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2020-4196 - Ordinance - 07/09/2020
ORDINANCE NO. 2020-4196 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, APPROVING A PARTICIPATION AGREEMENT BY AND BETWEEN THE CITY AND BRYAN TRADTIONS L.P. FOR THE DEVELOPMENT OF TRADITIONS PHASE 24 AND 25 PROJECT AND AUTHORIZING THE EXPENDITURE OF FUNDS. WHEREAS, Bryan Traditions L.P. is a developer developing Traditions Phase 24 and 25; and WHEREAS, as part of said development, the construction of certain public infrastructure is required; and WHEREAS, pursuant to Section 212.071 et seq. Texas Local Government Code the City of College Station and the developer have agreed to jointly participate in the construction of certain public infrastructure to wit: Traditions Phase 24 and 25 18” Waterline Project (“Project”) as further set forth in a Participation Agreement ; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That the City Council hereby finds it to be in the best interests of its citizens to enter into that one certain Participation Agreement with Bryan Traditions L.P. for the construction of Traditions Phase 24 and 25 18” Waterline Project. A copy of said Participation Agreement is attached as Exhibit “A” and incorporated herein by reference. PART 2: That the City Council hereby approves the contract with Bryan Traditions L.P. obligating the CITY to pay a maximum of $122,756 out of a total estimated amount of $595,046 for the labor, materials and equipment required for the improvements related the Traditions Phase 24 and 25 18” Waterline Project. PART 3: That the funding for this Contract shall be as budgeted from the Water Capital Improvement Project Fund, College Station Utilities Division, in the amount of $122,756. PART 4: That this Ordinance shall take effect immediately from and after its passage. ORDINANCE NO. 2020-4196 Page 2 of 80 ADOPTED this 9th day of July, A.D. 2020. ATTEST: APPROVED: City Secretary MAYOR APPROVED: City Attorney ORDINANCE NO. 2020-4196 Page 3 of 80 EXHIBIT “A” Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure Contract No.___________ Rev. 6/15/2020 CITY OF COLLEGE STATION OVERSIZED PARTICIPATION AGREEMENT FOR CONSTRUCTING, RECONSTRUCTING, OR OVERSIZING PUBLIC INFRASTRUCTURE This Agreement is entered into by and between the City of College Station, a Texas Home Rule Municipal Corporation (hereinafter “City”), ______________________________________________, a (insert state) ________________ (check one) ___ corporation ___ partnership ___ sole proprietorship ___ limited liability company, whose principle office is located at ___________________________________________, _______________________, ________________, ________ (hereinafter “Developer”) and, (if applicable) ______________________________________________, a (insert state) ________________ (check one) ___ corporation ___ partnership ___ sole proprietorship ___ limited liability company, whose principle office is located at ___________________________________________, _______________________, ________________, ________ (hereinafter “Contractor”), whereas the City, Developer, and Contractor are hereinafter collectively referred to as the “Parties”. WHEREAS, Developer is developing property within the City of College Station city limits, more particularly described as _____________________________________________ College Station, Brazos County, Texas (hereinafter “Property”) a description of which is attached hereto as Exhibit “A”; and WHEREAS, Developer is required to construct, reconstruct, or oversize certain public infrastructure, such as roadways, utilities, sidewalks, drainage facilities, water and sewer facilities, that relate to Developer’s proposed development of the Property and the filed plat; and WHEREAS, Developer may engage a Contractor to perform portions of the above-described work; and WHEREAS, City is required or desirous of assuming some financial responsibility for construction, reconstruction, or oversizing of certain public infrastructure affecting Developer’s development; and WHEREAS, the City and Developer will receive benefits from participation in the construction, reconstruction, or oversizing of certain public infrastructure as set forth in this Agreement; and WHEREAS, because of this and in order to comply with City’s overall development plan, both Developer and City agree that it is in the best interests of the public for the Parties to construct, reconstruct, or oversize certain identified public infrastructure; and Bryan Traditions L.P.Traditions Phase 24 & 25 Water Line Improvements X 122,756 77807 Brazos Paving, Inc. X P.O. Box 714 Bryan Texas 77806 Traditions Phase 24 and 25 20300509 Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 2 Rev. 6/15/2020 WHEREAS, the City Engineer has reviewed the data, reports and analysis, including that provided by Developer’s engineers, and determined that certain such public infrastructure qualifies for City-Developer participation; and WHEREAS, the Parties agree as to the nature and proportion of participation as further recited herein and as may be required by applicable law including Chapter 212, Subchapter C, Developer Participation in Contract for Public Improvement and Chapter 252, Purchasing and Contracting Authority of Municipalities of the Texas Local Government Code; and NOW, THEREFORE, for and in consideration of the recitations above and the promises and covenants herein expressed, the Parties hereby agree as follows: ARTICLE I DEFINITIONS 1.1 Approved Plans means the plans and specifications that meet the requirements of this Participation Agreement, the plat(s) affecting the Property, the City of College Station Codes and Ordinances and any other applicable laws and that have been submitted to, reviewed and approved by the City of College Station relating to the Project. 