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City Of San Marcos
<br />Form CoSM- Bond -01
<br />provision. Restoration includes but is not limited to vegetation, other than mature trees
<br />and shrubs, except as approved by the City, topsoil, signs, pavement, curb and gutter, and
<br />sidewalks.
<br />19. Markers must be placed in accordance with the TxDOT Utility Accommodation Policy as
<br />amended or any successor policy. All materials to be salvaged by the Owner must be
<br />made available to the City inspector for inspection if requested by the City.
<br />20. It is understood and agreed that Owner may continue to use its existing Owner Utilities
<br />and is under no obligation to cease the provision of service via said Owner Utilities until
<br />such time as the new facilities contemplated by this Agreement are completed and
<br />operational.
<br />21. The Owner acknowledges that it owns, operates, and maintains and shall continue to
<br />own, operate, and maintain the Owner Utilities after final completion of the work
<br />required to adjust, relocate, or reconstruct the Owner Utilities. The Owner agrees that if
<br />repairs or maintenance are necessary to the work described in this Agreement, the Owner
<br />shall pursue its rights and remedies solely against the contractors retained by the Owner
<br />or against any surety under any performance bonds delivered by Owner's contractors in
<br />connection with the work. In no event shall the City become responsible for making any
<br />repairs, for maintenance, or for discharging the cost of same. The City, however, to the
<br />extent permitted by law, shall be responsible to pay or reimburse Owner for the costs of
<br />repair or replacement of Owner Utilities resulting from damage thereto caused by the
<br />City. The Owner shall accept the responsibility for all future repairs and maintenance of
<br />said Owner Utilities.
<br />22. The Owner shall defend, indemnify and hold harmless the City and its officers,
<br />directors, and employees (each, a "City Indemnitee ") from and against all losses,
<br />costs, damages, injuries, demands, liabilities, claims, and causes of action, including
<br />reasonable attorney's fees, incurred by any City Indemnitee or asserted against any
<br />City Indemnitee due to activities of Owner, its employees, agents, contractors or
<br />subcontractors, in the performance of any work contemplated by this Agreement
<br />and which are caused by or result from any negligent act, error, or omission of the
<br />Owner, its employees, agents, contractors or subcontractors.
<br />23. This Agreement does not in any way, and shall not be construed to, create a
<br />principal/agent or joint venture relationship between the parties hereto and under no
<br />circumstances shall the Owner or the City be considered as or represent itself to be an
<br />agent of the other.
<br />24. This Agreement embodies the entire agreement between the parties and there are no oral
<br />or written agreements between the parties or any representations made which are not
<br />expressly set forth herein. This Agreement may be amended only by a written instrument
<br />executed by the parties hereto.
<br />25. This Agreement shall bind the Owner, the City, and their successors and assigns, and has
<br />been entered into for their sole benefit. Nothing in this Agreement nor in any approval
<br />subsequently provided by either party hereto shall be construed as giving any benefits,
<br />CoSM -03 Enterprise.doc Page 6 of 7
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