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Home My WebLink AboutDecember 04, 2012 AgendaAGENDA CITY OF DENTON CITY COUNCIL December 4, 2012 After determining that a quonim is present, the City Council of the City of Denton, Texas will convene in a Worlc Session on Tuesday, December 4, 2012 at 3:30 p.m. in the Council Worlc Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: WORK SESSION 1. Citizen Comments on Consent Agenda Items This section of the agenda allows citizens to spealc on Consent Agenda Items only. Each spealcer will be given a total of three (3) minutes to address any items he/she wishes that are listed on the Consent Agenda. A Request to Speak Card should be completed and returned to the City Secretary before Council considers this item. 2. Requests for clarification of agenda items listed on the agenda for December 4, 2012. Following the completion of the Work Session, the City Council will convene in a Closed Meeting to consider specific items when these items are listed below under the Closed Meeting section of this agenda. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Government Code, as amended, or as otherwise allowed by law. CLOSED MEETING 1. Closed Meeting: A. Consultation with Attorneys — Under Texas Government Code Section 551.071. 1. Consult with City's attorneys regarding legal rights, restrictions and obligations associated with real and personal property located at the Denton Municipal Landfill, and with the potential lease of such real and personal property to third parties, where a public discussion of such legal matters would conflict with the duty of the City's attorneys to the City of Denton, Texas under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. To the extent that discussion of the lease of such real property to third parties nught place the City at a disadvantage in negotiations, that component may be excepted under Section 551.072 as well. 2. Consult with the City's attorneys regarding legal issues associated with the exercise of enunent domain to acquire real property interests for public use, including without linutation, statutory procedural requirements related to the initiation of an eminent domain action, where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. City of Denton City Council Agenda December 4, 2012 Page 2 3. Consultation with the City's attorneys regarding legal issues associated with the potential condemnation of real property interests located in the O.S. Brewster Survey, Abstract No. 56, located generally in the 1700 Blocic of South Bonnie Brae Street, where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. B. Consultation with Attorneys — Under Texas Government Code Section 551.071; and Deliberations regarding Real Property — Under Texas Government Code Section 551.072. 1. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of a tract of fee land for public purposes situated in the Gideon Wallcer Survey, Abstract Number 1330, in the City of Denton, Denton County, Texas, generally located at south Mayhill Road north of Gayla Drive. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the tracts referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceedings or potential litigation regarding expanding and improving the City of Denton Landfill, a pernutted municipal solid waste disposal facility. (Wilson — Landfill) 2. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, and located generally along the south side of East McKinney Street, approximately 0.3 miles east of Woodrow Lane. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and condemnation of the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Vela — 691cV DME) 3. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the M.E.P. & P.R.R. Co. Survey, Abstract No. 1475, City of Denton, Denton County, Texas, and located generally along the 2500 blocic of East McKinney Street. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition City of Denton City Council Agenda December 4, 2012 Page 3 and condemnation of the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Dillard — 691cV DME) C. Consultation with Attorney — Under Texas Government Code Section 551-071, Deliberations regarding Econonuc Development Negotiations — Under Texas Government Code Section 551.087. 1. Receive a report and hold a discussion with the city's attorneys regarding the creation of a Tax Increment Reinvestment Zone on property located north of Airport Road near the Denton Airport where such discussion involves legal issues on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary niles of Professional conduct of the State Bar of Texas clearly conflicts with the provisions of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. Also hold a discussion regarding financial information the City Council will review, including the potential offer of financial or other incentives, concerning the development of an industrial park on approximately 700 acres located north of Airport Road near the Denton Airport. ANY F1NAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED 1N A CLOSED MEETING WILL ONLY BE TAKEN 1N AN OPEN MEETING THAT IS HELD 1N COMPLIANCE WITH TEXAS GOVERNIVIENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH F1NAL ACTION, DECISION, OR VOTE IS TAKEN 1N THE CLOSED MEETING 1N ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNIVIENT CODE (THE `PUBLIC POWER EXCEPTION'). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOLJRN 1NT0 A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET SE .(THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE 1N A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, 1N ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: REGULAR MEETING 1. PLEDGE OF ALLEGIANCE A. U. S. Flag B. Texas Flag City of Denton City Council Agenda December 4, 2012 Page 4 "Honor the Texas Flag — I pledge allegiance to thee, Texas, one state under God, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards 1. Presentation by the American Heart Association to Denton as a Fit Friendly Employer. 2. Police Appreciation Day 3. CITIZEN REPORTS 4. CONSENT AGENDA Each of these items is recommended by the Staff and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the Consent Agenda authorizes the City Manager or his designee to implement each item in accordance with the Staff recommendations. The City Council has received bacicground information and has had an opportunity to raise questions regarding these items prior to consideration. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent Agenda (Agenda Items A— P). This listing is provided on the Consent Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consent Agenda. If no items are pulled, Consent Agenda Items A— P below will be approved with one motion. If items are pulled for separate discussion, they may be considered as the first items following approval of the Consent Agenda. A. Consider approval of the minutes of: November 5, 2012 November 6, 2012 November 13, 2012 November 19, 2012 B. Consider adoption of an ordinance accepting bids and awarding a public worlcs contract for the renovation of the Heating Ventilation and Air Conditioning (HVAC) System at the City of Denton Martin Luther King Recreation Center; providing for the expenditure of funds therefor; and providing an effective date (Bid 5020—awarded to Integrity Texas Constniction LTD. in the amount of $116,431). C. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expendit�ire of funds for the purchase of Cem- Lime from Texas Industries Inc. (TXI), which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5048—Purchase of Dry Cem-Lime and Cem-Lime Super Slurry for Street Department in the annual estimated amount of $300,000 for a five year estimated total of $1,500,000). City of Denton City Council Agenda December 4, 2012 Page 5 D. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of LifePalc 15 Defibrillators from Physio Control, Inc., which are available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5123—Purchase of Defibrillators for the City of Denton Fire Department in the estimated amount of $560,000 for the replacement of fourteen units over a five (5) year period). E. Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the State of Texas Cooperative Purchasing Program for the purchase of Polymer for the City of Denton Pecan Creelc Water Reclamation Plant as awarded by the State of Texas Contract 885-M1(885-77); and providing an effective date (File 5025—Polymer for Pecan Creelc Water Reclamation Plant awarded to Polydyne Inc. in the unit price amount of $1.07/lb for an estimated annual amount of $90,000 with four (4) one year renewal options). The Public Utilities Board recommends approval (6-0). F. Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of Fiber Optical Ground Wire (OPGW) for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5030—Supply of Electric Utility OPGW Transmission Conductor awarded to Techline, Inc. in the not to exceed amount of $630,000). The Public Utilities Board recommends approval (6-0). G. Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of 69kV and 138kV Substation Switches for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5071—Supply of Electric Utility 691cV and 1381cV Substation Switches awarded to Southern States, LLC in the not to exceed amount of $5,850,000). The Public Utilities Board recommends approval (6-0). H. Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of Polymer Insulators for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5075—Supply of Polymer Insulators awarded to Techline, Inc. in the not to exceed amount of $590,000). The Public Utilities Board recommends approval (6-0). L Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of porcelain station post insulators for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5023—Supply of Porcelain Station Post Insulators awarded to Victor Insulators, Inc. in the not to exceed amount of $280,000). The Public Utilities Board recommends approval (6-0). J. Consider adoption of an ordinance accepting competitive proposals and awarding contracts for the purchase of electric utility 69kV and 138kV instniment transformers for Denton Municipal Electric; providing for the expenditure of City of Denton City Council Agenda December 4, 2012 Page 6 funds therefor; and providing an effective date (RFP 5064—Supply of Electric Utility 691cV and 1381cV Instniment Transformers awarded to ABB HVIT in the not to exceed amount of $2,290,000, Alstom Grid, Inc. in the not to exceed amount of $200,000, and Trench Limited in the not to exceed amount of $50,000 for a total award amount not to exceed $2,540,000). The Public Utilities Board recommends approval (6-0). K. Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of Phase Over Phase 1381cV Pole Mounted Gang Operated Air Brealc (GOAB) Switches for Denton Municipal Electric; providing for the expendit�ire of funds therefor; and providing an effective date (RFP 5065— Supply of Phase Over Phase 1381cV Pole Mounted Gang Operated Air Brealc (GOAB) Switches awarded to Stuart C. Irby Company in the not to exceed amount of $470,000). The Public Utilities Board recommends approval (6-0). L. Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of electric utility transmission conductor (Cumberland and Lupine) for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5066—Supply of Electric Utility Transnussion Conductor (Cumberland and Lupine) awarded to Stuart C. Irby Company in the not to exceed amount of $1,410,000). The Public Utilities Board recommends approval (6-0). M Consider adoption of an ordinance on second reading granting to Oncor Electric Delivery Company LLC a non-exclusive franchise for the purpose of constnicting, maintaining, and using an electric delivery utility system in the City of Denton; regulating the constniction worlc done by the grantee in the City; requiring j oint use of poles, trenches, and conduits in certain instances; prescribing the relationship and relative rights between grantee and others with respect to constniction in the City and location of facilities; prescribing the duties, responsibilities, and nile malcing authority of the City Manager and the City with respect to administration of this franchise; requiring certain records and reports and providing for inspections and location of principal offices; reserving to the governing body of the City the right to set charges and rates of grantee; providing the rights and responsibilities of the governing body in setting the rates; providing for enforcement of the franchise; prescribing the compensation to the City from the grantee for the franchise privilege; providing for assignment of the franchise; providing indemnity of the City and its employees; providing for good faith effort; providing for insurance; setting forth the term of the franchise and its renewal; repealing Ordinance No. 2001-405 as amended; providing for acceptance of the franchise by grantee; finding that the meeting at which this Ordinance is passed is open to the public; providing for severability; and providing an effective date. (Second Reading) N. Consider a request for an exception to the Noise Ordinance for the purpose of perfornung live music by the SuperEstrellas at the La Estrella Mini Marlcet, on the corner of McKinney Street and Railroad Avenue, for each Friday night beginning December 7, 2012, through January 11, 2013, from 8:00 p.m. until nudnight. This request is for an extension of hours from 10 p.m. to nudnight for amplified sound. The amplified sound will remain at the allowable 65 decibels. Staff recommends the exception be granted until nudnight. City of Denton City Council Agenda December 4, 2012 Page 7 O. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a contract of sale (herein so called), as attached to the ordinance and made a part thereof as Exhibit "A", by and between the City of Denton (the "City"), and Gary Dennis Dillard (the "Seller") contemplating the sale by Seller and purchase by City of a 3.480 acre tract of land, more or less, being generally located in the 2500 blocic of east McKinney street and siniated in the M.E.P. & P.R.R. CO. Survey, Abstract Number 1475, City of Denton, Denton County, Texas (the "Property Interests"); for the purchase price of Three Hundred Ninety Thousand and No/100 Dollars ($390,000.00); authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transaction contemplated by the contract of sale; authorizing the expenditure of funds therefore; authorizing, to the extent applicable, relocation expenditures; and providing an effective date. (691cV Transnussion Line Re-build Project) P. Consider adoption of an ordinance authorizing the Mayor to execute an Interlocal Cooperation Agreement between Denton County, Texas, and the City of Denton, Texas accepting Denton County's donation of the Waide Road Bridge and agreeing to accept the financial responsibility for any relocation, storage, refurbishing, and transportation expenses necessitated by this agreement and associated with the bridge; and providing for an effective date. 5. PUBLIC HEARINGS A. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending Subchapter 35.3.8 of the Denton Development Code concerning the adoption of the vested rights determination revisions. (DCA12-0007) B. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a Comprehensive Plan Amendment from a "Neighborhood Centers" future land use designation to a"Community Mixed Use Centers" future land use designation on approximately 22 acres of land located on the west side of Teasley Lane (2181), between Hicicory Creelc Road to the north and Old Alton Road to the south, in the City of Denton, Denton County, Texas; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, severability and an effective date. (CA12-0003) The Planning and Zoning Comnussion recommends approval (7-0). C. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a zoning change from a Neighborhood Residential 6 (NR-6) zoning district and use classification to a Community Mixed Use General (CM-G) zoning district and use classification on approximately 2.2 acres of land located on the west side of Teasley Lane (2181), between Hicicory Creelc Road to the north and Old Alton Road to the south, in the City of Denton, Denton County, Texas; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, severability and an effective date. (Z12-0007) The Planning and Zoning Commission recommends approval (7-0). City of Denton City Council Agenda December 4, 2012 Page 8 6. ITEMS FOR INDIVIDUAL CONSIDERATION — CONSIDERATION OF THE USE OF EMINENT DOMAIN TO CONDEMN REAL PROPERTY INTERESTS A. Consider adoption of an ordinance finding that a public use and necessity exists to acquire through the exercise of the right of enunent domain (� a utility and slope easement encumbering 0.05 acre of real property; and (II) a temporary constniction, grading and access easement encumbering 0.08 acre of real property, for the public use of expanding and improving Bonnie Brae Street, a municipal street and roadway located in the City of Denton, Texas, generally located in the 1700 blocic of South Bonnie Brae Street, and situated in the O. S. Brewster Survey, Abstract Number 56, City of Denton, Denton County, Texas, as more particularly described in Exhibit "A" and Exhibit "B", respectively, each attached to the ordinance and made a part thereof (collectively, the "Property Interests"); authorizing the filing and prosecution of enunent domain proceedings to acquire the Property Interests; authorizing the expenditure of funds therefore; malcing findings; providing a savings clause; and providing an effective date. (Parcels 7 and 8— Martin — Bonnie Brae Widening and Improvements project) B. Consider adoption of an ordinance finding that a public use and necessity exists to acquire through the exercise of the right of eminent domain (� fee simple title to the surface estate, with waiver of surface use related to the mineral estate, of an approximate 7.36 acre tract of real property; (II) a slope easement encumbering 0.33 acre of real property; (II� a drainage easement encumbering 1.35 acres of real property; and (IV) a temporary constniction, grading and access easement encumbering 0.03 acre of real property, for the public use of expanding and improving Bonnie Brae Street, a municipal street and roadway located in the City of Denton, Texas, generally located in the 3100 blocic of South Bonnie Brae Street, and situated in the James Edmonson Survey, Abstract Number 400, City of Denton, Denton County, Texas, as more particularly described in Exhibit "A", Exhibit "B", Exhibit "C" and Exhibit "D", respectively, each attached to the ordinance and made a part thereof (collectively, the "Property Interests"); authorizing the filing and prosecution of eminent domain proceedings to acquire the Property Interests; authorizing the expenditure of funds therefore; malcing findings; providing a savings clause; and providing an effective date. (Parcel 35 — Parlces — Bonnie Brae Widening and Improvements project) C. Consider adoption of an ordinance finding that a public use and necessity exists to acquire through the exercise of the right of enunent domain (I) fee simple to the surface estate, with waiver of surface use related to the mineral estate, of an approximate 0.07 acre tract of real property; (II) a utility and slope easement encumbering a 0.07 acre tract of real property; (II� a utility and drainage easement encumbering a 0.01 acre tract of real property; (IV) a drainage easement encumbering a 0.03 acre tract of real property (V) a slope easement encumbering a 213 square foot tract of real property; and (V� a temporary constniction, grading and access easement encumbering a 0.08 acre tract of real property, for the public use of expanding and improving Bonnie Brae Street, a municipal street and roadway located in the City of Denton, Texas, generally located in the 2200 blocic of South Bonnie Brae Street, and situated in the O.S. Brewster Survey, Abstract Number 56, City of Denton, Denton County, Texas, as more particularly City of Denton City Council Agenda December 4, 2012 Page 9 described in Exhibit "A" Exhibit "B" Exhibit "C" Exhibit "D" Exhibit "E" and > > > > Exhibit "F", respectively, each attached to the ordinance and made a part thereof (collectively, the "Property Interests"); authorizing the filing and prosecution of eminent domain proceedings to acquire the Property Interests; authorizing the expenditure of funds therefore; malcing findings; providing a savings clause; and providing an effective date. (Parcel 24 — Watts — Bonnie Brae Widening and Improvements proj ect) 7. ITEMS FOR INDIVIDUAL CONSIDERATION A. Receive a report and hold a discussion regarding the status of the widening of U.S. Highway 380. B. Receive comments from the public and hold a discussion regarding the Phase II amendments of the City's Gas Well Ordinance. 8. CITIZEN REPORTS 9. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upconung meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be talcen, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a renunder about an upconung event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. B. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of ineeting was posted on the bulletin board at the City Hall of the City of Denton, Texas, on the day of , 2012 at o'clocic (a.m.) �P.m.) CITY SECRETARY City of Denton City Council Agenda December 4, 2012 Page 10 NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE 1N ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS 1N ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMM[_JNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800-RELAY- TX SO THAT A SIGN LANGUAGE 1NTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY' S OFFICE. 4 �1 II"ll �q !" II ll � �"h�� ;q !" II"ll � � u'Po �"h� CITY OF DENTON CITY COUNCIL MINUTES November 5, 2012 After deternuning that a quonim was present, the City Council convened in a Work Session on Monday, November 5, 2012 at 11:30 a.m. in the City Work Session Room. PRESENT: Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Council Member King, Council Member Roden, Mayor Pro Tem Kamp, Mayor Burroughs ABSENT: None 1. Receive a report, hold a discussion, and give staff direction regarding the addition of natural gas as an alternative transportation fuel for a portion of the Solid Waste and Recycling Services collection fleet and other interested City departments. Vance Kemler, General Manager-Solid Waste, presented information concerning the addition of natural gas as an alternative transportation fuel for Solid Waste. Key issues included (1) national, state and local policy, (2) background on the gas industry and grants, (3) fuel processing, (4) tnicic performance and maintenance, (5) safety and emissions, (6) project goals, and (7) overview and recommendation. He noted that CNG meant compressed natural gas and LNG meant liquid natural gas. National, State and Local Policy — in April 2012 governors from 13 states signed a letter to automakers aslcing for help in converting state fleets from gasoline to CNG. The Department of Energy had announced proj ects to advance innovative natural gas vehicle technologies. The US Council of Mayors supported the Natural Gas Act. The City's policy was to promote Clean Fleet Initiatives since 2005. The proposal also corresponded to the City's Strategic Plan regarding sustainable economic development and environmental stewardship for improved local and regional air quality and the management of natural resources. A listing of CNG/LNG vehicles in the U.S. was presented. Alternative fueling stations in the U. S. were also presented. TCEQ Clean Transportation Triangle Grant - Fueling Stations - Denton was awarded a grant in the amount of $400,000 for establishing a CNG/LNG fueling station. The Station was to be open to the public and was a reimbursement grant. Council must accept the grant after which Purchasing would issue an RFP to develop a public/private partnership to develop and operate a fueling station. The TCEQ Texas Clean Fleet Program Grant was an additional grant that was available for vehicles. This grant was linuted to replacement tnicks and the amount received was a percentage of the tnick cost, based on the age of the vehicle engine. Keniler presented information on fuel price comparisons in terms of unit of ineasurement and fuel cost per diesel gallon equivalent. Council Member Watts aslced what the easiest way was to correlate the price of natural gas and diesel raw pricing at the pump prices. City of Denton City Council Minutes November 5, 2012 Page 2 Keniler stated that right now the gallon equivalent to raw gas was 40-45 cents per gallon which was more than diesel at the pump. Council Member Gregory asked if the diesel gallon was the same as nules per gallon or volume. Keniler stated that the economy compared compressed gas to diesel was equal to or slightly less than diesel fuel. The equivalency was to look at BTU energy value and compare energy value of diesel grade. Natural gas had a nunimum amount of BTU per national regulations. The Solid Waste annual fuel budget impact was reviewed. Cost savings would be approximately $550,000 when half of the fleet was converted. The increased vehicle cost for CNG was $40,000 per tnick which the grants would help reduce this increased tnick cost. The CGN investment paybacic period was 2.9-3.2 years and the collection tnicic replacement cycle was 7 years. Council discussed the provisions of the grant in terms of replacement vehicles and what would be done to the fleet with the new vehicles. Keniler continued with the CNG tnicic performance versus diesel, safety, and emissions. Project Goals - the Solid Waste Department would lilce to promote environmental sustainability by improving local and regional air quality through the addition of CNG fueled vehicles. It also wanted to improve the operations sustainability by using local natural gas as a vehicle fuel thereby reducing the purchase of diesel fuel and desired to reduce and better control fuel costs in providing collection services. Project Overview — the proposed project would transition a portion of the Solid Waste Collection fleet to CNG fuel with at least 8 tnicks converted in the first year. The project would also establish the first CNG and/or LNG fueling stations to support the community's current and future natural gas fueling needs. This would require a request for proposal for a public/private partnership to constnict/operate a public access fueling station. The Public Utilities Board and staff recommended (1) the acceptance of the $400,000 Clean Transportation Triangle Grant, (2) the City partner with a private entity to constnict and operate the natural gas fueling facility, and (3) the Solid Waste department transition a portion of the Solid Waste fleet to CNG fueling. Mayor Pro Tem Kamp aslced if there were private companies in the area that built these types of facilities. Keniler stated that he had spolcen to more than six in the area. Some of those companies had experience in the solid waste area. Mayor Burroughs aslced what the match would be for the $400,000 grant. Keniler stated that this was not a matching grant but rather a reimbursement grant. The final cost of the station would be more than $400,000. City of Denton City Council Minutes November 5, 2012 Page 3 Mayor Burroughs asked about the cost for a station. Keniler stated that the City would be requesting both CNG and LNG fueling capacity in the RFP. The possible range of cost would be $2-$4 million to put in the station depending on the alternatives used. There were three possible sites near the landfill. Mayor Burroughs asked what the City would have to provide with this arrangement. Keniler stated that there were many possible components. One would be to guarantee a certain amount of fuel purchased which would be based on the number of tnicics purchased. As the facility would be on city property, there would be a ground lease which would provide revenue to the City. The rate stnicture for fuel would be less than the current retail pump rate. The capital costs for the building of the facility would be recouped from the rate charged to the City and to customers. Council Member Gregory stated that the DISD had a number of buses that operated on propane. He asked if that was different from CNG. Keniler stated that propane was different from CNG. Staff would be approaching the County and DISD to see if they might want to transition their fleet to CNG over time. Council Member Watts stated if the City moved forward to buy eight tnicics that the grant money would help offset the cost and if there were some funds remaining, it would be very important what was done with the savings. He suggested not placing it in the General Fund but rather put it in a fund to help finance the facility or help fund future tnicics not subject to the grant. If the proj ect was going to go forward, he suggested providing the location as a convenience for other municipalities and others to come to Denton to use the facility. The public component was very important. Keniler agreed that the public component was very important. Council Member Watts felt that there was a need to loolc for the correct placement for the facility as an incentive for future