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HomeMy WebLinkAbout2013-3484 - Ordinance - 02/28/2013• ORDINANCE NO. 2o/3 -3v4 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, APPROVING A PARTICIPATION AGREEMENT BY AND BETWEEN THE CITY AND DRI/CA COLLEGE STATION, LLC AND LINBECK GROUP, LLC FOR THE DEVELOPMENT OF CHURCH AVENUE ROADWAY IMPROVEMENTS PROJECT AND AUTHORIZING THE EXPENDITURE OF FUNDS. WHEREAS, DRI/CA College Station, LLC is the developer and Linbeck Group, LLC is the developer's contractor developing the Church Avenue Roadway Improvements Project; 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: the Church Avenue Roadway Improvements 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 DRI/CA College Station, LLC and Linbeck Group, LLC for the construction of the Church Avenue Roadway Improvements 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 Participation Agreement with DRI/CA College Station, LLC and Linbeck Group, LLC obligating the CITY to pay a maximum of $111,095.00 out of a total estimated amount of $533,745.00 for the labor, materials and equipment required for the improvements related to the Church Avenue Roadway Improvements Project. PART 3: That the funding for this Participation Agreement shall be as budgeted from the Street Oversized Participation Fund, in the amount of $111,095.00. PART 4: That this ordinance shall take effect immediately from and after its passage. City Participation Agreement Page 2 with DR /CA and Linbeck PASSED, ADOPTED and APPROVED this ,2 day of ATTEST: City Secret APPROVED: City Attorney 9.4 APPROVED: , 2013. Mayor CITY OF COLLEGE STATION PARTICIPATION AGREEMENT WITH DRI/CA COLLEGE STATION, LLC AND LINBECK GROUP, LLC This Agreement is entered into by and between the City of College Station, a Texas home rule municipal corporation (hereinafter "City"), and DRI/CA COLLEGE STATION, LLC, a Delaware Limited Liability Company, (hereinafter "Developer") and LINBECK GROUP, LLC, a Texas Limited Liability Company, hereinafter (Developer's Contractor). WHEREAS, Developer is developing property within the City of College Station, more particularly described as Lot 1, Block 1, of the 717 Subdivision in College Station, Brazos County, Texas (hereinafter "Property") a description of which is attached hereto as Exhibit A; and WHEREAS, Developer is required to construct certain public infrastructure, such as roadways, utilities, sidewalks, drainage facilities, water and sewer facilities, etc. that relate to Developer's proposed development (the "Area 1 Work") a description of which is attached hereto as Exhibit B; and WHEREAS, City is required or desirous of constructing certain public infrastructure affecting Developer's development (the "Area 2 Work") a description of which is attached hereto as Exhibit C; and WHEREAS, because of this and in order to comply with City's overall development scheme both Developer and City agree that it is in the best interests of the public to jointly construct certain the Area 1 Work and the Area 2 Work; and WHEREAS, the City Engineer has reviewed the data, reports and analysis, including those provided by Developer's engineers, and determined that such public improvement qualifies for joint City- Developer participation; and WHEREAS, the City and the Developer agree as to the nature and proportion of joint participation as further recited herein and as may be required in accordance with Section 212.071of the Texas Local Government Code, et seq and Chapter 252 of the Texas Local Government Code; and WHEREAS, the Developer and the Developer's Contractor have entered into a separate agreement of even date herewith setting forth in detail their respective rights, obligations and liabilities to each other in connection with the Developer's Contractor's construction of the work contemplated to be performed under this Participation Agreement ;and NOW, THEREFORE, for and in consideration of the recitations above and the promises and covenants herein expressed, the parties hereby agree as follows: Contract No. 13- 2W I. DEFINITIONS 1.1 Approved Plans means the plans and specifications that meet the requirements of this Participation Agreement, 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. 1.3 Developer means DRI/CA COLLEGE STATION, LLC, a Delaware Limited Liability Company with its principal office located at 161 North Clark Street, Suite 4900, Chicago, IL 60601. 1.4 Developer's Contractor means LINBECK GROUP, LLC, a Texas Limited Liability Company with its principle office located at 3900 Essex, Suite 1200, Houston, TX 77027. 1.4 Effective Date. The date on which this Agreement is signed by the last party whose signing makes the Agreement fully executed. 1.5 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 materialmen and subcontractors have been made, all documentation, and all closeout documents have been executed and approved by the Developer and Developer's Contractor as required, the Letter 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 and Developer's Contractor has fully performed any other requirements contained herein. 1.6 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 City of College Station Unified Development Ordinance. 1.7 Property means that one certain tract of land Lot 1, Block 1, of the 717 Subdivision in College Station, Brazos County and as further described in Exhibit A attached hereto and incorporated herein made a part hereof. 1.8 Project means the design and construction of the Area 1 Work and the Area 2 Work more generally described as Church Avenue roadway improvements including sidewalks, crosswalks, storm sewer, trees, irrigation, driveway, signage, and striping as detailed in Exhibit B and Exhibit C. City's Participation Agreement with 2 DRI/CA and Linbeck II. CITY COST PARTICIATION AND LAND ACQUISITION 2.1 Project Cost and Participation. The Developer and the City have agreed to share the estimated and actual costs of construction of the Project as provided herein. The not to exceed price of the Project is $533,745.00 as set forth in Exhibit D, which is attached hereto and incorporated herein by reference (the "Not To Exceed Price"). The Not To Exceed Price is subject to adjustment as set forth in Paragraph 2.7. The Developer shall pay $422,650.00, which amount is allocable to the Area 1 Work and subject to adjustment as set forth herein, and the City shall pay $111,095.00 or 21% of the cost the Project (the "Participation Amount"), which amount is allocable to the Area 2 Work and subject to adjustment as set forth herein, toward the Not To Exceed Price of the Project. The City's Participation Amount can only exceed $111,095.00 or 21% of the cost the Project with subsequent City Council approval and authorization. The City and Developer's payment obligations with respect to increases in the Not To Exceed Price shall be as set forth in Paragraph 2.7. 2.2 City's Acquisition of Land for the Project. The City will obtain dedication of the land relating to the Project for the Area 2 Work either by plat or by deed. 2.3 Automatic Termination: Notwithstanding any other terms of this Agreement, if the City does not obtain the land dedication for the Project within 180 days after the execution of this Agreement, then this Agreement will automatically terminate and the City will not liable for any costs to the Developer or Developer's Contractor. 