project until final payment and termination of any coverage required to be maintained after final payments. 1. City shall not be responsible for the direct payment of any insurance premiums required by Agreement. in. Subcontractors of Insured shall be required by Insured to maintain the same or reasonably equivalent insurance coverage as required for Insured. Upon City's request, Insured shall provide City with documentation thereof. Maintenance Agreement of Non-Standard Improvements Page 18 of 18 Revised 5/07/21 POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG20100413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Locations Of Covered Operations When required by written contract Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to B. With respect to the insurance afforded to these include as an additional insured the person(s) or additional insureds, the following additional exclusions organization(s) shown in the Schedule, but only with apply: respect to liability for"bodily injury", "property damage" This insurance does not apply to "bodily injury" or or "personal and advertising injury" caused, in whole "property damage"occurring after: or in part, by: 1. All work, including materials, parts or equipment 1. Your acts or omissions; or furnished in connection with such work, on the 2.The acts or omissions of those acting on your behalf; project(other than service, maintenance or repairs) to be performed by or on behalf of the additional in the performance of your ongoing operations for insured(s)at the location of the covered operations the additional insured(s) at the location(s) has been completed; or designated above. 2. That portion of"your work"out of which the injury or damage arises has been put to its However: intended use by any person or organization other 1. The insurance afforded to such additional insured only than another contractor or subcontractor engaged applies to the extent permitted by law; and in performing operations for a principal as a part of 2. If coverage provided to the additional insured is the same project. required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. CG 20 10 04 13©Insurance Services Office, Inc., 2012 Page 1 of 2 POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 37 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Location And Description Of Completed Opera- Or Organ ization s : tions As per written contract Information required to complete this Schedule, if not shown above, will be shown in the Declarations. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the schedule of this endorsement performed for that additional insured and included in the "products- completed operations hazard". CG 20 37 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 ❑ C. With respect to the insurance afforded to 2. Available under the applicable Limits of these additional insureds, the following is added to Insurance shown in the Declarations; Section III—Limits Of Insurance: whichever is less. If coverage provided to the additional insured is This endorsement shall not increase the applicable required by a contract or agreement, the most we Limits of Insurance shown in the Declarations. will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or Page 2 of 2 © Insurance Services Office, Inc., 2012 CG 20 10 04 13 POLICY NUMBER: COMMERCIAL GENERAL LIABILITY CG 20 11 01 96 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - MANAGERS OR LESSORS OF PREMISES This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE 1. Designation of Premises(Part Leased to You): 2. Name of Person or Organization(Additional Insured): When required by written contract 3. Additional Premium: (If no entry appears above,the information required to complete this endorsement will be shown in the Declarations as appli- cable to this endorsement.) WHO IS AN INSURED(Section H)is amended to include as an insured the person or organization shown in the Schedule but only with respect to liability arising out of the ownership,maintenance or use of that part of the premises leased to you and shown in the Schedule and subject to the following additional exclusions: This insurance does not apply to: 1. Any"occurrence"which takes place after you cease to be a tenant in that premises. 2. Structural alterations,new construction or demolition operations performed by or on behalf of the person or organization shown in the Schedule. CG 20 11 01 96 Copyright,Insurance Services Office,Inc., 1994 Page 1 of 1 13 Policy Number: Commercial General Liability THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY., ADDITIONAL INSURED — MORTGAGEE, ASSIGNEE, OR RECEIVER This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: When Required by Written Contract Designation of Premises: (If no entry appears above, information required to complete this endorsement will be shown on the Declarations as applicable to this endorsement,) 1. WHO IS AN INSURED (Section II), is amended to include as an insured the person(s) or organization(s) shown in the Schedule, but only with respect to their liability as mortgagee, assignee, or receiver and arising out of the ownership, maintenance, or use of the presmises by you and shown in the Schedule. 2. This insurance does not apply to structural alterations, new construction and demolition operations performed by or for that person or organization. CG 2018 1185 Copyright, Insurance Services Office, Inc. 1984 Page 1 of 1 COMMERCIAL GENERAL LIABILITY CG 20 34 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - LESSOR OF LEASED EQUIPMENT - AUTOMATIC STATUS WHEN REQUIRED IN LEASE AGREEMENT WITH YOU This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. Who Is An Insured (Section II) is amended to A person's or organization's status as an additional include as an additional insured any person or or- insured under this endorsement ends when their ganization from whom you lease equipment when contract or agreement with you for such leased you and such person or organization have agreed equipment ends. in writing in a contract or agreement that such per- B. With respect to the insurance afforded to these son or organization be added as an additional in- additional insureds, this insurance does not apply sured on your policy. Such person or organization to any "occurrence" which takes place after the is an insured only with respect to liability for"bodily equipment lease expires. injury", "property damage" or "personal and adver- tising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person or organization. CG 20 34 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 ❑