1.2 City or College Station means the City of College Station, a Texas Home Rule Municipal Corporation located at 1101 Texas Avenue, College Station, Texas 77840, with a mailing address of P.O. Box 9960, College Station, Texas 77842. 1.3 Contractor means the contractor entity described in the caption of this Agreement (if applicable). 1.4 Developer means the developer entity described in the caption of this Agreement. 1.5 Effective Date. The date on which this Agreement is duly approved by both Parties. 1.6 Final Completion. The term "Final Completion" means that all the work on the Project has been completed, a written guarantee of performance for a one-year maintenance period has been provided, all final punch list items have been inspected and satisfactorily completed, all payments to material men and subcontractors have been certified as completed, all documentation, and all closeout documents have been executed and approved by the Developer as required, all Letters of Completion and other City documentation have been issued for the Project, all reports have been submitted and reporting requirements have been met, and Developer has fully performed or caused to be fully performed, all other requirements contained herein. 1.7 Letter of Completion. A letter issued by the City Engineer stating that the construction of public improvements conforms to the plans, specifications and standards contained in or referred to in the Unified Development Ordinance of the City of College Station and the Approved Plans. 1.8 Oversizing Participation Costs means the difference between the Project Costs of the necessary public infrastructure with oversizing and the Project Costs of the necessary public Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 3 Rev. 6/15/2020 infrastructure without oversizing, as contained in the Developer’s engineer’s detailed cost estimate prepared and sealed by a licensed professional engineer. Note: All levels of funding, including, but not limited to, Oversizing Costs, Participation Costs, and Project Costs and estimates shall be reviewed and approved by the City Engineer. 1.9 Property means that certain tract or tracts of land located at _____________________________________________ and as further described in Exhibit “A”. 1.10 Project means the construction of __________________________________________ improvements as described in Exhibit “C”, and includes the full cost of materials and labor for construction, but excludes City-paid oversizing costs and costs of surveys, easements, and engineering and inspection services. Note: All levels of funding, including, but not limited to, Oversizing Costs, Participation Costs, and Project Costs and estimates shall be reviewed and approved by the City Engineer. 1.11 Project Costs means the full cost of materials and labor for construction of the Project, but excluding City-paid oversizing costs and costs of surveys, easements, and engineering and inspection services. Note: All levels of funding, including, but not limited to, Oversizing Costs, Participation Costs, and Project Costs and estimates shall be reviewed and approved by the City Engineer. ARTICLE II CITY COST PARTICIPATION 2.1 Agree to Participate. City agrees to cost participate in the Project up to the maximum not- to-exceed amounts and percentages, as determined by the City Engineer and based upon the “Oversizing Participation Costs”, which includes the total Bond Costs (as defined in Section 5.1), as estimated in Exhibit “D”. City’s actual rate of participation will be based upon the final actual cost of the Project as reflected by the breakdown of costs required pursuant to this Agreement. In no event shall the City’s total costs exceed the maximum amounts estimated in Exhibit “D”. 2.2 Competitive Bidding. If the Project is located within the extraterritorial jurisdiction of the City, then the Project must be competitively bid pursuant to Chapter 252 of the Texas Local Government Code, as amended. If competitive bidding is required: a. Developer shall pay for all costs associated with advertising, printing, and distributing plans and specifications for the Project, and b. City will be responsible for placing the advertisements, obtaining bids, negotiating proposals, and awarding bids. 2.3 Cost of Project. Developer’s engineer’s sealed detailed cost estimate of the Project is attached hereto and incorporated herein as Exhibit “D”. 2.4 Application for Payment. Application for payment by the Developer to the City for payment to the Developer pursuant to the terms of this Agreement must include the following in a form acceptable to City: the end of Burgess Lane as shown in the plat of Traditions Phase 24 & 25 18" water line improvements per the Water Master plan Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 4 Rev. 6/15/2020 a. Certification by Developer of Final Completion of the Project in accordance with the Approved Plans; b. Copies of all Letters of Completion relating to the Project; c. Certification by Developer of Developer’s compliance with all City Codes, Ordinances and standards relating to the Project; d. Dedication of the land for the right-of-way or public utility easement either by plat or by separate public utility easement instrument approved and prepared by City; e. A title report dated within sixty (60) days of the date of such plat or public utility easement; f. Lien releases or subordinations from all lenders, if any, as required by City, and g. A breakdown of actual costs of the Project with supporting documentation, including all payment receipts and a breakdown of City’s portion of Project Costs, as appropriate. 