2.4 Public Bidding. The total estimated cost of the Project is as set forth in Exhibit D. The City's cost participation will not exceed 30% of the total cost of the Project. Since the City's cost participation is 30% or less of the total cost of the Project and is located within the boundaries of the City, the Project need not be competitively bid. 2.5 Scope and Cost of Project. Developer's engineer's detailed scope and cost estimate of the Project is attached hereto and incorporated herein as Exhibit D. 2.6 Application for Initial and Final Payment. (1) Initial Payment Application for Initial 50% Payment by the Developer's Contractor to the City for payment to the Developer's Contractor pursuant to the terms of this Agreement must include the following in a form acceptable to City: (a) Final Completion of the Project in accordance with the Approved Plans; (b) Issuance of the Letter of Completion relating to the Project; and (c) Certification from Developer and Developer's Contractor stating that to the best of their knowledge, information and belief, the work is in compliance with all applicable City Codes, Ordinances and standards relating to the Project, the Property and its subdivision and development; and City's Participation Agreement with 3 DRI/CA and Linbeck (2) Final Payment Application for Final Payment by the Developer's Contractor to the City for payment to the Developer's Contractor pursuant to the terms of this Agreement must include the following in a form acceptable to City: (a) Fully executed Affidavit of All Bills Paid, the form of which is attached hereto as Exhibit E. (b) A breakdown of actual costs of the Project with supporting documentation, including all payment receipts. 2.7 Payment. (1) Developer's Contractor shall submit the written applications for City to pay the Participation Amounts within thirty (30) days after the above requirements are met according to the Project. Applications may not be submitted prior to Final Completion. City will pay Developer's Contractor the Participation Amount in one payment within thirty (30) days after receipt of a complete written application for participation payment from Developer's Contractor. (2) Estimated Cost / Actual Cost. In the event of a decrease in the Not To Exceed Price, the parties' estimated participation costs shall be adjusted according to the percentage of participation specified in this Paragraph 2. The actual participation cost shall be determined based upon the actual cost of the Project. All costs in excess of the Not To Exceed Price, as may be adjusted, shall be borne by the Developer's Contractor. 2.8 Reports, books and other records. Developer and Developer's Contractor shall make its books and other records related to the Project available for inspection by City. Developer and Developer's Contractor shall submit to City any and all information or reports requested to verify the expenditures submitted for City participation eligibility including, but not limited to bid documents, payment applications, including any supporting information, cancelled 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 Exhibit D of this Agreement. The submission of these reports and information shall be the responsibility of Developer and Developer's Contractor and shall be certified by Developer's or Developer Contractor's Licensed Professional Engineer at Developer's expense and signed by an authorized official of the entity. 2.9 Changes due to unforeseen conditions. (1) If concealed or unknown physical conditions are encountered by Developer's Contractor in the performance of the Area 2 Work that differ materially from those indicated in the Approved Plans, the Not To Exceed Price shall be adjusted by the amount determined by the City and the responsibility for such cost increase shall be borne 100% by the City. The City's Participation Amount can only exceed $111,095.00 or 21% of the cost the Project with subsequent City Council City's Participation Agreement with 4 DRI/CA and Linbeck approval and authorization. The Developer and Developer's Contractor would not be responsible for any additional work or costs in the performance of Area 2 related to concealed or unknown physical conditions that the City does participate in under this Agreement. (2) If concealed or unknown physical conditions are encountered by Developer's Contractor in the performance of the Area 1 Work that differ materially from those indicated in the Approved Plans, the Not To Exceed Price shall be adjusted by the amount determined by the Developer and the responsibility for such cost increase shall be borne 100% by the Developer. (3) If concealed or unknown physical conditions are encountered by Developer's Contractor that affects the performance of both the Area 2 Work and the Area 1 Work that differ materially from those indicated in the Approved Plans, the Not To Exceed Price shall be adjusted by the amount determined jointly by the City and the Developer and the responsibility for such cost increase shall be borne by the Developer and the City in accordance with Paragraph 2.7. The City's Participation Amount can only exceed $111,095.00 or 21% of the cost the Project with subsequent City Council approval and authorization. The Developer and Developer's Contractor would not be responsible for any additional work or costs in the performance of Area 2 related to concealed or unknown physical conditions that the City does participate in under this Agreement. III. GOVERNMENTAL IMMUNITY, INDEMNIFICATION AND RELEASE, AND INSURANCE 3.1 City is a political subdivision of the state and enjoys governmental immunity. By entering into this Agreement, City does not consent to suit, waive its governmental immunity, or the limitations as to damages under the Texas Tort Claims Act. 3.2 Developer and Developer's Contractor agree to and shall indemnify, hold harmless, and defend City and its officers, agents, employees and volunteers 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 work done by Developer or Developer's Contractor under this Agreement, regardless of whether such injuries, death, damages or breach are caused in whole or in part by the negligence of the Developer or Developer's Contractor. 3.3 Developer and Developer's Contractor shall indemnify and hold City harmless from any claims of suppliers or subcontractors of Developer or Developer's Contractor for improvements constructed or caused to be constructed by Developer or Developer's Contractor. Developer and Developer's Contractor shall indemnify and hold City harmless City's Participation Agreement with 5 DRI/CA and Linbeck from any and all injuries to or claims of adjacent property developers resulting from or relating to their performance under this Agreement. 3.4 Developer and Developer's Contractor assume full responsibility for the work to be performed hereunder, and releases, relinquishes and discharges City, its officers, agents, employees and volunteers, 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 Developer's Contractor's work to be performed hereunder. This release shall apply whether or not said claims, demands, and causes or 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 the Developer or Developer's Contractor. 