development. Loolc for convenience for the outside customers and how to use the facility for economic development purposes. Keniler stated that part of the grant involved the proxinuty of the facility to the Interstate. Ease of access was a key component. Council Member Roden aslced who benefited from the use of the facility. Council discussed the different types of stations and the different volumes to produce from those stations, the time to fuel the tnicics as opposed to diesel fueling, what would happen if that station went down, and who would be involved in the pricing of the gas. Mayor Burroughs noted that after the proposals were in Council would have another discussion on the proj ect. City of Denton City Council Minutes November 5, 2012 Page 4 2. Receive a report, hold a discussion, and give staff direction regarding an ordinance of the City of Denton, Texas amending Chapter 13 (Food and Food Service Establishments) of the City of Denton Code of Ordinances by deleting Articles I, II, III, IV, V and VI in their entirety; adopting the Texas Food Establishment Rules promulgated by the Texas Department of State Health Services and malcing related deletions and amendments. Kurt Hansen, Building Official, presented the information on the proposed ordinance for Food and Food Service Establishments. He reviewed the public meetings history of the proposal. The current version of the ordinance was adopted in 2004. The Texas Food Establishment Rules set the nunimum standard for the ordinance. He noted that the City now had over 600 food establishments. The following were changes in the proposed ordinance from the August 2012 version: (1) Definition of commercially manufactured — the change revised the wording to "a person" showing a high degree of slcill or competence rather than the previous wording of "a professional". (2) Definition of community market — the change provided a separate definition of community marlcet as opposed to the definition of a farmers marlcet. Council Member Roden asked if the proposal would allow for more temporary permits. Hansen stated that the community marlcet would be a subset of the farmers marlcet. Council Member Gregory asked if the definition for "homegrown" would preclude farm grown produce rather than produce from a bacicyard. Hansen stated if a person was producing food for the public a manufacnirer's license would be required. Laurie Pearson, Health Inspector, stated that both types of produce would be allowed at a community marlcet. The word "primarily" allowed for the flexibility in where the food was produced. Council Member Gregory stated that larger operations would be allowed. Pearson stated yes and an application would be required. Council Member Roden stated that there was a definition for community marlcet but there was no reference to it in the ordinance. He questioned how a community marlcet and farmers marlcet would be administered. He suggested including something in the ordinance. (3) Class III Mobile Food Establishments — this was an added section to the ordinance. The Class I Mobile Food Establishment was a hot/cold tnicic with pre-pacicaged food. Class II was a mobile food establishment that would prepare the food on site. A Class III unit was one that operated only at one location for the life of a pernut and only served a limited menu as approved City of Denton City Council Minutes November 5, 2012 Page 5 by the Consumer Health Division. It was sinular to the large push carts located at Home Depot or Lowes. A Class IV unit would be a limited service pushcart which was one which was pushed from place to place. Mayor Burroughs expressed concern about listing such a defined list of food. A specific definition would be difficult in enforcing the ordinance. Hansen stated that the items on the list were easy foods to lceep warm and safe for the public. Other items were harder to lceep warm and safe such as corn dogs. If a vendor wanted something different, they could get approval from the Health Inspector. Mayor Burroughs was concerned about the implementation of foods not listed. He suggested worlcing on internal niles on how to enforce different foods. If staff lcept finding foods to add to the list, then the ordinance could be changed to accommodate those types of foods. City Manager Campbell stated that if the wording was too vague, a vendor could get around the inspection process. The process would be to bring items not on list to the Health Inspector for approval. Mayor Burroughs stated that when the internal niles on what to loolc for were established, staff would be establishing patterns on equipment. The Health Department would loolc at this to determine if other non-listed foods could be incorporated. Hansen stated that could be added to the pernut package that was provided a possible vendor. Mayor Pro Tem Kamp stated that the health inspectors saw this everyday and lilced the suggestion to bring that forward in the future. Council Member Gregory stated that flexibility for food items was in the statement "unless authorized by the Health Inspector". Mayor Burroughs suggested including the food items listed in Class IV in the list of food items for Class III. (4) Clarify section of definition of push carts — this section was elinunated and replaced with a definition for Class IV Mobile Food Establishments. Hansen presented information on push cart requirements in a comparison with Denton, Dallas, Fort Worth and Austin. (5) Temporary Food Permits — staff was proposing increasing the number of temporary food pernuts from 3 permits per year to 6 permits per year per establishment with no time period between the pernuts. Council Member Roden questioned the limiting of the number of temporary permits per year. City of Denton City Council Minutes November 5, 2012 Page 6 Hansen stated the limiting of the number permits was to keep vendors from opening a food establishment every weekend. Council Member Gregory stated that he would lilce "community based" wording put bacic into the language. Hansen stated that "community based" was talcen out as it was a very broad definition; however, if Council desired, that wording could be put bacic into the ordinance. Council Member Watts stated that a community based event was an event where people were invited to attend as opposed to just setting up in a location with nothing happening. Council Member Roden felt that if the definition of community based was placed in the ordinance, he would not be as concerned about the number of permits. (6) Air curtain requirement — this requirement was deleted from the proposed ordinance as the regulations were already covered in the TEFER. (7) Clarify "one location" — the wording was changed to define one location as "one parcel of land". (8) Mobile Food Establishments & Special Events — the wording change would allow mobile food establishments that had a current pernut to be pernutted at Special Events with permission from the Event Coordinator. (9) Eliminate setbacic requirement — the Legal Department felt that the setbacic regulations should stay in the ordinance. (10) Comments and Suggestions — a comment/suggestion section was added to the Consumer Health webpage for suggestions. (11) Daily servicing at commissary — this section would tell where the mobile food tnicic was going for food, where it was going to wash out the vehicle, where the used grease would be dumped. The proposed ordinance was changed from only being able to use one location to being able to use multiple locations. Council discussed the definition of commissary and procedures for operating at temporary events. Hansen stated that wording could be added that during a temporary event, as long as the tnicic was clean, it would not have to move every day get to a comnussary. Mayor Burroughs stated that the Event Coordinator could malce certain the tnicics were clean to get the desired outcome. City of Denton City Council Minutes November 5, 2012 Page 7 (12) Using an existing food establishment as a comnussary — this would be allowed in the proposed ordinance only if the existing food establishment was approved by the health officer. There were requirements which the location would have to meet in order to be approved. (13) Neighborhood Associations — the revised ordinance indicated that a mobile unit could not sell food in a residential district without written permission from the homeowners association or neighborhood association. The units would not be allowed in a residential zone that did not have an active homeowners or neighborhood association. The Health and Building Standards Comnussion recommended a six month trial nin period and then a re-evaluation of the ordinance. Council Member Watts suggested that a six month trial period might be too long and suggested having the flexibility to bring the ordinance back for review sooner if needed. Council Member Roden felt it was good timing to move forward with ordinance and not delay it any longer. He noted that the requirements for the fire code might also present problems with the goal of the policy. Hansen stated that they had always enforced the fire department regulations for many years. He did not foresee any other surprises. Mayor Burroughs suggested loolcing at the fire suppression issue at a later date as changes had happened over the years. At that time there could be a general discussion on the differences in new technology. With no further business, the meeting was adjourned at 2:06 p.m. MARK A. BLJRROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES November 6, 2012 After deternuning in Open Session that a quonim was present, the City Council convened in a Closed Session on Tuesday, November 6, 2012 at 3:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden ABSENT: None 1. Closed Meeting: A. Consultation with Attorneys - Under Texas Government Code Section 551.071. 1. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with Phase I and proposed Phase II Gas Well Ordinance regulation of gas well drilling and production within the City Limits and the extraterritorial jurisdiction, including Constitutional linutations, stanitory limitations upon municipal regulatory authority, moratorium on drilling and production and claims associated therewith, statutory preemption and/or impacts of federal and state law and regulations as it concerns municipal regulatory authority and matters relating to enforcement of the ordinance. 2. Consultation with the City's attorneys regarding legal issues associated with the creation of a public improvement district for the Rayzor Ranch mixed-use development, where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any potential litigation. This item was discussed during the second Closed Session following the regular meeting. 3. Consult with City's attorneys regarding legal rights, restrictions and obligations under Texas law, associated with overlapping extraterritorial jurisdictions claimed by municipalities neighboring the City of Denton, Texas, where a public discussion of such legal matters would conflict with the duty of the City's attorneys to the City of Denton, Texas under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, and where such matters may become an issue in potential litigation. This item was discussed during the second Closed Session following the regular meeting. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., ,ti @�'a��d.. � B. Consultation with Attorneys-Under Texas Government Code Section 551.071; and Deliberations regarding Real Property-Under Texas Government Code Section 551.072. 1. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the fee acquisition of a tract of land for public purposes situated in the Gideon Wallcer Survey, Abstract Number 1330, in the City of Denton, Denton County, Texas, generally located in the 650 blocic of South Mayhill Road. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the tracts referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceedings or potential litigation regarding expanding and improving the City of Denton Landfill, a pernutted municipal solid waste disposal facility. 2. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located (1) in the William Roarlc Survey, Abstract No. 1087, the James L. Harris Survey, Abstract No. 555, and the J. Edmonson Survey, Abstract No. 401, Denton County, Texas, and located generally at the northeast and southeast corners of the intersection of Vintage Boulevard and Bonnie Brae Street, and (2) in the A.N.B. Tomplcins Survey, Abstract Number 1246, Denton County, Texas (located generally in the 2100 blocic of South Bonnie Brae Street), all within the City of Denton, Texas. Consultation with the City's attorney's regarding legal issues associated with the acquisition or condemnation of tracts referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any adnunistrative proceedings or potential litigation. 3. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located (1) in the M.E.P. & P.R.R. Co. Survey, Abstract Number 927, Denton County, Texas, and located generally in the 200 blocic of North Mayhill Road and (2) in the Morreau Forrest Survey, Abstract Number 417, City of Denton, Denton County, Texas, and located generally in the 600 blocic of South Mayhill Road, all within the City of Denton, Texas. Consultation with the City's attorney's regarding legal issues associated with the acquisition or condemnation of tracts referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and Denton City � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., � @�' a� ��' u',° . Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceedings or potential litigation. Following the completion of the Close Session, the Council convened into a Work Session. Citizen Comments on Consent Agenda Items There were no citizen comments on Consent Agenda items. 