2.5 City Participation Payment. Developer shall submit the written application for City participation payment within sixty (60) days after issuance of all Letters of Completion relating to the Project or Developer shall be ineligible to receive the City participation payment as specified in this Agreement and City’s obligation to cost participate shall terminate without any liability. Subject to written approval by the City Manager, the Developer’s sixty (60) day submittal deadline may be extended up to one-hundred twenty (120) days to account for extenuating circumstances related to the Project. Applications may not be submitted prior to the issuance of all Letters of Completion. City will pay its participation funds in one payment within forty-five (45) days after receipt of a complete written application for participation payment from Developer. 2.6 No Waiver of Impact Fees. By entering into this Agreement, the City does not waive nor exempt Developer from Impact Fees or other City fees. 2.7 Reports, books and other records. Developer shall make its books and other records related to the Project reasonably available for inspection by City. Developer shall submit to City any and all information or reports reasonably requested to verify the expenditures submitted for City participation eligibility including, but not limited to bid documents, payment applications, including any supporting information, canceled checks, copies of construction and engineering documents, as determined by the City Engineer in his reasonable discretion, for the verification of the cost of the Project detailed in Exhibits “C” and “D” of this Agreement. The submission of these reports and information shall be the responsibility of Developer and shall be certified by Developer’s Licensed Professional Engineer at Developer’s expense and signed by an authorized official of the entity. Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 5 Rev. 6/15/2020 ARTICLE III GOVERNMENTAL IMMUNITY, INDEMNIFICATION, RELEASE AND INSURANCE 3.1 BY ENTERING INTO THIS AGREEMENT, THE CITY DOES NOT CONSENT TO SUIT; WAIVE ITS GOVERNMENTAL IMMUNITY OR THE LIMITATIONS AS TO DAMAGES UNDER THE TEXAS TORT CLAIMS ACT. 3.2 INDEMNIFICATION. DEVELOPER AND CONTRACTOR, JOINTLY AND SEVERALLY, AGREE TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY AND ITS OFFICERS, AGENTS, VOLUNTEERS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS, AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, EXPERT FEES AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR DAMAGE TO ANY PROPERTY, OR FOR BREACH OF CONTRACT, ARISING OUT OF OR IN CONNECTION WITH THE PROJECT OR WORK PERFORMED UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH INJURIES, DEATH, DAMAGES OR BREACH ARE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF CITY, ANY OTHER PARTY INDEMNIFIED HEREUNDER, THE DEVELOPER, THE CONTRACTOR, OR ANY THIRD PARTY. 3.3 RELEASE. DEVELOPER AND CONTRACTOR, JOINTLY AND SEVERALLY, ASSUME FULL RESPONSIBILITY FOR THE PROJECT OR WORK TO BE PERFORMED HEREUNDER, AND RELEASE, RELINQUISH AND DISCHARGE CITY, ITS OFFICERS, AGENTS, VOLUNTEERS AND EMPLOYEES, FROM ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER, INCLUDING THE COST OF DEFENSE THEREFORE, FOR ANY INJURY TO OR DEATH OF ANY PERSONS AND ANY LOSS OF OR DAMAGE TO ANY PROPERTY THAT IS CAUSED BY, ALLEGED TO BE CAUSED BY, ARISING OUT OF, OR IN CONNECTION WITH, DEVELOPER'S OR CONTRACTOR’S PROJECT OR WORK TO BE PERFORMED HEREUNDER. THIS RELEASE SHALL APPLY WHETHER OR NOT SAID CLAIMS, DEMANDS, AND CAUSES OF ACTION ARE COVERED IN WHOLE OR IN PART BY INSURANCE AND REGARDLESS OF WHETHER OR NOT SAID CLAIMS, DEMANDS, AND CAUSES OF ACTION WERE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF CITY, ANY OTHER PARTY RELEASED HEREUNDER, DEVELOPER, CONTRACTOR, OR ANY THIRD PARTY. 3.4 Insurance. The Developer and Contractor shall procure and maintain, at their own sole cost and expense for the duration of this Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the Project or work to be performed by Developer or its contractors, subcontractors, agents, representatives, volunteers, or employees, and by Contractor or its subcontractors, agents, representatives, volunteers, or employees. Said insurance shall list College Station, its officers, agents, employees, and volunteers as Additional Insureds. See Exhibit “E” for required limits of liability insurance. Certificates of insurance Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 6 Rev. 6/15/2020 evidencing the required insurance coverages on the most current form approved by the Texas Department of Insurance shall be attached hereto as Exhibit “F”. 3.5 Survival. All provisions of this Article III, including, but not limited to, governmental immunity, indemnity, release, and insurance, survive termination or expiration of this Agreement. ARTICLE IV PROJECT AND CONSTRUCTION 4.1 Right to Inspect the Work. City may inspect the Project for compliance with the Approved Plans during construction. In the event that it is determined by City that any of the work or materials furnished is not in strict accordance with the Approved Plans, City may withhold funds until the nonconforming work conforms to the Approved Plans or terminate this Agreement at City’s election without any further liability. 