3.5 Insurance: The Developer and Developer's Contractor shall procure and maintain, at their 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 performance of the work hereunder by Developer and Developer's Contractor, their agents, representatives, volunteers, employees, or subcontractors. Said insurance shall list College Station, its officers, agents, employees, and volunteers as Additional Insureds. See Exhibit F for required limits of liability insurance. Certificates of insurance evidencing the required insurance coverages on the most current form approved by the Texas Department of Insurance, shall be attached hereto as Exhibit G. IV. PROJECT AND CONSTRUCTION 4.1 Right to Inspect the Work. City may inspect the improvements 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. 4.2 Independent Contractor. Developer's Contractor shall be solely responsible for selecting, supervising, and paying its subcontractors and for complying with all applicable laws, including but not limited to all requirements concerning workers compensation and construction retainage. The parties to this Agreement agree all employees, volunteers, personnel and materials furnished or used by Developer in the installation of the specified improvements shall be the responsibility of Developer or Developer's Contractor and understands that Developer and Developer's Contractor shall not be deemed employees or agents of City for any purpose. 4.3 Payment for materials and labor. Provided that the City remits the Participation Amount to Developer's Contractor as set forth in Paragraph 2.7, Developer or Developer's Contractor shall be solely and exclusively responsible for compensating any of Developer Contractor's employees, subcontractors, materialmen 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 any service performed pursuant City's Participation Agreement with 6 DRI/CA and Linbeck to this Agreement. Provided that the City remits the Participation Amount, then in the event a statutory lien notice is sent to City, Developer or Developer's Contractor 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 the Final Payment Developer's Contractor 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, materialmen, and subcontractors have been released, and that there are no claims pending of which Developer or Developer's Contractor has been notified. Such affidavit shall be in a form as substantially set forth in Exhibit E 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 contained in the College Station Code of Ordinances, Unified Development Code, or any other applicable law. V. GUARANTEE OF PERFORMANCE AND PAYMENT 5.1 Bonding Requirements. The City's participation is 30% or less of the total value of the Project, accordingly, Developer shall execute a performance bond to ensure construction of the Project. Developer's Contractor will execute a payment bond to ensure payment to subcontractors, if any. The bonds must be executed by a corporate surety in accordance with Chapter 2253 of the Texas Government Code. The bonds shall be in the total amount of the Not To Exceed Price as approved by City. The Bond Forms are attached in Exhibit H. VI. GENERAL PROVISIONS 6.1 Amendments. No amendment to this Agreement shall 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. 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 and Developer's Contractor represents that he or she is authorized to sign on behalf of Developer and Developer's 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. City's Participation Agreement with 7 DRI/CA and Linbeck 6.5 Notice. Any notice sent under this Agreement (except as otherwise expressly required) 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: DRI/CA College Station, LLC Attn: Brad Moeller 161 N. Clark, Suite 4900 Chicago, Illinois 60601 Linbeck Group, LLC Attn: Bryan Tufts, Project Manager 3900 Essex Lane, Suite1200 Houston, TX 77227-2500 City of College Station City Engineer P.O. Box 9960 College Station, TX 77842 With copies to: City Attorney and City Manager PO Box 9960 College Station, TX 77842 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 Assignment. This Agreement and the rights and obligations contained herein may not be assigned by Developer or Developer's Contractor without the prior written approval of the City. 6.7 Default. In the event of a breach of this Agreement by Developer, City may terminate this Agreement and exercise any and all legal remedies available to it. List of Exhibits: A. B. C. D. E. F. G. H. A description of the Property A description of the Area 1 Work A description of the Area 2 Work Scope and cost estimate of the Project Affidavit of All Bills Paid form Insurance Requirements Certificates of Insurance Bond Forms City's Participation Agreement with 8 DRI/CA and Linbeck DRUCA COLLEGE STATION, LLC DEV BY: P Title:A khb►'l 5111 /Q� Date: 1 J Lto / 1 3 J CITY OF COLLEGE STATION ATTEST: City Secret Date: 3—/ tt— /3 2-Y1 ce-tit., LINBECK GROUP, LLC APPROVED: , DEVELOPER'S COTRACTOR BY:xi• Printed Name: R o tsei -r 5. VI t c I&T Title: Sc7 , VP City Manager' Date: 3-41—i3 c. City Attorney Date: 0-1-) -0/ 13 Date: 0 Z $' Exe ' t' ;7 ir. Business Services Dat 3 - % - / 3 City's Participation Agreement with 9 DRI/CA and Linbeck Exhibit A Description of the Property City's Participation Agreement with 10 DRI/CA and Linbeck UNIVERSITY DRIVE 717 CHURCH DEVELOPMENT 28 b 4 THE STACK PAVER BANDS INTERSECTION (TYP.) CDNSTRUCT`CURBS y 10 I I CURBtXIST. 10' S 1— IDEWA EE WE K W/ FUTURE BUILDING (TBD) DRIVE AND S DEWALK/TREE D SIGN ONLY, C NSTRUCTION BY 0 ERS �qY I li 1 C1 1 1 O ❑�Kimley-Hom - 1 and Associates, Inc. 2600 PROJECT 6 02/13 SCALE AS EP BY AY Bi JCR CHURCH AVENUE IMPROVEMENTS EXHIBIT A SNEE1 NUMBER Exhibit B Description of Area 1 Work City's Participation Agreement with 11 DRI/CA and Linbeck UNIVERSITY DRIVE 1 717 CHURCH DEVELOPMENT S 0 28' THE STACK ! t LI1: PAVER BANDS INTERSECTION (TYP.) I I IXIST. CURB 10' SIDEWA_K W/ 1—TREE WE_L FUTURE BUILDING f h DRIVE AND SIDEWALK/TREE D SIGN ONLY, C NSTRUCTION BY 0 HERS n q • =n Kimley-Hom and Associates, Inc. 'RYAS Rft.11ERfn 111... 11-11701 2000 SOWN -TEXAS AWN.. SUM .1 BRYAN. 11, 7.02 qu PROJEC DAIS DY/13 scull AS ID BR. R B. DH Br JCH CHURCH AVENUE IMPROVEMENTS EXHIBIT "B" SHEET NUMBER Exhibit C Description of Area 2 Work City's Participation Agreement with 12 DRI/CA and Linbeck UNIVERSITY DRIVE v 11 717 CHURCH DEVELOPMENT ___----,--, (----- 1 1 1 1 1-I 1 1-11 J THE STACK PAVER BANDS INTERSECTION (TYP.) I {XIST. CURB 10' EIDEWA_K W/ 1—TREE WE _L FUTUIE WOW (TBD) DRIVE AND S DEWALK/TREE D SIGN ONLY, C NSTRUCTION BY 0 ERS P F U T u I II -T U r i 0 ❑� KimleyHom — and Associates, Inc. CIYAS REGISTER,' ENGINEERING 979-77,451., DATE 02/13 scu[ AS ED X BY FCI,FD er JC CHURCH AVENUE IMPROVEMENTS EXHIBIT C SHEET NUMBER Exhibit D Scope and Cost Estimate of the Project City's Participation Agreement with DRI/CA and Linbeck The City of College Station Engineer prepared the following scope list and cost estimate: Work Item Cost Roadway 1. Demo existing paving 2. Design of road realignment 3. 6" Lime stabilized subgrade 4. Establish finish grade 5. 7" concrete paving (includes apron at University) 6. Thermo pavement striping 7. Layout and construction staking 8. Cross walks w/brick pavers (4 crosswalks for total of 160 lf) 9. Stop signs (3 total) 10. Added drain inlet to existing storm sewer pipe 11. Handicap ramp at eastern intersection of Church and University 12. Demolition of existing paving/Curb and Gutter 13. Replace Taco Bell driveway entrance 14. Additional brick paver sidewalk (2101f) 15. Two new handicap ramps 16. Tree wells (1 each) 17. New trees (1 each) 18. Backfill behind sidewalk 19. Sodding 20. Additional drain inlet 21. Inlet reconstruction for new storm sewer route 22. Remove existing storm sewer and replace with 100 if of 24" HDPE existing storm for reroute at parking Subtotal Roadway $301,095 Initial Storm Sewer 1. 15" RCP installation and backfill (-15 If) 2. 36" RCP installation and backfill (-2101f) 3. 42" RCP installation and backfill (-2101f) 4. Approximately 6 storm junction boxes Subtotal Initial Storm Sewer Sanitary Sewer 25' bore and jack (with steel casing) Subtotal Sanitary Sewer Water 1. Removal of existing 6" line within University 2. Relocation of existing fire hydrant 3. 12" x 8" cut -in tapping sleeve and valve 4. 12" Water line offset @ sanitary crossing $144,150 $8,600 City's Participation Agreement with 14 DRI/CA and Linbeck 5. 8" Water line offset @ water line connection 6. Approximately 150 if 6" water line 7. Approximately 601f 12" water line Subtotal Water $79,900 Total $533,745 The following information is intended to clarify the scope of the Project and the Cost Estimate for the Project. General Requirements 1. The Cost Estimate includes the cost for Kimley-Horn and Associates, Inc. to prepare design and construction drawings for the construction work in Area 1 and Area 2. The City of College Station will review and approve the drawings before construction work begins. The construction work will be performed in accordance with the Approved Plans. 2. The design and construction will be in accordance with the B/CS Unified Standards, as well as the College Station Northgate Standards. 3. The Cost Estimate excludes relocation of any existing utilities, except as noted below. 4. The new sidewalk along "The Stack" side of the roadway will be installed as part of the "The Stack" construction and is not included in this Cost Estimate or agreement. 5. The Cost Estimate excludes any soil remediation or soil management practices associated with hazardous materials. All surplus excavated material will be removed from the site with no special treatment or handling. 6. Light poles, street lamps, benches, and wastebaskets are not included in the Cost Estimate. Area 1 - Church Avenue Reconstruction The boundaries of Area 1 are shown on the Kimley-Horn drawing in Exhibit B. The Cost Estimate includes the following: 1. Demolish existing paving as required for rebuilding of Church Avenue. 2. Lime stabilize existing subgrade to a depth of 6" at a rate required to reach a PH not less than 12.4 and a PI less than 18. 3. Finish grade lime stabilized subgrade prior to installation of concrete paving. 4. Install 7" thick 4,000 psi concrete paving with #4 rebar at 12" O.C.E.W., - includes paving at apron of intersection of Church Avenue and University Drive. 5. Install one (1) brick paver cross walk at intersection of Church Avenue and University Drive. One (1) crosswalk for total of 401f. 6. Install curb and gutter, sidewalk, and paving work associated with extending island into T intersection. 7. Install Thermo pavement striping as required for two-way traffic on Church Avenue and parallel parking on the Rise side of Church Avenue. 8. Perform layout of work at required. 9. Provide new handicap ramp at east side of Church Avenue intersection with University Drive. City's Participation Agreement with 15 DR /CA and Linbeck 10. Install monolithic B/CS concrete curb and gutter along both sides of Church Avenue. The sidewalk, curb and gutter installation along The Rise Project side of road are part of the building construction and are not part of the Cost Estimate or the Agreement. Area 2 - Road Realignment The boundaries of Area 2 are shown on the Kimley-Horn drawing in Exhibit C. The Cost Estimate includes the following: 1. Install additional paving at T intersection, including: a. Lime stabilize existing subgrade to a depth of 6" at a rate required to reach a PH not less than 12.4 and a PI less than 18. b. Finish grade lime stabilized subgrade prior to installation of concrete paving. c. Install 7" thick 4,000 psi concrete paving with #4 rebar at 12" O.C.E.W. 2. Install three brick paver cross walks at intersection at T intersection (3 crosswalks for total of 12010. Includes two (2) handicap ramps located in new island in T intersection. 3. Provide four (4) stop signs. 4. Install additional monolithic B/CS concrete curb and gutter along realigned road at Culpepper Plaza Parking Lot. 5. Construct new storm sewer drain inlet on existing storm sewer line. Modifications at existing head in parking on Church Street along Taco Bell Parking Lot 1. Demolish existing paving, curb and gutter at head in parking spaces 2. Install concrete paving at Taco Bell entrance from Church Avenue to limits of dedicated ROW. 3. Provide monolithic B/CS concrete curb and gutter along Church Avenue. 4. Provide 10' wide brick paver sidewalk, sidewalk to stop at Taco Bell property line (approximately 210 if of new sidewalk). 5. Provide new handicap ramps on either side of the Taco Bell driveway entrance. 6. Provide one (1) tree well and tree at new brick paver sidewalk. Install tree well and tree per City of College Station standard. 7. Back fill behind sidewalk and install new sodding 8. Install one (1) new drain inlet on existing storm sewer line. 9. Remove approximately 100 if of existing storm drain line to and reroute with 100 if of 24" HDPE storm sewer pipe. 10. Reconstruct one existing storm sewer inlet to allow for installation of new storm line. Installation of Public Utilities The initial storm sewer work, sanitary sewer, water line relocation work is detailed on the "Storm Sewer Relocation, Sanitary Sewer and Water Line Extension" drawings dated 5/24/12 and prepared by Dawson Van Orden Civil Engineers. This work was installed at the start of The Rise Project and has already been inspected and accepted by the City of College Station. City's Participation Agreement with 16 DRI/CA and Linbeck Exhibit E Affidavit of All Bills Paid Form City's Participation Agreement with 17 DRI/CA and Linbeck THE STATE OF TEXAS § COUNTY OF BRAZOS § AFFIDAVIT OF BILLS PAID Before me, the undersigned authority, personally appeared ("Affiant"), of ("Contractor"), who being first duly sworn, deposed and state the following: "My name is . 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. Pursuant to that certain contract, dated as of , 20_ (the "Contract") by and between the City of College Station, Texas, and , Contractor furnished labor and materials to construct on the real property known as (more particularly described in the Contract) the "Project". To the extent that Contractor constructed or contracted for the construction of such , Contractor, has paid each of its sub- contractors, laborers and materialmen in full for all labor and/or materials provided to Contractor on the Project. To the best of Affiant's knowledge, Contractor has not received notice of any claims pending against the Project in connection with the described in the Contract. Further, Affiant saith not. Executed this day of , 20_. AFFIANT: Printed Name: SUBSCRIBED AND SWORN TO before me on this day of , 20_. Notary Public, State of Texas City's Participation Agreement with 18 DRI/CA and Linbeck Exhibit F Insurance Requirements During the term of this Agreement, Developer's and Developer Contractor's insurance policies shall meet the following requirements: I. Standard Insurance Policies Required: A. Commercial General Liability B. Business Automobile Liability C. Workers' Compensation II. General Requirements Applicable to All Policies: A. Only Insurance Carriers licensed and authorized to do business in the State of Texas will be accepted. B. Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per -occurrence basis for property damage. C. "Claims Made" policies are not accepted. D. Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior written notice has been given to the City of College Station. E. The City of College Station, its officers, agents, employees and volunteers, are to be named as "Additional Insured" to the Commercial General Liability and Business Automobile Liability policies, and further providing that the Developer's and Contractor's policies are primary to any self-insurance or insurance policies procured by the City. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, agents, employees or volunteers. III. Commercial General Liability A. General Liability insurance shall be written by a carrier with a "A:VIII" or better rating in accordance with the current Best Key Rating Guide. B. Limit of $1,000,000.00 per occurrence for bodily injury and property damage with an annual aggregate limit of $2,000,000.00, which limits shall be endorsed to be per Project. C. Coverage shall be at least as broad as ISO form GC 00 01. City's Participation Agreement with 19 DRI/CA and Linbeck D. No coverage shall be excluded from the standard policy without notification of individual exclusions being attached for 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, Personal & Advertising Liability; and Explosion, Collapse, and Underground coverage. IV. Business Automobile Liability A. Business Automobile Liability insurance shall be written by a carrier with a "A:VIII" or better rating in accordance with the current Best Key Rating Guide. B. Minimum Combined Single Limit of $1,000,000.00 per occurrence for bodily injury and property damage. C. Coverage shall be at least as broad as ISO Number CA 00 01. 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 owned autos, leased or rented autos, non -owned autos, any autos and hired autos. F. Pollution Liability coverage shall be provided by endorsement MCS -90, with a limit of $1,000,000.00. V. Waiver of subrogation in a form at least as broad as ISO form 2404 shall be provided in favor of the City on all policies obtained by the Developer and Developer's Contractor in compliance with the terms of this Agreement. Developer and Developer's Contractor shall be responsible for all deductibles which may exist on any policies obtained in compliance with the terms of this Agreement. All coverage for subcontractors shall be subject to the requirements stated herein. All Certificates of Insurance and endorsements shall be furnished to the City's Representative at the time of execution of this Agreement, attached hereto as Exhibit F, and approved by the City before work commences. VI. 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 insurance 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 City's Participation Agreement with 20 DRI/CA and Linbeck 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 employees of the subcontractor. 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 $1,000,000.00 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, this Agreement, and all subcontracts on this Project must include the following terms 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 City's Participation Agreement with 21 DRI/CA and Linbeck 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: (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. City's Participation Agreement with 22 DRI/CA and Linbeck 1. 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: (5) (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; 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. 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 City's Participation Agreement with 23 DRI/CA and Linbeck 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." VII. Certificates of Insurance on the most current form approved by the Texas Department of Insurance, shall be prepared and executed by the insurance company or its authorized agent, and shall contain the following provisions and warranties: A. The company is licensed and authorized to do business in the State of Texas. B. The insurance policies provided by the insurance company are underwritten on forms provided by the Texas Department of Insurance or ISO. C. All endorsements and insurance coverages according to requirements and instructions contained herein. D. The form of the notice of cancellation, termination, or change in coverage provisions to the City of College Station. E. Original endorsements affecting coverage required by this section shall be furnished with the certificates of insurance. City's Participation Agreement with 24 DR /CA and Linbeck Exhibit G Certificates of Insurance City's Participation Agreement with 25 DRI/CA and Linbeck ACORO® CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDD/YYYY) 2/26/2013 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 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). PRODUCER The Lesser Agency 7358 N. Lincoln Ave Suite 160 Lincolnwood IL 60712 CONTACT Todd Budnik NAME: (A CONNo. FXt)• (847) 675-3111 FAX No): (647)675-3105 tbudnik@lessera com ValEss:tbudnik@lesseragency.com DRy' INSURER(S) AFFORDING COVERAGE NAIC # INsuRERA Admiral Insurance Co LIABILITY COMMERCIAL GENERAL LIABILITY INSURED DRI/CA College Station, LLC Campus Acquisitions LLC 161 N. Clark St Ste 4900 Chicago IL 60601 INSURERS RSUI Indemnity Co CA000010581-07 INsuRERc Wesco Insurance Co 25011 INSURER D: $ 1,000,000 INSURERE: $ 300,000 INSURER F : $ 5,000 COVERAGES CERTIFICATE NUMBER:DRI/CA COLLEGE STATION REVISION NUMBER: 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. INSR LTRINSR TYPE OF INSURANCE ADDL SUBR WVD POLICY NUMBER POLICY EFF (MM/DDYYY) POLICY EXP/Y IMM/DD/YYYY) LIMITS A GENERAL X LIABILITY COMMERCIAL GENERAL LIABILITY CA000010581-07 1/31/2013 1/31/2014 EACH OCCURRENCE $ 1,000,000 DAMAGE TO PREMISES (Ea occurrence) $ 300,000 MED EXP (Any one person) $ 5,000 CLAIMS -MADE X OCCUR PERSONAL &ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 PRODUCTS - COMP/OP AGG $ 2,000,000 GENII AGGREGATE n l POLICY LIMIT APPLIES PER: JEPRO LOC CT $ A AUTOMOBILE X LIABILITY ANY AUTO ALLOWNED AUTOS HIRED AUTOS X SCHEDULED NON--OWNEDLED AUTOS CA000010581-07 CA000en 1/31/2013 1/31/2014 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ aDAMAGE(Pe $ $ B X UMBRELLA LIAB EXCESS LIAB XOCCUR CLAIMS -MADE NHA058971 1/31/2013 1/31/2014 EACH OCCURRENCE $ 25,000,000 AGGREGATE $ 25,000,000 $ DED X RETENTION$ 0 C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH)E.L. If yes, describe under DESCRIPTION OF OPERATIONS below Y/ N N / A y WWC3052866 2/1/2013 2/1/2014 X I TORY LIMITS I I OT H- ER E.L. EACH ACCIDENT S 1,000,000 DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedu e, if more space is required) COVERAGE APPLIES TO LOCATION AT: 717 UNIVERSITY DRIVE, COLLEGE STATION, TX. The City of College Station, its officers, agents, employees and volunteers, are "Additional Insured" under the Commercial