4.2 Independent Contractor. Developer and Contractor shall be solely responsible for ensuring the selecting, supervising, and paying of its contractors and subcontractors and for complying with all applicable laws, including, but not limited to all requirements concerning workers compensation and construction retainage with respect to the Project. The Parties agree all employees, volunteers, personnel and materials furnished or used by Developer and its contractors and subcontractors, or Contractor and its subcontractors, in the Project will be the responsibility of Developer and Contractor and understand Developer and Contractor will not be deemed employees or agents of City for any purpose. Nothing in this Agreement will establish a joint venture between the Developer, Contractor, and the City. 4.3 Payment for materials and labor. Developer and Contractor shall be solely and exclusively responsible for compensating any of its contractors, subcontractors, employees, material men or suppliers of any type or nature whatsoever and insuring that no claims or liens of any type will be filed against any property owned by City arising out of or incidental to the performance of Developer or Contractor pursuant to this Agreement. In the event a statutory lien notice is sent to City, Developer shall, where no payment bond covers the work, upon written notice from the City, immediately obtain a bond at its expense and hold City harmless from any losses that may result from the filing or enforcement of any said lien notice. 4.4 Affidavit of bills paid. Prior to the issuance of a Letter of Completion of the Project, Developer shall provide City a notarized affidavit stating that all bills for labor, materials, and incidentals incurred have been paid in full, that any claims from manufacturers, material men, and subcontractors have been released, and that there are no claims pending of which Developer has been notified. Such affidavit shall be in a form as substantially set forth in Exhibit “G” which is attached hereto and incorporated by reference. 4.5 Requirements of Applicable rules remain. This Agreement does not alter, amend modify or replace any other requirements applicable to the Project that are contained in the Code of Ordinances of the City of College Station, Texas, Unified Development Ordinance of the City of College Station, or other applicable law. Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 7 Rev. 6/15/2020 4.6 Warranty: Upon issuance of a certificate of Final Completion, Developer warrants and will ensure that the Developer’s Contractor's warranty (or other warranty as acceptable by City) will pass through to the City and will warrant for a period of one (l) year (or longer as provided in Part d., below) (such period being referred to as the “Warranty Period”) as follows: a. That, through the Developer’s Contractor’s pass through warranty, all materials provided to the City under this Agreement shall be new unless otherwise approved in advance, in writing, by the City Engineer and that all work will be of good quality, free from faults and defects, and in conformance with this Agreement and recognized industry standards. b. All work not conforming to these requirements, including but not limited to unapproved substitutions, may be considered defective, and shall be repaired or replaced at Developer’s sole cost and expense. c. This warranty is in addition to any rights or warranties expressed or implied by law and in addition to any consumer protection claims arising from misrepresentations by the Developer. d. Where more than a one (l) year warranty is specified for individual products, work, or materials, the longer warranty shall govern. ARTICLE V GUARANTEE OF PERFORMANCE AND PAYMENT 5.1 Bonding Requirements of Developer. The Developer shall provide, or require its construction contractor(s) to provide, Performance Bonds in accordance with the requirements of Texas Local Government Code §212.073, or a Performance Bond for Subdivision Plat Bond that appropriately covers and protects the Project. The bonds shall be provided using the appropriate form attached in Exhibit “H” to ensure construction of the Project. For Projects exceeding fifty thousand dollars ($50,000) in total value, Developer will ensure its contractor performing the Project executes a payment bond to ensure payment to subcontractors and vendors. The Developer and the City shall be dual obligees on the performance bond if issued on behalf of Developer’s construction contractor(s). The City shall be the sole oblige on the bond(s) if the bonding requirements of this Section are satisfied with a Performance Bond for Subdivision Plat Bond. Bonds shall be on a City-approved form, be executed by a corporate surety according to Chapter 2253 of the Texas Government Code, and be for the full cost of Developer’s construction contract to which the Project relates. a. If bonds are to be provided by a Contractor, the Developer must provide the City a copy of the contractor’s payment and performance bond before work commences on the Project. If a Performance Bond for Subdivision Plat Bond is used, the Performance Bond for Subdivision Plat Bond and payment bond must be provided to the City before work commences on the Project. Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 8 Rev. 6/15/2020 5.2 Bonding Requirements of City. If the Project is located within the extraterritorial jurisdiction of the City, the City will ensure that the prime contractor of the Project executes to the City a performance bond and a payment bond as required by Chapter 2253 of the Texas Government Code. ARTICLE VI GENERAL PROVISIONS 6.1 Amendments. No amendment to this Agreement will be effective and binding unless and until it is reduced to writing and signed by duly authorized representatives of both Parties. 