General Liability and Business Automobile Liability coverages as required via written contract. CANCELLATION City Of College Station 1101 Texas Avenue College Station, TX 77840 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE � Todd Budnik/TODD � y _�- ACORD 25 (2010/05) I NS025 nnsi n i © 1988-2010 ACORD CORPORATION. All rights reserved. Tho Af!flP l name anti Innn aro ronictnrnrl marIc of Ar:nRn COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: 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 POLIC ES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS INSR LTRINSR TYPE OF INSURANCE ADDL SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) LIMITS A A GENERAL X LIABILITY COMMERCIAL GENERAL LIABILITY X X X X 41PKG8891304 41PKG8891304 12/20/2012 12/20/2012 12/20/2013 12/20/2013 EACH OCCURRENCE $ 1,000,000 DAMAGE TO RENTED PREMISES (Ea occurrence) $ 100,000 MED EXP (Any one person) $ 10,000 CLAIMS -MADE X OCCUR PERSONAL &ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 4,000,000 PRODUCTS - COMP/OP AGG $ 4,000,000 GEN'L —I AUTOMOBILE X AGGREGATE POLICY X LIABILITY ANY AUTO ALL OVVNED AUTOS HIRED AUTOS LIMITAPPLIES 137 8, _ PER: LOC SCHEDULED AUTOS AUTO-0VMJED EMPLOYEE BENEFI COMBINED SINGLE LIMIT (Ea acddent) $ 3,000,000 1 000 000 $ , , BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ (PER ACPERTY EACCIDENT) $ B X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE SISCCCL01957412 12/20/2012 12/20/2013 EACH OCCURRENCE $ 10,000,000 AGGREGATE $ 10,000,000 $ DED X RETENTION $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below Y / N N N / A X 41 WCI8891204 12/20/2012 12/20/2013 X WC STATU- TORY LIMITS OTH- ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 C D Excess Umbrella Contractor's Poll BE 37709390 CPL -98452-1213 12/20/2012 12/30/2012 12/20/2013 12/30/2013 See Attached See Attached DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule if more space is required) Re: #2140 - 717 University Drive- College Station DRI/CA College Station, LLC (Owner), Diamond Realty Investments, Inc., Diamond College Station, LLC, Matsushita Real, Estate Corporation of America, Inc., Campus Investors A&M, LP, Campus Investors A&M GP, LLC, CA Manager, LLC, Campus Ventures A&M, LLC, The Private Bank & Trust Company, City of College Station, Citibank, N.A., a national association are named as Additional Insureds on the General Liability, Automobile Liability and Umbrella Liability policies where required by written contract. General Liability shall be Primary and Non -Contributory with any other insurance in force for or which may be purchased by Additional Insureds. Waiver of Subrogation is in favor of DRI/CA College Station, LLC (Owner), Diamond Realty Investments, Inc., Diamond College Station, LLC, Matsushita Real, Estate Corporation of America, Inc., Campus Investors A&M, LP, Campus Investors A&M GP, LLC, CA Manager, LLC, SEE ATTACHED ACORD 101 LINBGRO-02 SLATESH ACORO �� CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 12/21/2012 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 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). PRODUCER Willis of Texas, Inc. c/o 26 Century Blvd. P.O. Box 305191 Nashville, TN 37230-5191 CONTACT NAME: PHONE 877 945-7378 FAX 888 467-2378 (A/C, No, Ext): ( INC, No): ) E-MAILDDRESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURERA :Arch Insurance Company 11150 INSURED Linbeck Group, LLC P. O. Box 22500 Houston, TX 77227 INSURER B : Starr Indemnity & Liability Company 38318 INSURER C : National Union Fire Insurance Company of Pittsbu 19445 INSURER D : Catlin Specialty Insurance Company 15989 INSURER E : INSURER F : CANCELLATION CERTIFICATE HOLDER ACORD 25 (2010/05) © 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. DRI -CA College Station, LLC c/o Campus Acquisitions, LLC AUTHORIZED REPRESENTATIVE 161Attn: JJ Smith North Clark Street, Suite 4900 .yam__ I )) �4•�1 (3 •� .A:0 .11 'Chicago, IL 60601 ACORD 25 (2010/05) © 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ACORD AGENCY CUSTOMER ID: LINBGRO-02 LOC #: SLATESH ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY Willis of Texas, Inc. NAMED INSURED Linbeck Group, LLC P 0 Box 22500 Houston, TX 77227 POLICY NUMBER SEE PAGE 1 CARRIER SEE PAGE 1 NAIC CODE SEE P 1 EFFECTIVE DATE: SEE PAGE 1 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 25 FORM TITLE: Certificate of Liability Insurance Description of Operations/Locations/Vehicles: Campus Ventures A&M, LLC, The Private Bank & Trust Company, City of College Station, Citibank, N.A., a national association on the General Liability, Automobile Liability, Umbrella Liability and Workers' Compensation policies where required by written contract and as permitted by law. ACORD 101 (2008/01) © 2008 ACORD CORPORATION. All rights reserved The ACORD name and logo are registered marks of ACORD ADDITIONAL COVERAGE SCHEDULE COVERAGE LIMITS POLICY TYPE: Contractors Professional and Pollution Liability CARRIER: Catlin Specialty Insurance Company POLICY TERM: 12/30/2012 — 12/30/2013 POLICY NUMBER: CPL -98452-1213 Professional Liability: $10,000,000 Each Claims/Aggregate Pollution Liability: $10,000,000 Each Claim/Aggregate POLICY TYPE: Excess Umbrella CARRIER: National Union Fire Insurance Company of Pittsburgh POLICY TERM: 12/20/2012 — 12/20/2013 POLICY NUMBER: BE 37709390 $15,000,000 xs $10,000,000 Exhibit H Performance and Payment Bonds City's Participation Agreement with 26 DRI/CA and Linbeck PERFORMANCE BOND 1 Bond No. 1060190 THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: THE COUNTY OF BRAZOS THAT WE, DRI/CA College Station, LLC. , as Principal, hereinafter called "Developer" and the other subscriber hereto _Lexon Insurance Companv — , as Surety, do hereby acknowledge ourselves to be held and firmly bound to the City of College Station, a municipal corporation, in the sum of Five Hundred Thirty Three Thousand Seven Hundred Forty Five and no/100 Dollars— ($533.745.00 ) for the payment of which sum, well and truly to be made to the City of College Station and its successors, the said Developer and Surety do bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally. THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT: WHEREAS, the Developer has on or about this day executed a Contract in writing with the City of College Station for Developing Property within the City of College Station described as Lot 1, Block I, of the 717 Subdivision in College Station. Brazos County, Texas all of such work to be done as set out in full in said Contract Documents therein referred to and adopted by the City Council, all of which are made a part of this instrument as fully and completely as if set out in full herein. NOW THEREFORE, if the said Developer shall faithfully and strictly perform Contract in all its terms, provisions, and stipulations in accordance with its true meaning and effect, and in accordance with the Contract Documents referred to therein and shall comply strictly with each and every provision of the Contract, including all warranties and indemnities therein and with this bond, then this obligation shall become null and void and shall have no further force and effect; otherwise the same is to remain in full force and effect. It is further understood and agreed that the Surety does hereby relieve the City of College Station or its representatives from the exercise of any diligence