6.2 Choice of Law and Venue. This Agreement has been made under and shall be governed by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazos County, Texas, United States of America. 6.3 Authority to enter into Agreement. Each party represents that it has the full power and authority to enter into and perform this Agreement. Specifically, the person executing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The person executing this Agreement on behalf of Developer represents that he or she is authorized to sign on behalf of Developer and agrees to provide proof of such authorization to the City upon request. The person executing this Agreement on behalf of Contractor represents that he or she is authorized to sign on behalf of Contractor and agrees to provide proof of such authorization to the City upon request. 6.4 Agreement read. The Parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 6.5 Notice. Any notice sent under this Agreement, except as otherwise expressly required herein, shall be hand delivered, written and mailed, or sent by electronic or facsimile transmission confirmed by mailing written confirmation at substantially the same time as such electronic or facsimile transmission, or personally delivered to an officer of the receiving party at the following addresses: To Developer: To City: _______________________________ City of College Station _______________________________ City Engineer _______________________________ P.O. Box 9960 _______________________________ College Station, TX 77842 _______________________________ With copies to: To Contractor: City Attorney and City Manager _______________________________ P.O. Box 9960 _______________________________ College Station, TX 77842 _______________________________ _______________________________ _______________________________ Bryan Traditions L.P. 4250 Traditions Drive Bryan, TX 77807 Brazos Paving, Inc. Billy Prewitt P.O. Box 714 Bryan, TX 77806 Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 9 Rev. 6/15/2020 Each party may change its address by written notice in accordance with this section. Any communication addressed and mailed in accordance with this section shall be deemed to be given when so mailed, any notice so sent by electronic or facsimile transmission shall be deemed to be given when receipt of such transmission is acknowledged, and any communication so delivered in person shall be deemed to be given when receipted for by, or actually received by, the party. 6.6 Term. This Agreement will terminate after expiration of the warranty period, subject to survival of other provisions, as indicated. The Agreement term may be extended by mutual written agreement of the Parties. 6.7 Termination. This Agreement and the performance of the Work may be terminated at any time in whole or, from time to time, in part, by the City for its convenience. a. Any such termination shall be effected by delivery to the Developer and Contractor of a written notice (notice of termination) specifying the extent to which performance of the Work is terminated, and the date upon which termination becomes effective. b. In the event of termination for convenience by City, the Developer and Contractor shall only be paid the reasonable value of the Work performed prior to the effective date of the termination notice and shall be further subject to any claim the City may have against the Developer and Contractor under other provisions of this Agreement or as a matter of law. In the event of termination for convenience by City, Developer and Contractor waive and release any claim for lost profits or damages. c. In the event of termination for convenience by City, the Developer and Contractor may continue construction on the current as-approved construction plans issued with the development permit, with the removal of the oversizing requirement from the as-approved construction plans. 6.8 Assignment. This Agreement and the rights and obligations contained herein may not be assigned by Developer or Contractor without the prior written approval of the City. 6.9 Default. In the event of a breach of this Agreement by Developer or Contractor, City may terminate this Agreement and exercise any and all legal remedies. 6.10 Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions, and in lieu of each provision that is invalid, illegal or unenforceable, there shall be added a new provision to this Agreement as similar in terms to such invalid, illegal, or unenforceable provision as may be possible and yet be valid, legal and enforceable, by means of good faith negotiation by the Parties to this Agreement or by reform by a court of competent jurisdiction. Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 10 Rev. 6/15/2020 6.11 Duplicate Originals. The parties may execute this Agreement in duplicate originals, each of equal dignity. 6.12 Recitals. The "WHEREAS" clauses set forth above are expressly incorporated in and form part of the terms of this Agreement. 6.13 Captions. The captions contained in this Agreement are for convenience of reference only and in no way limit or enlarge the terms and conditions of this Agreement. 6.14 Singular and Plural. All references to the plural herein shall also mean the singular and to the singular shall also mean the plural unless the context otherwise requires. 6.15 Ambiguity. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. 