whatever in securing compliance on the part of the Developer with the terms of the Contract, including the making of payments thereunder and, having fully considered it's Principal's competence to perform the Contract in the underwriting of this Performance Bond, the Surety hereby waives any notice to it of any default, or delay by the in the performance of his Contract and agrees that it, the Surety, shall be bound to take notice of and shall be held to have knowledge of all acts or omissions of the Developer in all matters pertaining to the Contract. The Surety understands and agrees that the provision in the Contract that the City of College Station shall retain certain amounts due the Developer until the expiration of thirty days from the acceptance of the Work is intended for the City's benefit, and the City of College Station shall have the right to pay or withhold such retained amounts or any other amount owing under the Contract without changing or affecting the liability of the Surety hereon in any degree. It is further expressly agreed by Surety that the City of College Station or its representatives are at liberty at any time, without notice to the Surety, to make any change in the Contract Documents and in the Work to be done thereunder, as provided in the Contract, and in the terms and conditions thereof, or to make any change in, addition to, or deduction from the work to be done thereunder; and that such changes, if made, shall not in any way vitiate the obligation in this bond and undertaking or release the Surety therefrom. It is further expressly agreed and understood that the Developer and Surety will fully indemnify and save harmless the City of College Station from any liability, loss, cost, expense, or damage arising out of or in connection with the work done by the Developer under the Contract. In the event that the City of College Station shall bring any suit or other proceeding at law on the Contract or this bond or both, the Developer and Surety agree to pay to the City the actual amounts of attorney's fees incurred by the City in connection with such suit. This bond and all obligations created hereunder shall be performable in Brazos County, Texas. This bond is given in compliance with the provisions of Chapter 2253 of the Texas Govemment Code, as amended, which is incorporated herein by this reference. However, all of the express provisions hereof shall be applicable whether or City's Participation Agreement with 27 DRI/CA and Linbeck not within the scope of said statute. Notices required or permitted hereunder shall be in writing and shall be deemed delivered when actually received or, if earlier, on the third day following deposit in a United State Postal Service post office or receptacle, with proper postage affixed (certified mail, return receipt requested), addressed to the respective other party at the address prescribed in the Contract Documents, or at such other address as the receiving party may hereafter prescribe by written notice to the sending party. IN WITNESS THEREOF, the said Developer and Surety have signed and sealed this instrument on the respective dates written below their signatures and have attached current Power of Attorney. ATTEST, SEAL: (if a corporation) WITNE : , if no .1coAaoratio e.(i c4GKsedur OFFICIAL SEAL MELTS A RICKSECIg11 ATTEST (ITMtlic - State of I oi�3 i My Commission Expires,Jul 19 /015 By: �.. 60517 Name: Stephanie Shetler Title: N;(..ness Date: March 8. 2013 REVIEWED: City Attorney's Office DRI /CA College Station. LLC. Lexon Insurance Company (Full Name of Surety) 900 S. Frontage Road, Suite 250. Woodridge, II, (Address of Surety for Notice) By: (_ m Istme: Annette Albach Title: A ttorn ey-in-Fact Date:March 8 2013 THE FOREGOING BOND IS ACCEPTED ON BEHALF OF THE CITY OF COLLEGE STATION, TEXAS: City's Participation Agreement with 28 DRUCA and Linbeck TEXAS STATUTORY PAYMENT BOND Bond No. 1060190 THE STATE OF TEXAS THE COUNTY OF BRAZOS KNOW ALL MEN BY THESE PRESENTS: THAT WE, DRI/CA College Station, LLC. as Principal, hereinafter called "Principal" and the other subscriber hereto Lexon Insurance Company , a corporation organized and existing under the laws of the State of Texas , licensed to business in the State of Texas and admitted to write bonds, as Surety, herein after called "Surety", do hereby acknowledge ourselves to be held and firmly bound to the City of College Station, a municipal corporation, in the sum of Five Hundred Thirty Three Thousand Seven Hundred Forty Five and no/100 Dollars ($533.745.00 ) for payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns jointly and severally. THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT: WHEREAS, Principal has entered into a certain contract with the City of College Station, dated the day of , 20_, for Developing property within the City of College Station described as Lot 1. Block 1, of the 717 Subdivision in College Station, Brazos County, Texas , which contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW THEREFORE, the condition of this obligation is such that if Principal shall pay all claimants supplying labor and material to him or a subcontractor in the prosecution of the work provided for in said contract, then, this obligation shall be null and void; otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code and all liabilities on this bond shall be determined in accordance with the provisions, conditions and limitations of said Code to the same extent as if it were copied at length herein. IN WITNESS THEREOF, the said Principal and Surety have signed and sealed this instrument on the respective dates written below their signatures. City's Participation Agreement with 29 DRI/CA and Linbeck ATTEST, SEAL: (if a corporation) WITNESS: (if not a corporation) By: IA Name: Title: :(r$ cks c�+', re �k xvfGpe a-ho"� OFFICIAL SEAL MELIS'; RICKSECKER Notary „ohc - State of Illinois EsitsMINEst§ior Expires p) 2015 DRI/CA College Station. LLC. (Name of Contractor) PGvalfe hexon tt ee: `Cb Date: yuf3 m.Swtt Insurance Company (Full Name of Surety) By: 900 S. Frontage Road. Suite 250. Woodridge. IL 60517 Name: Stephanie Shetler Title:Witness Date:March 8, 2013 REVIEWED: City Attomey's Office (Address of Surety for Notice) By : Name:Annette Albac1 Title:Attorney-in-Fact Date:fvfarch 8.2013 THE FOREGOING BOND IS ACCEPTED ON BEHALF OF THE CITY OF COLLEGE STATION, TEXAS: City's Participation Agreement with 30 DRI/CA and Linbeck POWER OF ATTORNEY Lexon Insurance Company LX -'1 '16688 KNOW ALL MEN BY THESE PRESENTS, that LEXON INSURANCE COMPANY, a Texas Corporation, with its principal office in Louisville, Kentucky, does hereby constitute and appoint: Stephanie Shelter, Annette Albach, Barbara Mack * * * * * * * * * * its true and lawful Attorney(s)-In-Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond. This authority is made under and by the authority of a resolution which was passed by the Board of Directors of LEXON INSURANCE COMPANY on the 1st day of July, 2003 as follows: Resolved, that the President of the Company is hereby authorized to appoint and empower any representative of the Company or other person or persons as Attorney -In -Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed $2,500,000.00, Two -million five hundred thousand dollars, which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney -In -Fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney -In -Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney. Resolved, that the signature of the President and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Assistant Secretary, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond of undertaking to which it is attached, continue to be valid and binding on the Company. IN WITNESS THEREOF, LEXON INSURANCE COMPANY has caused this instrument to be signed by its President, and its Corporate Seal to be affixed this 21st day of September, 2009. ACKNOWLEDGEMENT LEXON INSURANCE COMPANY BY David E. Campbell President On this 21st day of September, 2009, before me. personally came David E. Campbell to me known, who being duly sworn, did depose and say that he is the President of LEXON INSURANCE COMPANY, the corporation described in and which executed the above instrument; that he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation. "OFFICIAL SEAL" MAUREEN K. AYE Notary Public, State of Illiuols My Commission Expires 09/21/13 CERTIFICATE l r Vc,uu Ce -u6,, Maureen K. Aye Notary Public 1, the undersigned, Assistant Secretary of LEXON INSURANCE COMPANY, A Texas Insurance Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force. Signed and Sealed at Woodridge, Illinois this fath Day of March 2013 ;,JFiANC�O ':O TEXAS 1-0 INSURANCE i> COMPANY i Y Philip G. Lauer Assistant Secretary "WARNING: Any person who knowingly and with Intent to defraud any insurance company or other person, files an application for insurance or statement of claim containing any materially false information, or conceals for the purpose of misleading, information concerning any fact materi- al thereto, commits a fraudulent insurance act, which is a crime and subjects such person to criminal and civil penalties." LX1 TEXAS STATUTORY PAYMENT BOND PAY09096563 THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: THE COUNTY OF BRAZOS § THAT WE, Linbeck Group, LLC , as Principal, hereinafter called "Principal" and the other subscriber hereto Zurich American Insurance Company , a corporation organized and existing under the laws of the State of New York , licensed to business in the State of Texas and admitted to write bonds, as Surety, herein after called "Surety", do hereby acknowledge ourselves to be held and firmly bound to the City of College Station, a municipal corporation, in the sum of FIVE HUNDREDTHIR7YTHREETHOUSAN° /1533,745.00) for payment SFVFNFIUNnRr❑ rr1RTYFIVER,wOlUiSA l whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns jointly and severally. THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT: WHEREAS, Principal has entered into a certain contract with the City of College Station, dated the day of , 2013, for Area 1 Work and Area 2 Work more generally described as Church Avenue Roadway Improvements, including Sidewalks, Crosswalks, which Storm Sewer, Trees, Irrigation, Driveway, Signage and Striping as detailed in Exhibit B and Ex ibit C , contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW THEREFORE, the condition of this obligation is such that if Principal shall pay all claimants supplying labor and material to him or a subcontractor in the prosecution of the work provided for in said contract, then, this obligation shall be null and void; otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code and all liabilities on this bond shall be determined in accordance with the provisions, conditions and limitations of said Code to the same extent as if it were copied at length herein. IN WITNESS THEREOF, the said Principal and Surety have signed and sealed this instrument on the respective dates written below their signatures. City's Participation Agreement with 28 DRUCA and Linbeck AI .1hST, SEAL: (if a corporation) WITNESS: (if not a corporation) By: /17.? Name: /Vle 1;556 /lac C&r) Tide: Exec..?ivt ATTEST/W1TNE `ate,✓ ame: Jo Ann Park • r /Tide: Witness Date: (SEAL) REVIEWED: City Attorney's Office City's Participation Agreement with DR.UCA and Linbeck Linbeck Group, LLC (Name of Contractor) By: %/t/y' Name:✓/�t►/ T Title: •' .fat sue_m Date: Zurich American Insurance Company (Full Name of Surety) 2000 W. Sam Houston Parkway South, Suite 900 (Address of Surety for Notice) Houston, Texas 77042 By: 0-e) udt NarrJacqueline Kirk Title: Attorney in Fact Date: THE FOREGOING BOND IS ACCEPTED ON BEHALF OF THE CITY OF COLLEGE STATION, 1 1XAS: 29 PAY09096563 Bund Number City of College Station Obligee ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Maryland, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by FRANK E. MARTIN JR., Vice President, in pursuance of authority granted by Article V, Section 8, of the By -Laws of said Companies, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby nominate, constitute, and appoint Larry H. SENKEL, Jacqueline KIRK, Theresa GILDART, Judy M. DOLD and Cynthia A. PETERS, all of Houston, Texas, EACH its true and lawful agent and Attorney -in -Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings, EXCEPT bonds on behalf of Independent Executors, Community Survivors and Community Guardians. , and the execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York, New York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills, Maryland., in their own proper persons. This power of attomey revokes that issued on behalf of Larry H. SENKEL, Pamela PROKOP, Jacqueline KIRK, Theresa GILDART, Judy M. DOLD, dated October 19, 2011. The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section 8, of the By -Laws of said Companies, and is now in force. IN WITNESS WHEREOF, the said Vice -President has hereunto subscribed his/her names and affixed the Corporate Seals of the said ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 30th day of March, A.D. 2012. ATTEST: ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND w 1 ,,07- Assistant Secretary Vice President Gregory E. Murray Frank E. Martin Jr. % ma f State of Maryland City of Baltimore On this 30th day of March, A.D. 2012, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, FRANK E. MARTIN JR., Vice President, and GREGORY E. MURRAY, Assistant Secretary, of the Companies, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly sworn, deposeth and saith, that helshc is the said officer of the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. POA -F 168-7051A Fidelity and Deposit Company of Maryland Hun Of' x P.O. Box 1227, Bei imwr, MD 212(13-1717 IMPORTANT NOTICE To obtain information or make a complaint: You may call the Fidelity and Deposit Company of Maryland or Colonial American Casualty and Surety Company's or Zurich Americfn Insurance Company toll-free telephone number for information or to make a COmp!Rint at; 1-800-654-5155 You may contact the Texas Departuient of Insurance to obtain information on companies, coverages, rights, or complaints at 1-800-252-3439 You may write the Texas Department of Insurance: P.O. Box 149104 Austin, TX 78714-9104 FAX if (512) 4754771 PREMIUM OR CLAIM DISPUTES: Should you have a dispute concerning the premium or about a claim, you should first contact Fidelity and Deposit Company of Maryland or Colonial American Casualty and Surety Company. If the dispute is not resolved, you may contact the Texas Department of Insurance. ATTACH TJIIS NOTICE TO YOUR POLICY: This notice is for information only and docs not become a part or condition of the attached document