6.16 Anti-Boycott Verification. As required by Chapter 2270, Government Code, Developer and Contractor hereby verifies that Developer and Contractor do not boycott Israel and will not boycott Israel through the term of this Agreement. For purposes of this verification, “boycott Israel” means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes 6.17 No Third Party Beneficiaries. No person or entity shall be a third party beneficiary to this Agreement or shall have any right or cause of action hereunder. 6.18 No Partnership. This Agreement and the transactions and performances contemplated hereby shall not create any manner of partnership, joint venture or similar relationship between the Parties. 6.19 Exhibits. All exhibits to this Agreement are incorporated and made part of this Agreement for all purposes. List of Exhibits: A. Legal Description of the Property B. Route Survey and Off-Site Easements Instruments (if applicable) C. Description of the Project D. Engineer’s stamped and sealed estimate of costs and breakdown for Project and Participation Costs E. Insurance Requirements F. Certificates of Insurance G. Affidavit of All Bills Paid Form H. Performance Bond for Subdivision Plat (if bond provided by Developer) I. Payment Bond (Dual Obligee Form) Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 11 Rev. 6/15/2020 (Signature Page Immediately Follows) Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 12 Rev. 6/15/2020 _______________________________ CITY OF COLLEGE STATION [DEVELOPER] BY: ___________________________ BY: _________________________ City Manager Printed Name:___________________ Date:______________ Title:__________________________ APPROVED Date:______________ _____________________________ City Attorney Date:______________ _______________________________ [CONTRACTOR] (if applicable) _____________________________ Assistant City Manager/CFO BY: ___________________________ Date:______________ Printed Name:___________________ Title:__________________________ Date:______________ Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 13 Rev. 6/15/2020 Exhibit A Legal Description of the Property Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 14 Rev. 6/15/2020 Exhibit B Route Survey and Off-Site Easement Instruments (if applicable) Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 15 Rev. 6/15/2020 Exhibit C Description of the Project G!.G!.G!.G!.G!.G!.G!.G!.G!.G!.G!.G!.G!.!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!"5!(z!(!(z!(!(z!(!(z!(z!(!(&Éz!(&É!(!(!(z!(!(&Éz!(!(!(z!(!(z!(!(!(!(z!(!(!(!(z!(z!(z!(z!(z!(z!(!(z&Éz!(!(z&É!(!(!(z!(Proposed 18" Water LineTraditions Phase 24-2518"Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot: DS1Lot:17Lot: 21Lot: 62Lot: 32Lot: 19Lot: 61Lot: 17.2Lot: 19.1Lot: 14Lot: 11Lot: 2Lot: 1Lot: DS1Lot: CA-1Lot: 1Lot: 1RLot: CA-1RLot: PLDLot: 1Lot: CA-1HSC PWRAYMOND STOTZER FRONTAGEBURGESS LNBIOMEDICAL WYSTRADITIONSDRRAYMOND STOTZER PWON RAMP RAYMOND STOTZERRIVERSIDE PWOFF RAMP RIVERSIDE PWRIVERSIDEPWTORAYMONDSTOTZERPWRAYMONDSTOTZERTORIVERSIDEPW12"12"8"8"6"12"6"6"8"6 "12"6"6"6"8"12"12"6"8"12"18"12"12"12"12"18"12"12"12"12"18"18"12"12"12"12"18"18"12"18"12"18"12"1 2 "18" Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 16 Rev. 6/15/2020 Exhibit D Engineer’s Stamped and Sealed Estimate of Costs and Breakdown for Project and Participation Costs Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 17 Rev. 6/15/2020 Exhibit E Insurance Requirements Throughout the term of this Agreement, Developer, Contractor, and Developer’s Contractors (the Developer, Contractor, and Developer’s Contractors are all collectively referred to as “Contractor”), must comply with the following: I. Standard Insurance Policies Required: A. Commercial General Liability B. Business Automobile Liability C. Workers' Compensation II. General Requirements Applicable to All Policies: A. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent B. Certificates of Insurance and endorsements shall be furnished on the most current State of Texas Department of Insurance-approved forms to the City’s Representative at the time of execution of this Agreement; shall be attached to this Agreement as Exhibit “F”; and shall be approved by the City before work begins C. Contractor shall be responsible for all deductibles on any policies obtained in compliance with this Agreement. Deductibles shall be listed on the Certificate of Insurance and are acceptable on a per-occurrence basis only D. The City will accept only Insurance Carriers licensed and authorized to do business in the State of Texas E. The City will not accept “claims made” policies F. Coverage shall not be suspended, canceled, non-renewed or reduced in limits of liability before thirty (30) days written notice has been given to the City III. Commercial General Liability A. General Liability insurance shall be written by a carrier rated “A:VIII” or better under the current A. M. Best Key Rating Guide. B. Policies shall contain an endorsement naming the City as Additional Insured and further providing “primary and non-contributory” language with regard to self- insurance or any insurance the City may have or obtain C. Limits of liability must be equal to or greater than $1,000,000.00 per occurrence for bodily injury and property damage, with an annual aggregate limit of $2,000,000.00. Limits shall be endorsed to be per project. D. No coverage shall be excluded from the standard policy without notification of individual exclusions being submitted for the City’s review and acceptance E. The coverage shall include, but not be limited to the following: premises/operations with separate aggregate; independent contracts; products/completed operations; contractual liability (insuring the indemnity provided herein) Host Liquor Liability, Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 18 Rev. 6/15/2020 and Personal & Advertising Liability. IV. Business Automobile Liability A. Business Automobile Liability insurance shall be written by a carrier rated “A:VIII” or better rating under the current A. M. Best Key Rating Guide. B. Policies shall contain an endorsement naming the City as Additional Insured and further providing “primary and non-contributory” language with regard to self- insurance or any insurance the City may have or obtain C. Combined Single Limit of Liability not less than $1,000,000 per occurrence for bodily injury and property damage. D. The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of the liability section in Item 2 of the declarations page E. The coverage shall include any autos, owned autos, leased or rented autos, non- owned autos, and hired autos. V. Workers’ Compensation Insurance A. Pursuant to the requirements set forth in Title 28, Section 110.110 of the Texas Administrative Code, all employees of the Contractor, all employees of any and all subcontractors, and all other persons providing services on the Project must be covered by a Workers’ Compensation policy, either directly through their employer’s policy (the Contractor’s or subcontractor’s policy) or through an executed coverage agreement on an approved Texas Department of Insurance Division of Workers Compensation (DWC) form. Accordingly, if a subcontractor does not have his or her own policy and a coverage agreement is used, contractors and subcontractors must use that portion of the form whereby the hiring contractor agrees to provide coverage to the Subcontractors’ employees. The portion of the form that would otherwise allow them not to provide coverage for the employees of an independent contractor may not be used. B. Workers compensation insurance shall include the following terms: 1. Employer’s Liability minimum limits of liability not less than $500,000 for each accident/each disease/each employee are required 2. “Texas Waiver of Our Right to Recover From Others Endorsement, WC 42 03 04” shall be included in this policy 3. TEXAS must appear in Item 3A of the Workers’ Compensation coverage or Item 3C must contain the following: “All States except those listed in Item 3A and the States of NV, ND, OH, WA, WV, and WY” C. Pursuant to the explicit terms of Title 28, Section 110.110(c) (7) of the Texas Administrative Code, the bid specifications (if applicable), and this Agreement, all subcontracts on this Project must include the following terms Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 19 Rev. 6/15/2020 and conditions, in the following language, without any additional words or changes, except those required to accommodate the specific document in which they are contained or to impose stricter standards of documentation: “A. Definitions: Certificate of coverage (“certificate”) – An original certificate of insurance, a certificate of authority to self-insure issued by the Division of Workers Compensation, or a coverage agreement (DWC-81, DWC-83, or DWC-84), showing statutory workers’ compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the Contractor’s/person’s work on the project has been completed and accepted by the governmental entity. Persons providing services on the project (“subcontractors” in § 406.096 [of the Texas Labor Code]) - includes all persons or entities performing all or part of the services the Contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the Contractor and regardless of whether that person has employees. This includes, without limitation, independent Contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. “Services” include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. “Services” does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The Contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, that meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the Contractor’s current certificate of coverage ends during the duration of the project, the Contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The Contractor shall obtain from each person providing services on a project, and provide to the governmental entity: Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 20 Rev. 6/15/2020 (1) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and (2) no later than seven calendar days after receipt by the Contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The Contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The Contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 calendar days after the Contractor knew or should have known, or any change that materially affects the provision of coverage of any person providing services on the project. H. The Contractor shall post on each project site a notice, in the text, form and manner prescribed by the Division of Workers Compensation, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The Contractor shall contractually require each person with whom it contracts to provide services on a project, to: (1) provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, that meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; (2) provide to the Contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; (3) provide the Contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (4) obtain from each other person with whom it contracts, and provide to the Contractor: Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 21 Rev. 6/15/2020 (a) A certificate of coverage, prior to the other person beginning work on the project; and (b) A new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (5) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (6) notify the governmental entity in writing by certified mail or personal delivery, within 10 calendar days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and (7) Contractually require each person with whom it contracts to perform as required by paragraphs (a) - (g), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract, or providing, or causing to be provided a certificate of coverage, the Contractor is representing to the governmental entity that all employees of the Contractor who will provide services on the project will be covered by workers’ compensation coverage for the duration of the project; that the coverage will be based on proper reporting of classification codes and payroll amounts; and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the Commission’s Division of Self-Insurance Regulation. Providing false or misleading information may subject the Contractor to administrative penalties, criminal penalties, civil penal- ties, or other civil actions. K. The Contractor’s failure to comply with any of these provisions is a breach of contract by the Contractor that entitles the governmental entity to declare the contract void if the Contractor does not remedy the breach within ten calendar days after receipt of notice of breach from the governmental entity.” Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 22 Rev. 6/15/2020 Exhibit F Certificates of Insurance ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY) (MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person) $ OWNED SCHEDULED BODILY INJURY (Per accident) $AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD BRAZO03 OP ID: PC 06/12/2020 Brenda Newman J&H Insurance Services, Inc. 510 N. Valley Mills Dr., #701 Waco, TX 76710 Randy Behringer 254-741-2889 254-772-6864 brendan@jandhins.com United Fire & Casualty Co. Texas Mutual Insurance Company Brazos Paving, Inc. BPI Materials, LLC P. O. Box 714 Bryan, TX 77806 A X 1,000,000 X 85315640 11/01/2019 11/01/2020 100,000 5,000 1,000,000 2,000,000 X 2,000,000 1,000,000 1,000,000A X 85315640 11/01/2019 11/01/2020 XX 5,000,000A 85315640 11/01/2019 11/01/2020 5,000,000 XB 0001207539 11/01/2019 11/01/2020 1,000,000 1,000,000 1,000,000 A 85315640 11/01/2019 11/01/2020 LEASED/ 600,000 RENTED EQ Project: Traditions Phase 24-25 Per written contract, the Certificate Holder and Bryan/Traditions, LP are included as Additional Insured. Primary and Non-Contributory. 30 Days Notice of Cancellation. Waiver of Subrogation applies. CITYCO1 City of College Station 1101 Texas Avenue College Station, TX 77840 254-741-2889 13021 22945 Emp Ben. EQUIPMENT FLOATER NOTEPAD PAGE INSURED'S NAME Date 2 OP ID: PC PER WRITTEN CONTRACT ONLY, the following Blanket Coverage Endorsements apply to Brazos Paving, Inc policies: CG 20 10 04 13 Additional Insured - Owners, Lessees or Contractors CG 20 37 04 13 Additional Insured - Completed Operations CG 20 38 04 13 A v dditional Insured - In A Construction Project CG 20 01 04 13 Primary & Non Contributory-Other Insurance Conditions CG 72 80 07 17 Limited Extended Ultra Liability Plus (Includes GL WOS) CA 71 09 01 17 Business Auto Ultra Endorsement (Includes Auto AI & WOS) CA 73 34 09 15 Business Auto - Primary & Non Contributory WC 42 03 04 B Texas Waiver of Our Rights to Recover from Others (WC WOS) 30 Days Notice of Cancellation ***Additional Insured and Waiver of Subrogation will apply, PER WRITTEN CONTRACT. ***UMBRELLA policy will follow all listed Policies and Endorsements BRAZO03 06/12/2020Brazos Paving, Inc. Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 23 Rev. 6/15/2020 Exhibit G Affidavit of All Bills Paid Form Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 24 Rev. 6/15/2020 THE STATE OF TEXAS § AFFIDAVIT OF BILLS PAID § COUNTY OF BRAZOS § FOR PARTICIPATION AGREEMENT Before me, the undersigned authority, _____________________________ (“Affiant”), _________________________ (Title), of ___________________________ (“Developer”), personally appeared being duly sworn, deposed, and states the following: I am over 18 years of age, of sound mind, capable of making this affidavit, and personally acquainted with the facts stated in it, which facts are true and correct. The Developer pursuant to the Participation Agreement with the City of College Station, dated ____________, 20__, has caused the Developer or the Developer’s contractors to furnishes labor and materials to construct improvements for the _________________________ (description of project) on the real property known as ___________________________, (address or legal description) more particularly described in the Participation Agreement as the “Project”. To the extent Developer constructed or contracted for the construction of such improvements, the Developer or the Developer’s contractors have paid each of its sub-contractors, laborers and material men in full for all labor or materials provided to Developer on the Project. To the best of Affiant’s knowledge, Developer or Developer’s contractors have not received notice of any claims pending against the Project in connection with the Project. Executed this ________ day of _____________________, 20__. AFFIANT: Signature: ________________________________ Printed Name: _____________________________ SUBSCRIBED AND SWORN TO before me on this _____ day of ___________, 20__. ______________________________ Notary Public, State of Texas Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 25 Rev. 6/15/2020 Exhibit H Subdivision Plat Bond (To be inserted upon execution) Oversized Participation Agreement – Construct, Reconstruct, or Oversize Infrastructure 26 Rev. 6/15/2020 Exhibit I Payment Bond (Dual Obligee Form)