2. Requests for clarification of agenda items listed on the agenda for November 6, 2012. Mayor Burroughs noted that there had been a number of revisions to the Consent Agenda Item 4M relating to the food tnick ordinance as a result of Monday's meeting and he was going to pull it for individual consideration in order to advise the public of those changes. Receive a report, hold a discussion, and give staff direction regarding the Phase II amendments of the City's Gas Well Ordinance. Darren Groth, Gas Well Administrator, presented an update on the gas well ordinance. The Overview of the presentation would include (1) Phase II Timeline, (2) prior actions, (3) bacicground information, (4) AIS exhibits and (5) substantive changes between the lst and 2nd ordinance drafts. Groth reviewed the timeline revisions. A third Planning and Zoning Comnussion meeting was added for November 28th. The December 4th City Council meeting did not include the Phase II ordinance revision items. A public hearing was scheduled for the Council's December lgtn meeting. Prior actions - The Advisory Gas Well Taslc Force held a public meeting on October lst with city staff presenting a list of proposed changes to the draft ordinance. The draft ordinance was posted online for public review and comment on October 2"a. Public comments were accepted through October 12th. Twenty-five comments were subnutted during the 11 day comment period. The Taslc Force met again on October 22nd to review the draft ordinance changes made since the October 1 st meeting. The Planning and Zoning Commission held a public hearing on October 24th to receive public comments for the revisions. The public hearing was continued to the November 14th Comnussion meeting. Bacicground information — Council was previously briefed by staff during the January 315t worlc session during which staff presented the malce-up, status and progress of Gas Well Taslc Force. During the May 8th work session, staff summarized the Task Force process and updated Council on the Phase II revisions. At that meeting, Council requested additional information that included (1) Taslc Force action item voting results, (2) action items receiving a split vote, and (3) issues not discussed by the Taslc Force, but addressed in other municipal regulations. The initial draft ordinance was edited solely based on the Task Force recommendations and then presented � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�'a��d:' ,:n during the October lst Taslc Force meeting. The October lst draft was also forwarded to legal, scientific, and technical advisors for comment. Groth reviewed the Agenda Information Sheet exhibits that were included in the bacictip materials. Council Member Watts stated that under excluded items was the provision for old well bores. He felt that might need further review. Mayor Burroughs stated that drilling into other well bores nught be just drilling with no separate distinction. Mayor Pro Tem Kamp asked about the ambient noise report. It appeared that Denton would not be requiring noise nutigation while other cities did have that requirement. Groth stated that there was an ambient noise level established if the noise level went over 75 decibels. There was no plan required as the ordinance already had a standard decibel level. He continued with notable differences in some of the exhibits. The term "on-site storage" related to the storing of non-drilling items on the site. Council Member Gregory stated that it appeared that all other cities prohibited on-site storage but Denton was not. Groth stated that it was already in the current ordinance. Council Member Gregory suggested considering adding an on-site storage prohibition to the proposed ordinance and not just have it in the current ordinance. Council Member Roden suggested adding a column with the Denton proposed ordinance changes. Council Member Engelbrecht aslced about the landscape timing as he thought other city regulations had it varied for the time of the year. Groth stated that it was based on a certain development trigger such as a certificate of occupancy. A deternunation would be needed if the trigger did not start the time line. Mayor Burroughs suggested tying it to the issuance of a drilling pernut unless the time of year was not appropriate. Council Member Engelbrecht asked about irrigation requirements. Groth stated that those were located in other city provisions. Some regulations might not apply due to the lacic of services in some areas. Council Member Engelbrecht suggested separate requirements for the type of development or have native plants required. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�' a� ��' u',° ; Groth stated that wording could include "landscaping where applicable". The next notable difference was fracturing and frac pits. Council Member Gregory aslced if the new draft excluded frac pits inside the city limits. Groth stated that the proposed draft had provisions for when the well was developed. Council discussed the use of frac pits and whether they were needed for fracturing. Mayor Burroughs suggested creating another chart for a comparison of items of more concern rather than an exclusion chart. The issue of a mud pit could be placed on that chart. The minority report and DAG recommendations could also be addressed. He suggested that if Council had a topic not brought out and it was not clear that there was an outcome, the council member could notify Groth to add it to the list and then notify the entire Council that it had been added. Groth continued with the notable differences which included multiple gas well pernuts, site development time linuts and emergency responder training. Mayor Burroughs stated that with multiple gas well permits, if the site that met all of the positives that it would be good to utilize multiple drilling from that one location. Encourage multiple gas well pernuts to get the drilling completed sooner. Council Member Gregory noted that three other cities had reduced enussions requirements while it appeared that Denton did not. He wanted to malce sure that the final draft would have those provisions. Mayor Pro Tem Kamp aslced about the emergency responder training and what the Fire Department felt about who would be trained. Groth stated that in his conversations with the Fire Department, they felt their personnel were already trained and that they were already participating in training opport�inities. Council Member Engelbrecht asked if anyone had addressed emergency responder equipment or supplies. He suggesting having the Fire Department come in for the next review to present information on what they plan to do with a potential well fire and how was that conducted. Council Member Gregory stated that he had received emails from the public about not having fracicing. He aslced Groth to explain fracicing. Groth stated that fracturing was an act�ial process during the preparation of a site. That process was 7-10 days after the well was drilled and had to occur during the daylight hours. If fracicing was prohibited, the well would not produce. Council Member Gregory aslced if the City could prohibit fracicing. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�'a��d'' �� City Attorney Burgess stated that fracicing was highly regulated with strong preemption issues. It was regulated by a state agency and not a city. Council Member Roden questioned where drilling fell in zoning categories and the provisions for requiring a specific use pernut for drilling. Groth stated that no other city used zoning to prohibit drilling. Other cities had provisions but not zoning regulations. Mayor Burroughs felt that if policymakers wanted to encourage drilling in a particular zoning area, it might be that regulations were easier in those locations. For example, if drilling was encouraged in industrial areas there might be less regulations to encourage drilling there over residential areas which nught have stricter regulations. Council Member Roden aslced if any of the cities had incentive programs apart from regulations to encourage best practices. Groth stated that he did not find any in Texas. Groth reviewed a table with summary of substantial items that were changed. Council requested that the list of summary of changes be put in the Council's drop box. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards 1. America Recycles Day Mayor Burroughs presented the proclamation for America Recycles Day. 2. Presentation of the Texas Association of Telecommunications Officers and Advisors (TATOA) awards Billy Matthews stated that Public Communications had just received eight awards from the Texas Association of Telecommunications Officers and Advisors. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., �f"' a� � � d'; �7 3. CITIZEN REPORTS There were no citizen reports. 4. CONSENT AGENDA Mayor Burroughs stated that he would lilce to pull Item M for separate consideration for a staff presentation. Mayor Pro Tem Kamp motioned, Council Member Engelbrecht seconded to adopt the Consent Agenda and accompanying ordinances and resolutions with the exception of Item M and with the substitute ordinance for Item T. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden —"aye". Motion carried unanimously. Resolution No. 2012-037 A. Consider approval of a resolution revising Administrative Policy No. 403.07 "Debt Service Management" and providing for an effective date. The Audit/Finance Committee recommends approval (3-0). Ordinance No. 2012-295 B. Consider adoption of an ordinance of the City of Denton, Texas to declare the intent to reimburse expendit�ires from the unreserved fund balance of the General Fund with Certificates of Obligation with an aggregate maximum principal amount equal to $2,961,218 to facilitate the purchase of General Fund vehicles and equipment, and providing an effective date. Ordinance No. 2012-296 C. Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract with the Houston-Galveston Area Council of Governments (H-GAC) for the acquisition of four ambulances for the City of Denton Fire Department; and providing an effective date (File 5080- Purchase of Four Frazer Type I Ambulances awarded to Knapp Chevrolet in the amount of $636,500). Ordinance No. 2012-297 D. Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the Buy Board Cooperative Purchasing Networlc for the acquisition of four dump tnicics for the City of Denton Streets Department; and providing an effective date (File 5098-Purchase of Four Dump Tnicks for City of Denton Streets Department awarded to Rush Tnlcic Center, Crane in the amount of $534,108). � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., n .�"�� a�. ��' d��;° � Resolution No. R2012-038 E. Consider approval of a resolution nonunating members to the Appraisal Review Board of the Denton Central Appraisal District; and declaring an effective date. Ordinance No. 2012-298 F. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a grant agreement for Four Hundred Seventy-Two Thousand One Hundred Forty Dollars And Fifteen Cents ($472,140.15) from the Texas Department of Housing and Community Affairs Emergency Solutions Grant Program (previously lcnown as Emergency Shelter Grant program) and talce all other actions necessary; and providing for an effective date. Ordinance No. 2012-299 G. Consider adoption of an ordinance of the City of Denton, Texas authorizing the expenditure of funds for payments by the City of Denton for electrical energy transmission fees to those cities and utilities providing energy transnussion services to the City of Denton; and providing an effective date (File 5083- Electrical Energy Transnussion Fees for fiscal year 2012-13 in the total amount of $1,677,079.53). The Public Utilities Board recommends approval (6-0). Ordinance No. 2012-300 H. Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute contracts through the State of Texas Smart Buy Program and the Houston Galveston Area Council of Governments (H-GAC) for the acquisition of a Utility Tnick and Fluid Excavator for the City of Denton Wastewater Department; and providing an effective date (File 5081-Purchase of Utility Tnicic from Sam Pacic's Five Star Ford (Texas Smart Buy) in the amount of $73,608.88 and Fluid Excavator (H-GAC) from EKA, Inc. in the amount of $69,505.01 for a total award of $143,113.89. The Public Utilities Board recommends approval (6-0). Ordinance No. 2012-301 L Consider adoption of an ordinance accepting competitive bids by way of an interlocal cooperative purchasing program participation agreement with the Lower Colorado River Authority pursuant to Section 271.102 of the Texas Local Government Code, for the purchase of high voltage circuit brealcers; providing for the expenditure of funds therefor; providing an effective date (File 5095- Interlocal Cooperative Purchasing Program Participation Agreement for the purchase of electrical equipment with the Lower Colorado River Authority awarded to Siemens Energy, Inc. in the estimated amount of $4,712,560). The Public Utilities Board recommends approval (6-0). Ordinance No. 2012-302 J. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a contract by and between the City of Denton, Texas and G2 Electrical Testing and Consulting, LLC., a Texas Limited Liability Corporation, for highly technical personal services related to the protection and control of electric � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�' a� ��' u" �� infrastnicnire to be rendered to the City of Denton, Texas (Denton Municipal Electric); authorizing the City Manager to expend funds therefor in accordance with the contract; and providing an effective date (File 5058-G2 Electrical Testing and Consulting, LLC. in an amount not-to-exceed $1,035,573). The Public Utilities Board recommends approval (6-0). Ordinance No. 2012-303 K. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement by and between the City of Denton, Texas and Black & Veatch, Inc. for electric design and engineering services for a relay coordination study incident to the Denton Municipal Electric Transnussion System; authorizing the expenditure of funds therefor; providing an effective date (File 5089-in an amount not-to-exceed $564,000). The Public Utilities Board recommends approval (6-0). Ordinance No. 2012-304 L. Consider adoption of an ordinance accepting competitive proposals and awarding an initial one (1) year contract with the option to extend for four (4) additional one (1) year periods for the sale of City of Denton scrap electrical wire, metals, electric meters and water meters to Fulton Supply and Recycling, Inc.; and providing an effective date (RFP 5022-awarded to Fulton Supply and Recycling per the contract pricing shown on Exhibit A). Ordinance No. 2012-306 N. Consider adoption of an ordinance of the City of Denton, Texas, authorizing the City Manager or his designee to execute a Contract of Sale (herein so called), as attached to the ordinance and made a part thereof, by and between the City of Denton (the "City"), and CS Residential, Inc. (the "Seller"), contemplating the sale by Seller and purchase by City of a 1.926 acre tract of land, for the purchase price of Two Hundred Twenty Eight Thousand Six Hundred Fifty Two Dollars and No Cents ($228,652.00), said real property being generally located along the south line of Virginia Circle, south of University and located in the R.B. Longbottom Survey, Abstract Number 775, Denton County, Texas; authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transactions contemplated by the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. (69kV Transnussion Line Re-build Project Parcel 27 Purple Route) The Public Utilities Board recommends approval (5-0). Resolution No. R2012-039 O. Consider approval of a resolution of the City of Denton, Texas, approving the implementation of a public involvement process for upconung Denton Municipal Electric Capital Improvement Projects for the siting of electric substations and the routing of electric transmission lines; and providing an effective date. The Public Utilities Board recommends approval (5-0). � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�'a��d'' � �:� Resolution No. R2012-040 P. Consider approval of a resolution allowing the Denton Community Theatre to be the sole participant allowed to sell alcoholic beverages at the Beaujolais and More on November 15, 2012, upon certain conditions; authorizing the City Manager or his designee to execute an agreement in conformity with this resolution; and providing for an effective date. Staff recommends allowing alcohol to be sold in the Civic Center for the Beaujolais event. Approved the minutes listed below. Q. Consider approval of the minutes of: October 16, 2012. October 29, 2012 Ordinance No. 2012-307 R. Consider adoption of an ordinance approving a pipeline crossing contract by and between the City of Denton, Texas and the Kansas City Southern Railway Company relating to the location of a City water pipeline within railroad right-of- way, located immediately south of said railroad right-of-way's intersection with US Highway 380 at nule post 105.88, alliance subdivision within the county and City of Denton Texas; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (7- 0). Ordinance No. 2012-308 S. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Children's Advocacy Center for Denton County, Incorporated for providing aid to the City of Denton Police Department in the investigation of child abuse cases; providing client and clinical services to victims of child abuse and non-offending fanuly members; providing for the expendinire of funds therefor; and providing for an effective date. Ordinance No. 2012-309 T. Consider adoption of an ordinance of the City of Denton, Texas, authorizing the City Manager, or his designee, to execute a Contract of Sale (herein so called), as attached hereto and made a part hereof as Exhibit "A", by and between the City of Denton (the "City"), and Unified Aircraft Service, Inc., a California Corporation (the "Seller"), contemplating the sale by Seller and purchase by City of a 5.140 acre tract of land more or less, being generally located in the 650 blocic of Mayhill Road and lcnown as Lot 1, Blocic A, of Mayhill Road Addition, an Addition to the Extraterritorial Jurisdiction of the City of Denton, Denton County, Texas (the "Property Interests"); for the purchase price of Two Million Seven Hundred Ninety Five Thousand Dollars and No/100 dollars ($2,795,000.00); authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transaction contemplated by the contract of sale; authorizing the expenditure of funds therefor; authorizing, to the extent applicable, relocation expenditures; and providing an effective date. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�'a��d'' � � Ordinance No. 2012-310 U. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager, or his designee, to execute a Purchase Agreement (herein so called), as attached to the ordinance and made a part thereof as Exhibit "A", by and between Joab Partners, L.P., a Texas linuted partnership, as Owner (herein so called), and the City of Denton, Texas, as Buyer, regarding the Sale and Purchase of fee simple to a 0.58 acre tract situated in the James L. Harris Survey, Abstract No. 555 and the William Roarlc Survey, Abstract No. 1087 and located in the City of Denton, Denton County, Texas, as more particularly described in the Purchase Agreement, located generally northeast of the intersection of South Bonnie Brae Street and Vintage Parlcway (the "Property Interests"), for the purchase price of Eighty Six Thousand, Six Hundred Thirteen Dollars and No Cents ($86,613.00), and other consideration, as prescribed in the Purchase Agreement; authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transaction contemplated by the Purchase Agreement; authorizing the expenditure of funds therefore; and providing an effective date. (Bonnie Brae Widening and Improvements project - Parcel 58) Ordinance No. 2012-311 V. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager, or his designee, to execute a Purchase Agreement (herein so called), as attached to the ordinance and made a part thereof as Exhibit "A", by and between Joab Partners, L.P., a Texas linuted partnership, as Owner (herein so called), and the City of Denton, Texas, as Buyer, regarding the Sale and Purchase of fee simple to a 0.73 acre tract situated in the James L. Harris Survey, Abstract No. 555, the J. Edmonson Survey, Abstract 401 and the William Roarlc Survey, Abstract No. 1087 and located in the City of Denton, Denton County, Texas, as more particularly described in the Purchase Agreement, located generally southeast of the intersection of South Bonnie Brae Street and Vintage Parlcway (the "Property Interests"), for the purchase price of Fifty Three Thousand, Three Hundred Eighty Seven Dollars and No Cents ($53,387.00), and other consideration, as prescribed in the Purchase Agreement; authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transaction contemplated by the Purchase Agreement; authorizing the expenditure of funds therefore; and providing an effective date. (Bonnie Brae Widening and Improvements project - Parce160) Ordinance No. 2012-312 W. Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple to a 0.121 acre tract located in the M.E.P. & P.R.R. Co. Survey, Abstract Number 927, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A", attached to the ordinance, located generally in the 200 block North Mayhill Road (the "Property Interests"), for the public use of expanding and improving Mayhill Road, a municipal street and roadway; authorizing the City Manager or his designee to malce an offer to (1) D.J. Halsey or Katherine H. Halsey, Tnistees, or their successors in tnist, under the Don and � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., ,ti @�'a��d.. � � Kay Halsey Living Tnist (the "Owner"); (2) successors in interest to the owner of the Property Interests; or (3) any other owners of the Property Interests, as may be applicable, to purchase the Property Interests for the Purchase Price of Thirty Four Thousand Nine Dollars and No Cents ($34,009.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement"), as attached to the ordinance and made a part thereof as Exhibit "B"; authorizing the expenditure of funds therefor; and providing an effective date. (Mayhill Road Widening and Improvements proj ect - Parcel M077) Ordinance No. 2012-313 X. Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple to a 0.586 acre tract located in the Morreau Forrest Survey, Abstract Number 417, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A", attached to the ordinance, located generally in the 600 blocic of South Mayhill Road (the "Property Interests"), for the public use of expanding and improving Mayhill Road, a municipal street and roadway; authorizing the City Manager or his designee to malce an offer to (1) Miles Land Company, Inc., a Texas corporation (the "Owner"); (2) successors in interest to the Owner to the Property Interests; or (3) any other Owner's of the Property Interests, as may be applicable, to purchase the Property Interests for the Purchase Price of Sixty Three Thousand Six Hundred Ninety One Dollars and No Cents ($63,691.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement"), as attached to the ordinance and made a part thereof as Exhibit "B"; authorizing the expenditure of funds therefore; and providing and effective date. (Mayhill Road Widening and Improvements proj ect - Parcel M 104) Ordinance No. 2012-314 Y. Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple to a 0.156 acre tract located in the Morreau Forrest Survey, Abstract Number 417, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A", attached to the ordinance, located generally in the 600 blocic of South Mayhill Road (the "Property Interests"), for the public use of expanding and improving Mayhill Road, a municipal street and roadway; authorizing the City Manager or his designee to malce an offer to (1) Kulcahi Corporate Solutions, Inc., a Texas corporation (the "Owner"); (2) successors in interest to the Owner to the Property Interests; or (3) any other Owner's of the Property Interests, as may be applicable, to purchase the Property Interests for the Purchase Price of Twenty Five Thousand Seven Hundred Three Dollars and No Cents ($25,703.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement"), as attached ordinance and made a part thereof as Exhibit "B"; authorizing the expenditure of funds therefore; and providing and effective date. (Mayhill Road Widening and Improvements proj ect - Parcel M105) Council considered Item M. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., � �f"'a��d'; � . Ordinance No. 2012-305 M M Consider adoption of an ordinance of the City of Denton, Texas amending Chapter 13 (Food and Food Service Establishments) of the City of Denton Code of Ordinances by deleting Articles I, II, III, IV, V and VI in their entirety; adopting the Texas Food Establishment Rules promulgated by the Texas Department of State Health Services and malcing related deletions and amendments thereto; providing a severability clause; providing a savings clause; providing for a penalty not to exceed $2,000 for violations of this ordinance; and providing for an effective date. Kurt Hansen, Building Official, stated that the following changes were made to the proposed ordinance following Monday's work session: (1) Community marlcet definition was amended to allow for agricultural products produced by farmers, (2) a section was deleted regarding a food handler card as it was a duplicate section, (3) community based events were added to temporary events, (4) the different classes of mobile food establishments were added plus the food items for Class IV were added to be allowed in Class III, (5) temporary food permits were added bacic in community based events, and (6) a fee for the mobile Class IV was added. Council Member Rode aslced about the definition of "community based event" and whether that was a single event or celebration. There were community based events that were held more than once a year such as First Fridays or quarterly events. He suggested talcing out the last line of the definition to allow for such events. Hansen stated that the wording was from the State Food Establishment niles and probably should remain in the wording. Council Member Roden stated that he wanted to capnire certain events that already happened or might happen. He questioned if Council wanted to change the wording or malce community based events only once a year events. Hansen stated that the City could have as many City sponsored events as it wanted to support. City Manager Campbell suggesting adding "continuous" to the wording. Council Member Gregory agreed with changing the wording or also suggested lceeping the wording the same for the six month trial period and changing it if a problem was presented during that time frame. City Manager Campbell stated that staff understood the intent of the Council and suggested leaving it as it was to see if a problem came up and if sq then deternune on how to amend the wording. Mayor Burroughs suggested staff keep tabs independently on items that nught be of concern for future Council discussion. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�'a��d'' �,::n Council Member Engelbrecht stated that in the event there was a problem with only one area, staff could present the item to Council similar to a noise exception or individual beverage pernut request. That would be a one-time approval until the entire ordinance was changed. Hansen stated that there would always be an opportunity to amend the ordinance. Council Member Gregory motioned, Mayor Pro Tem Kamp seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden — "aye". Motion carried unanimously. 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. Consider nominations/appointments to: 1. Human Services Advisory Comnuttee 2. Parks, Recreation and Beautification Board Council Member King nominated Ira Weinstein to the Human Services Advisory Committee and Council Member Engelbrecht nominated Maria Renner to the Parks, Recreation & Beautification board. Council Member King motioned, Mayor Pro Tem Kamp seconded to approve the nominations. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden — "aye". Motion carried unanimously. First Readin� B. Consider adoption of an ordinance granting to Oncor Electric Delivery Company LLC a non-exclusive franchise for the purpose of constnicting, maintaining, and using an electric delivery utility system in the City of Denton; regulating the constniction worlc done by the grantee in the City; requiring j oint use of poles, trenches, and conduits in certain instances; prescribing the relationship and relative rights between grantee and others with respect to constniction in the City and location of facilities; prescribing the duties, responsibilities, and nile malcing authority of the City Manager and the City with respect to administration of this franchise; requiring certain records and reports and providing for inspections and location of principal offices; reserving to the governing body of the City the right to set charges and rates of grantee; providing the rights and responsibilities of the governing body in setting the rates; providing for enforcement of the franchise; prescribing the compensation to the City from the grantee for the franchise privilege; providing for assignment of the franchise; providing indemnity of the City and its employees; providing for good faith effort; providing for insurance; setting forth the term of the franchise and its renewal; repealing Ordinance No. 2001-405 as amended; providing for acceptance of the franchise by grantee; finding that the meeting at � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., ,ti @�'a��d.. � � which this ordinance is passed is open to the public; providing for severability; and providing an effective date. (First Reading) Tony Puente, Assistant Director of Finance, stated that this would be a ten year agreement renewal of Oncor's franchise agreement which was similar to the previous agreement. The proposed agreement consolidated several settlement agreements over the past 10 years. The fee to customers would remain the same. The Charter required three readings of a franchise ordinance. The agreement would go into effect after acceptance by Oncor after the third reading. Council Member Engelbrecht aslced where the public could go to get a full reading of the agreement. Puente stated that a copy would be on file in the City Secretary's Office. No vote was taken on this item at this time. 6. PUBLIC HEARINGS Ordinance No. 2012-315 A. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending Ordinance No 99-205 to amend the concept plan for 27.945 acres located within Planned Development 174 (PD-174) zoning district; generally located on the north side of Crawford Road, and the west side of John Paine Road, being north and west of the Town of Argyle, in the City of Denton, Denton County, Texas; providing for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a severability clause and an effective date. (PDA 12-0001) The Planning and Zoning Commission recommends approval (7-0). Mayor Burroughs noted that Items A and B on the public hearings would be considered at the same time. Brian Langley, Interim Director of Planning and Development, presented information on A and B which was for St. Marlc's Catholic Church. Item A was proposing to reclassify one of the two school sites in the Planned Development and a portion of an area designated for single family residential uses to a church and education facility land uses. The applicant was proposing specific development standards and permitted uses for the proposed church site. Changes included modifications to the sign plan and landscape plan. Building elevations and designs were shown which would be the act�ial constniction of the church facility. The Planning and Zoning Commission recommended approval of the concept plan as well as the detailed plan with the following conditions: (1) the improvements to John Paine Road must be completed with Phase I on the development and (2) if Education Drive was not abandoned, the sign proposed at the intersection of Meandering Creelc and Education Drive would have to be moved out of the right-of-way. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�'a��d'' � �� Council Member Gregory noted that the notification map displayed at the meeting was different than the one in the agenda bacictip. The opposition notice was not shown in the bacictip materials. Locldey stated that the opposition was not in the city limits. Council Member Engelbrecht stated that the applicant had requested that the improvements to John Paine Road be delayed until Phase II. He aslced for a description of Phases I and II. Locldey stated that Phase I included the Administration/PAC building, and the Religious Education building. The sanctuary and future phases to the north were in Phase IL Staff was requesting the improvements in Phase I so development did not get out in front of the infrastnicture. Council Member Engelbrecht stated that there were some issues with the variance in terms of a cul-de-sac and the requested use of interior parlcing for that. He questioned if the Planning and Zoning Commission recommended that variance. Locldey stated that the Planning and Zoning Comnussion did recommend the variance. Mayor Burroughs noted that John Paine Road currently was not a through road. Council Member Engelbrecht stated that it connected to Johnson to the north but was a gravel road and not improved. The Mayor opened public hearings for Items A and B. Larry Reichhart, Springbroolc Planning Group, presented the details of the proposaL It was their request to defer the improvements for John Paine Road to Phase II which was the constniction of the sancniary. Mayor Pro Tem Kamp aslced about the corrected dimensions on the signs that were proposed. Council Member Engelbrecht questioned if the Adnunistration/PAC and Education Building were schools. Reichhart confirmed that they were not for a school. Council Member Engelbrecht questioned if the neighborhood would be allowed to use some of the church's meeting space if it needed to hold a neighborhood meeting. Reichhart felt that would be agreeable to the developer. Council Member Roden aslced about the time line from Phase I to Phase II. Reichhart stated that within 5 years Phase II would be started. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�'a��d'' � � Council Member Roden aslced for a clarification on the statement that if portions of John Paine Road were improved, it would have to be buttoned. Reichhart stated that because the road did not connect, it would be controlled by Argyle. The road would have to be striped or buttoned to get drivers back into the correct lane because it would not go anywhere. According to their traffic impact analysis, the proposal would have no impact on the road. Mayor Burroughs asked about the amount of traffic on John Paine Road and how congested was it. Reichhart stated that the road was designed to service the entire subdivision. It was designed to handle pealc traffic. Council Member Engelbrecht questioned that to put in the lane would not help the intersection. Reichhart stated that the intersection was the problem and that the lane would not help that. The Mayor closed the public hearing. City Attorney Burgess noted that the current ordinance for Item B required the improvement to John Paine Road during Phase L If Council wanted to postpone the improvement to Phase II the motion would have to indicate that. Mayor Burroughs also noted that the issue of the correct signage proportion would have to be addressed in the motion. Mayor Pro Tem Kamp motioned, Council Member King seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden — "aye". Motion carried unanimously. Ordinance No. 2012-316 B. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending Ordinances 99-205 and 99-350 to amend the detailed plan for 108.3 acres located within Planned Development 174 (PD-174) zoning district; generally located on the north side of Crawford Road, and the west side of John Paine Road, being north and west of the Town of Argyle, in the City of Denton, Denton County, Texas; providing for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a severability clause and an effective date. (PDA 12-0002) The Planning and Zoning Commission recommends approval (7-0). The public hearing for this item was held with Item A. Council Member Engelbrecht motioned, Council Member King seconded to adopt the ordinance with the movement of the sign on Education Drive, the dimensions of the sign as noted to the � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., �f"'a��d'; � � correct proportions and the completion of John Paine Drive to be done in Phase IL On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden — "aye". Motion carried unanimously. Ordinance No. 2012-317 C. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending an overlay district and approving an amendment to the First United Methodist Church Special Sign District for 4.141 acres of land which is located at 201 S. Locust Street and platted as Lot 1R, Blocic 23, Old Town Denton Addition, in the City of Denton, Denton County, Texas; providing for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a severability clause and an effective date. (SD 12-0001) The Planning and Zoning Commission recommends approval (6-0-1). Bryan Locldey, Interim Director of Planning and Development, stated that the First United Methodist Church was proposing to amend the approved Special Sign District to permit the installation of a non-illununated wall sign to the western building elevation of the existing church. This sign was not included in the original approved sign plan for the district. It would also allow for banners along Locust and Sycamore and in their parlcing lot. Long range planning would include the use of a LED monument sign. The Planning and Zoning Comnussion recommended approval. The Mayor opened the public hearing. No one spolce during the public hearing. The Mayor closed the public hearing. Mayor Pro Tem Kamp asked about the vote by the Planning and Zoning Comnussion. Locldey stated that one member abstained due to a family member owning property within 200 feet. Council members who were members of the church could vote on the proposal and did not have to abstain. Council Member Engelbrecht motioned, Mayor Pro Tem Kamp seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden — "aye". Motion carried unanimously. Ordinance No. 2012-318 D. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a initial zoning designation of Industrial Center General (IC-G) zoning district classification and use designation, on 25.03 acres of land located east of Corbin Road and south of Shelby Lane; providing for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�' a� ��' u" � �� severability clause and an effective date. (Z 12-0008) The Planning and Zoning Commission recommends approval (7-0). Bryan Locldey, Interim Director of Planning and Development, presented the details of the item. This was a request to rezone the Corbin Business Park to Industrial Center General. The current zoning was Rural Residential SX which was the initial zoning from annexation. The proposed zoning would be compatible to the surrounding property and met the provisions for the zoning amendment. It was anticipated that the site would be developed for industrial uses. The Planning and Zoning Commission recommended approval. The Mayor opened the public hearing. No one spolce during the public hearing. The Mayor closed public hearing. Council Member Engelbrecht motioned, Council Member King seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden — "aye". Motion carried unanimously. 7. CITIZEN REPORTS There were no citizen reports. 8. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be talcen, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a renunder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Council Member Watts requested an update on the study for a crosswallc signal at the intersection of Welch and Eagle. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., ,ti @�'a��u.. ��.� Mayor Pro Tem Kamp noted the Salvation Army bell ringing ceremony to the held at the Campus Theatre. Council Member Engelbrecht noted that DentonRadio.com was new and was now providing music for the community. Mayor Burroughs noted that Council needed to return to SB regarding the Oncor franchise agreement to consider a vote on the item. B. Consider adoption of an ordinance granting to Oncor Electric Delivery Company LLC a non-exclusive franchise for the purpose of constnicting, maintaining, and using an electric delivery utility system in the City of Denton; regulating the constniction worlc done by the grantee in the City; requiring j oint use of poles, trenches, and conduits in certain instances; prescribing the relationship and relative rights between grantee and others with respect to constniction in the City and location of facilities; prescribing the duties, responsibilities, and nile malcing authority of the City Manager and the City with respect to administration of this franchise; requiring certain records and reports and providing for inspections and location of principal offices; reserving to the governing body of the City the right to set charges and rates of grantee; providing the rights and responsibilities of the governing body in setting the rates; providing for enforcement of the franchise; prescribing the compensation to the City from the grantee for the franchise privilege; providing for assignment of the franchise; providing indemnity of the City and its employees; providing for good faith effort; providing for insurance; setting forth the term of the franchise and its renewal; repealing Ordinance No. 2001-405 as amended; providing for acceptance of the franchise by grantee; finding that the meeting at which this ordinance is passed is open to the public; providing for severability; and providing an effective date. (First Reading) Council Member King motioned, Mayor Pro Tem Kamp seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Watts, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden — "aye". Motion carried unanimously. Council returned to the regular agenda order. 8. CONCLUDING ITEMS B. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. Mayor Burroughs noted that Council would return to the Closed Session to complete the items not discussed earlier. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� "��:� � �., @�'a��d.° � � Following the completion of the Closed Session, the Council convened back into Open Session and with no further business, the meeting was adj ourned. MARK A. BLJRROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES November 13, 2012 After deternuning in Open Session that a quonim was present, the City Council convened in a Closed Meeting on Tuesday, November 13, 2012 at 3:00 p.m. in the City Council Work Session Room at City Hall. PRESENT: Council Member King, Council Member Gregory, Council Member Engelbrecht, and Council Member Roden ABSENT: Council Member Watts, Mayor Pro Tem Kamp, Mayor Burroughs Council Member Engelbrecht called the meeting to order, announced that a quonim of the Council was present and that Council would be going into a Closed Session. 1. Closed Meeting A. Consultation with Attorneys - Under Texas Government Code Section 551.071; and Deliberations regarding Real Property - Under Texas Government Code Section 551.072. 1. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the A.N.B. Tomplcins Survey, Abstract Number 1246, Denton County, Texas (located generally in the 2100 blocic of South Bonnie Brae Street), within the City of Denton, Texas. Consultation with the City's attorney's regarding legal issues associated with the acquisition or condemnation of tracts referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceedings or potential litigation. B. Consultation with Attorneys - Under Texas Government Code Section 551.071. 1. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with Phase I and proposed Phase II Gas Well Ordinance regulation of gas well drilling and production within the City Limits and the extraterritorial jurisdiction, including Constitutional linutations, stanitory limitations upon municipal regulatory authority, moratorium on drilling and production and claims associated therewith, statutory preemption and/or impacts of federal and state law and regulations as it concerns municipal regulatory authority and matters relating to enforcement of the ordinance. Mayor Burroughs and Mayor Pro Tem Kamp arrived during the Closed Session discussions. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� , ��:� � � ,ti @�'a��d.. � Council recessed from the Closed Session at 5:25 p.m., convened in Open Session and considered the following in a Special Called Session. Ordinance No. 2012-319 1. Consider adoption of an ordinance of the City of Denton, Texas to declare the intent to reimburse expenditures from the unreserved fund balance of the General Fund with Certificates of Obligation with an aggregate maximum principal amount not to exceed $200,000 to allow for architectural services and Leadership in Energy and Environmental Design ("LEED") certification of the Linda McNatt Animal Care and Adoption Center Facility, and providing an effective date. Captain Scott Fletcher, Denton Police department, stated Item #1 dealt with the funding of the Linda McNatt Animal Care and Adoption Center facility with Certificates of Obligation. The next Capital Improvement Program bond sale was scheduled to occur in Apri12013. Staff would like to proceed with the design of the facility prior to the sale of the Certificates of Obligation. To accomplish this, staff was recommending that these expenses be paid out of the Unreserved Fund Balance of the General fund. With the approval of the ordinance, these funds would be reimbursed once the Certificates of Obligation were sold. Item #2 dealt with an amendment to the architect contract for the Animal Services building for LEED certification. Staff was loolcing at achieving the LEED Bronze certification. Currently the constniction documents had 30 LEED points with 40 points needed for the Bronze certification. It was felt that additional points could be achieved through minimal changes to the drawings, comprehensive changes to the General Requirements and specifications of the constniction contract, and the necessary LEED consultant proj ect management. The addition of LEED Certification was estimated to require a delay of approximately two months for design elements and constniction. Staff discussed the issue with the Committee on the Environment at their November 5, 2012 meeting with the Comnuttee voting to recommend the pursuit of LEED certification. Mayor Pro Tem Kamp stated that past councils, this council and the City desired to have sustainable buildings. LEED certification was mentioned in the 2008 Master Plan for the shelter and was discussed in joint building comnuttee discussions. When the project was made smaller, LEED certification was one of the first options that went away due to the funding. She did not see that it had been left out of the contract at that time. It was uncertain at this point if the addition of the LEED certification would result in a delay of the facility. There were funds available to pursue this certification. The Committee on the Environment asked Council to approve both of these items Mayor Pro Tem Kamp motioned, Council Member King seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden —"aye". Motion carried unanimously. Council Member Engelbrecht requested a report on the cost of the LEED certification once the proj ect was completed. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� , ��:� � � � @�' a� ��' u',° . Ordinance No. 2012-320 2. Consider adoption of an amendment an ordinance of the City of Denton, Texas amending a Professional Services Agreement (PSA) with Connolly Architects and Consultants for design services and constniction oversight for the Linda McNatt Animal Care and Adoption Facility entered into on January 10, 2012; and providing for an effective date. Mayor Pro Tem Kamp motioned, Council Member Gregory seconded to adopt the ordinance. On roll call vote: Council Member King, Council Member Gregory, Council Member Engelbrecht, Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden —"aye". Motion carried unanimously. 3. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upconung meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be talcen, to include: expressions of thanks, congranilations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a renunder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Council did not have any items. Mayor Pro Tem Kamp left the meeting. Following the completion of the Special Called Session at 5:34 p.m., the Council ret�irned to the Closed Session to continue discussion of the items listed. Following the completion of the Closed Session, Council convened in Open Session at 6:52 p.m. to consider the 2"a Tuesday Session Items. 1. Receive a report, hold a discussion, and give staff direction regarding a project subnuttal for the 2012 Texas Transportation Enhancement Program Call for Proj ects. Jim Coulter, Director of Water Utilities, stated that staff was bringing forward a grant application for the TxDOT Transportation Enhancement Program. To be eligible for consideration, all proj ects had to demonstrate a relationship to the surface transportation system and incorporate at least one of 12 categories of proj ects. Staff worked with the Parks Department to determine a project to subnut in the Facilities for Pedestrian and Bicycles category. Eighty percent of the constniction costs were reimbursable and the City's share of the project had to be cash, not in- lcind services. Engineering and right-of-way acquisition were not reimbursable. The proposed project would involve city parlcs, streets, state roadways and state property. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� , ��:� � � @�'a��d:' ,:n Emerson Vorel, Director of Parlcs and Recreation, presented the details of the project. The Evers Parlc Bridge and Trail Proj ect would connect Evers Parlcs, Evers Parlc Elementary School, Stricldand Middle School and the North Branch Library to the McKamy Evers Estate and North Point subdivisions to the north. Currently there was no direct linlcage of those areas without traveling along FM 2164 to the east. The project would also extend the hard surface trail north to the LTNT Discovery Center and North Lalces Parlc, and south to connect with the planned bicycle lanes on Windsor and Hinlde Streets and the existing Cooper Creelc Trail. Staff was still developing proj ects costs but it appeared that the proj ect would be in the $1.25 million range. Council Member Roden aslced if Vorel was aware of the existing trail at Discovery Parlc. Vorel indicated that he was not familiar with that trail. Council Member Roden said he would get Vorel some information on the trail. Council Member Gregory directed staff to move forward with project and to bring a ratification resolution to the November 19, 2012 Council meeting to attach to the proposal. 2. Receive a report, hold a discussion, and give staff direction regarding the Phase II amendments of the City's Gas Well Ordinance. Darren Groth, Gas Well Administrator, presented an update on the proposed ordinance. The presentation would contain bacicground information, AIS exhibits and emergency response information. Background information — At the November 6th Work Session Council received a briefing regarding previous actions and meetings, Phase II revision processes, future timeline and a description of exhibits to the baciciip material. During Work Session Council requested staff to provide additional information which was included in the AIS Exhibits. Exhibit 1 was revised to include current and proposed provisions, Exhibit 2 compared items presented in the DAG Report and the Minority Report, Exhibit 3 was a comparison table of municipal bonding amounts, and Exhibit 4 was a municipal comparison table of required insurance amounts. Council Member King suggested alternative amounts for the liability insurance and worlcers compensation insurance in order to provide better coverage. Council Member Roden stated that he did not see Pre-Kindergarten listed as a protected use. Groth stated that there was a similar provision in the zoning provisions which was used instead of malcing another category. Aaron Leal, Deputy City Attorney, stated that additional wording could be added to include preschool and lcindergarten. Council Member Gregory suggested an overall loolc at expanding that definition for the whole Denton Development Code to include pre-lcindergarten or nursery schools and community colleges. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� , ��:� � � @�' a� ��' u',° ; Council Member Roden suggested including universities and colleges and questioned if dornutories should be included. Council Member Engelbrecht suggested also loolcing at other large concentrations of people. Groth stated that the protected use category was for more receptive receptors such as young children. Council Member Roden questioned the definition section regarding habitable stnicture verses dwelling. Groth stated that a change could be made in order to be consistent with matching definitions. Council Member Roden noted that public libraries and public parlcs were included but there were other sinular uses such as public pools, a senior center, recreation centers, city halls, public transit facilities that nught fall under a similar framework for protected uses. Groth stated that suggestion could be added to the Items to Consider matrix. Mayor Burroughs stated that the key would be to identify the purposes of the protected use and the city's ability to regulate that usage. He suggested broader bracicets and tie more into the concept of why that use was being protected rather than a detailed list of examples. He did not want this to be an exhaustive list. Council Member Gregory stated that he had several items for staff to worlc on: (1) cathodic protection devices to prohibit degradation of piping in the well which nught damage city nearby city assets, (2) storm water issue in terms of contanunated water going through a well site and depositing contaminants on nearby soil and damaging that area, (3) require some type of a plan that would prohibit or restrict the pollution of the soils in or around the drilling site, (4) roads and driveways associated with the drilling sites in terms of subjecting the development to the same lcinds of requirements such as curb cuts and access so as to not cause damage to current roadways with mud and gravel. Mayor Burroughs felt that if permanent roadways were added out in vacant areas there nught be an effect on water movement and cause unintended consequences. Restoration of the land would be difficult to do with a permanent roadway as it was difficult to undo. Council Member Gregory stated that on one hand it appeared that gas well developers should prepare a site lilce any other developer in the city and be held accountable lilce other developers. City tnicics were washed before leaving the landfill to lceep City roads clean and he felt that should happen with the gas well areas. On the other hand it might be more appropriate to have a certain amount of the roadway bacic towards the drilling site to be more permanent or have an area to clean off the tnicks. A gas well should not have a negative impact on the roads when other areas were not allowed to do that. Groth stated that there was a TxDOT permit for a temporary roadway with a mud shalcer. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� , ��:� � � @�'a��d'' �� Council Member Gregory stated that he wanted to lceep dirt and dust off the roadway. Perhaps a standard would be to pave the entire roadway if the well was within a certain amount of distance from a residence. Council Member King suggested giving a consideration for a certain time frame to do any paving as not all wells were successful. Mayor Burroughs noted to keep in nund what could be regulated and what could not be regulated. Council Member King stated that a niral area might be different from a city setting. Council Member Roden questioned the measurement of setbacks as one measurement was indicated from the production site and another was from the center of the well rather than from the site. He wondered if the amount of setback was a completed issue or if Council would want to revisit that in Phase II. Council Member King stated that in Phase I, Council was trying to figure out a balance for the setbacics in order to not do a talcing. Council Member Gregory requested an updated comparison of protected uses compared to the other cities staff was loolcing at. Mayor Burroughs requested feedbacic on options for creating public notices of wells that were drilled within the City in order to provide individuals notice that they were in existence so that future owners had the ability to lcnow that they were there. He requested options for notices as the wells nught affect potential property values and would also help in malcing future decisions for protected uses. Council Member Engelbrecht asked if there was a process in the GIS system to track when a well was permanently closed. Groth stated that the proposal was to lceep the identification in the GIS system to tracic the locations. Council Member Roden stated that he was concerned about the provision to allow a reduction in the setbacic upon a notarized statement by the property owner. Some of those might be a public parlc or public school and then who would be the owners of those. Groth stated that an option might be to require a specific use permit made through the Planning and Zoning Comnussion to reduce the setbacics. Council Member Roden stated that he was concerned about dwellings that were not owner occupied. It was one thing if the property owner lived on the property and agreed to have the setbacic reduced and another if the property owner did not live on the property. If the property owner did not live on the property, he would be malcing a decision for other people. He felt it was not clear that the owners could do that. Another example would be an apartment complex with the owners living in another state. The current provision could allow the owners to reduce � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� , ��:� � � �f"' a� � � d'; �7 the setbacic provision and thus affect many people. He questioned if there was a way to change the ordinance so that would not occur. A provision that if a property owner was authorizing a reduced setbacic for a dwelling the property would have to be a permanent residence/owner occupied residence. Mayor Burroughs stated that ownership was the question as it nught affect value, future use, etc. It might be hard to define an occupant as a higher value than an owner. The drilling might not be noxious to some people and they would allow the owner to opt out of the setbacic. Deputy City Attorney Leal stated that an ordinance might be drafted through the zoning authority and a general process with certain actions for surrounding property owners and could be sent out to those surrounding properties. Mayor Burroughs suggested identifying a level of inspection over and above the one in Phase I in reference to items the City had authority to inspect and identify potential costs associated with that inspection. He also suggested a potential fee relief associated with best practices relief. Council Member Roden felt that more worlc was still needed on the sections dealing with pits, definitions, liners, etc. Ross Chadwicic, Fire Chief, presented information on a normal Fire Department response to a gas well incident. The first step was to start with prevention and malce sure the fire code was being followed. Every well in the City had a file at the Fire Department with certain requirements included. All of the documents in the file were scanned so that they would be available to the HazMat personnel. He stated that the Department had a high level of training already for most firefighters. Another consideration was the location of the incident. The Department was in the process of developing standard operating procedures to assist with these incidents. He felt that the Department currently had all of the equipment that would be needed in the case of a well fire. Mayor Burroughs stated that the gas well files needed to include what was in the individual pits. Chadwicic stated all that information was already in the files. There was a materials file sheet that listed all materials on site from the mud to fracicing materials, etc. By law the gas well company had to provide that information to the Fire Department for full disclosure for first responders. Council Member Gregory aslced if the site plan that was provided indicated that there fire lanes were available and sufficient access once inside the drilling site. Chadwicic stated that was also included. Council Member Gregory aslced how the Fire Department would access a location if the property were secure. Chadwick stated that they had tools that could provide access. Council Member Gregory aslced if there was a legal problem entering the property in an emergency. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� , ��:� � � n .�"�� a�. ��' d��;° � City Attorney Burgess stated that it would not be a problem due to the emergency situation. There was a distinction between just doing an inspection versus an emergency. Council Member Roden stated that he had aslced for a tally of how many old pad sites existed in the City. He was curious about how many projects were in the pipeline that could become vested proj ects. Groth stated that there could be infinite possibilities for the number of acres pernutted. He could give a number since 2010 but the number of possible wells for an 800 acre parcel would be difficult. Mayor Burroughs suggested separating specific sites and other platted areas from existing wells sites that had not been abandoned. With no further business, the meeting was adjourned at 8:00 p.m. MARK A. BLJRROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES November 19, 2012 After determining that a quonim was present, the City of Denton City Council convened in a Special Called Regular Meeting on Monday, November 19, 2012 at 10:00 a.m. in the Council Chambers at City Hall. PRESENT: Council Member Engelbrecht, Mayor Pro Tem Kamp, Council Member Gregory, Council Member Roden, Mayor Burroughs ABSENT: Council Member Watts, Council Member King 1. Pledge of Allegiance The Council and members of the public recited the Pledge of Allegiance to the U. S. and Texas flags. Ordinance No. 2012-321 2. Consider adoption of an ordinance canvassing election returns of the Bond Election held on November 6, 2012; and providing for an effective date. Bryan Langley, Assistant City Manager, stated voters had approved the bond pacicage which was on the November 6, 2012 ballot for $20 nullion for streets and $400,000 for public art. The purpose of this meeting was to formally canvass the election results. He indicated that a total of 32,331 ballots were cast with 25,254 in favor and 7,077 in opposition. Mayor Pro Tem Kamp motioned, Council Member Engelbrecht seconded to adopt the ordinance. On roll call vote: Council Member Engelbrecht, Mayor Pro Tem Kamp, Council Member Gregory, Council Member Roden, Mayor Burroughs —"aye". Motion carried unanimously. Resolution No. R2012-041 3. Consider approval of a resolution of the City Council of the City of Denton, Texas authorizing the filing of a proj ect application with the Texas Department OF Transportation for a federally-funded Transportation Enhancement Program grant in the amount of $1,325,138; delegating and authorizing George C. Campbell, City Manager, or his designee, to act on behalf of the City in all matters that are related to this project application, pledging that if funding for this project is received, the City of Denton will comply with all project requirements of the Texas Department of Transportation, a department of the state of Texas; the City Manager is authorized to expend funds in accordance with the match provided for in the grant should the grant be awarded to the City; providing for ratification and confirmation of the resolution and an effective date. The Traffic Safety Commission recommends approval (6-0). Council Member Gregory motioned, Mayor Pro Tem Kamp seconded to approve the resolution. On roll call vote: Council Member Engelbrecht, Mayor Pro Tem Kamp, Council Member Gregory, Council Member Roden, Mayor Burroughs —"aye". Motion carried unanimously. � �u.��0� �ll �W�';;��u.�� ..��u.°0 �.��..�� 1�Y!V��I�..�u.�';;,�'�"r I"��r� d:°��u��d.;�� , ��:� � � ,ti @�'a��d.. � With no further business, the meeting was adjourned 10:10 a.m. MARK A. BLJRROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS AGENDA DATE DEPARTMENT: ACM: SUBJECT AGENDA INFORMATION SHEET December 4, 2012 Materials Management Bryan Langley � tl�µ111II,"�tl*II.IIu �'"h�j!�tl*IC.IItl� ;q II',;�rv Questions concerning this acquisition may be directed to Dean Hartley at 349-8243 Consider adoption of an ordinance accepting bids and awarding a public worlcs contract for the renovation of the Heating Ventilation and Air Conditioning (HVAC) System at the City of Denton Martin Luther King Recreation Center; providing for the expenditure of funds therefor; and providing an effective date (Bid 5020-awarded to Integrity Texas Constniction LTD. in the amount of $116,431. BID INFORMATION The Martin Luther King (MLK) Recreation Center was opened in Febniary 1989, malcing the facility approximately twenty-three years old. It is located in southeast Denton and serves the community seven days a week with its programs and rentals. Facilities Management has an aggressive Capital Improvement Program schedule that replaces heating, ventilation, air conditioning (HVAC) systems at approximately ten year intervals. This replacement schedule represents an effort to maintain the City's facilities in a safe, healthy, and cost effective condition. This also reduces downtime for repairs that inhibit programming at the MLK Recreation Center. Additionally, newer HVAC units provide energy savings over the older models. In lceeping with the Facilities Management's replacement schedule, staff is recommending the replacement of nine HVAC split systems at the MLK Recreation Center. This includes all indoor and outdoor sections, refrigerant piping and indoor duct cleaning. Standard City of Denton purchasing procedures were utilized. Bid notices were advertised in the local paper, posted on the internet, and directly communicated to fifteen prospective bidders. Five responses were received. The bid tabulation is included as Exhibit 1. RECOMMENDATION Award a contract for the renovation of the HVAC System at the Martin Luther King Recreation Center to the lowest responsive bidder meeting specification, Integrity Texas Constniction LTD. in the amount of $116,431. PRINCIPAL PLACE OF BUSINESS Integrity Texas Constniction LTD. Haltom City, TX Agenda Information Sheet December 4, 2012 Page 2 ESTIMATED SCHEDULE OF PROJECT This project is estimated to begin on Febniary 15, 2013 with a completion date of April 30, 2013. FISCAL INFORMATION This project will be funded from account 100160462.1365.40100. Requisition# 110910 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: Bid Tabulation Respectfully submitted: � �� Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1-.�IS-Y,id �020 Exhibit 1 IFB # 5020 DATE: 10/16/12 llescription: HVAC; �Y�'1'1:M K1:l�UVA'1'lUl� DESCRIPTION VENDOR VENDOR VENDOR VENDOR VENDOR Air One Integrity TX John Cook & Infinity Contractors Int'1, American Mechanical Environmental Construction LTD. Associates, Inc. Ltd. Services Services of Texas Principle Place of Business: Haltom City, TX Balch Springs, TX Ft Worth, TX Denton, TX Irving, TX Total Base Bid $116,431.00 $142,000.00 $142,369.00 $142,712.00 $159,189.00 Addendum #1 YES YES YES YES YES Bid Bond/CHASHIERS CHECK �'ES YES YES YES YES ORDINANCE NO. AN ORDINANCE ACCEPTING BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE RENOVATION OF THE HEATING VENTILATION AND AIR CONDITIONING (HVAC) SYSTEM AT THE CITY OF DENTON MARTIN LUTHER KING RECREATION CENTER; PROVIDING FOR THE EXPENDITURE OF FLJNDS THEREFOR; AND PROVIDING AN EFFECTNEDATE (BID 5020-AWARDED TO INTEGRITY TEXAS CONSTRUCTIONLTD. IN THE AMOLTNT OF $116,431. WHEREAS, the City has solicited, received and tabulated competitive bids for the constniction of public worlcs or improvements in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and recommended that the herein described bids are the lowest responsible bids for the constniction of the public worlcs or improvements described in the bid invitation, bid proposals and plans and specifications therein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive bids for the constniction of public worlcs or improvements, as described in the "Bid Invitations", "Bid Proposals" or plans and specifications on file in the Office of the City's Purchasing Agent filed according to the bid number assigned heretq are hereby accepted and approved as being the lowest responsible bids: BID N [_JIVIBER CONTRACTOR AMOUNT 5020 Integrity Texas Constniction LTD. $116,431 SECTION 2. The acceptance and approval of the above competitive bids shall not constinite a contract between the City and the person submitting the bid for constniction of such public worlcs or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award of the bid. SECTION 3. The City Manager is hereby authorized to execute all necessary written contracts for the performance of the constniction of the public worlcs or improvements in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under Bid 5020 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. Upon acceptance and approval of the above competitive bids and the execution of contracts for the public worlcs and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved bids and authorized contracts executed pursuant thereto. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNg'ER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY A �� ' BY: 3-ORD-Bid �020 AGENDA DATE: DEPARTMENT: ACM: SUBJECT AGENDA INFORMATION SHEET December 4, 2012 Materials Management Bryan Langley �� 4111II,"�tl;"II IIu �'"h�,j',tl"II"Iltl� ;q tl„�, Questions concerning this acquisition may be directed to Keith Gabbard 349-7144 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of Cem-Lime from Texas Industries Inc. (TX�, which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5048-Purchase of Dry Cem-Lime and Cem-Lime Super Slurry for Street Department in the annual estimated amount of $300,000 for a five year estimated total of $1,500,000). FILE INFORMATION This item will be used by the Street Department to modify or stabilize the subgrade of streets to improve constnictability. Cem-Lime, a product combination of lime and cement, provides strength, durability, and more resistance to water when compared to typical hydrated lime. Lime works well to bring the plasticity index (P� of the soil to workable levels. This additional lime content also adds calcium hydroxide, the primary compound responsible for lowering the plasticity index of clay soils found in North Texas. The cement produces the strength necessary to bind particles together to provide a stronger sub-base with better waterproofing characteristics. Therefore, this product is more suitable for soil types found in the Denton area. Chapter 252 of the Texas Local Government Code exempts from the competitive bid process, those supplies and resources protected by copyright or patent and available from only one source. TXI is the only lcnown source of this product and therefore this is considered a sole source acquisition. RECOMMENDATION Award to TXI in the unit price amount of $145/dry ton for Cem-Lime, and $165/dry ton for Super Slurry Cem- Lime for an annual estimated amount of $300,000 and a five year estimated total of $1,500,000. Agenda Information Sheet December 4, 2012 Page 2 PRINCIPAL PLACE OF BUSINESS Texas Industries, Inc. Dallas, TX ESTIMATED SCHEDULE OF PROJECT This item can be delivered and installed within two days of receipt of an order. The initial term of this contract ends August 31, 2015, with the option to renew for two additional years. The renewal option stipulates that pricing may be negotiated for the two remaining one year options. FISCAL INFORMATION This item will be ordered on an as needed basis and charged to the individual project account as street surfacing projects are scheduled. EXHIBITS Exhibit 1: Quote Exhibit 2: Sole Source Letter from TXI Exhibit 3: Contract Respectfully submitted: .µry � � Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1 =AIS-File 5048 Exhibit 1 SUPPLIER PROPOSAL � Quatation and Sales Canfracf � To: E�aren Sra�th -�Y cif Denion Dak�: 91i�17�12 Fram: .�son St�tell S�[t�l� f0 Lfi@ fEtEI15 di1EE �17�f�6AY5 O€F tI'!E �LF�I9i4f11� P`3�E. 4if� €�flC#� YQL 6t1 �ft8 ��oltowing material� for use en s:orrsfructi�rn of; Pr�ap��t Hame �em-Lime LaeatsaNts�cc+ �iE�r��enton �s�iat7ateti t5ate: •��ata�nsr en�y ptcke�p st�y tns�at[�a qual�d �bvva �6 ihe pro�ar�ti�rn iac�lty �ar fl�s r�a�tfal �i�e par ton. '�tF�i Hri7idliiQge 1941E b6 C81CU{�tsd SR+d h1A�d 8t Hea i1�6 01 d&i1N�[y_ S89 it1S tDfl6�d�t� i�.499 i�C �ItK1EaF��n. 'F�,�a! 5ur�f[ar�s an qaoas sflene►s mda�rls Itraf �harye and map n[�rUe r�ie fire7surci�a�rs et r�ia rin�e afdelFS�y. '1TiE� a�uvte w411 sxg�t€a In �lxty d� from da% ar� r�ata. iPtidn� base4 u�ari al1 quc��sl Es�a�mal�ia tfeing purc�taaad irasn T%3. Por Ins�ivi[�s�af pr�cfaaf pridng p[ea8e car�fsct yaur'E7� sa�ea xepreaenFa�lve. 'FYidng 6asa+cFF a� s y�ar ��tr�f vrith a��aaro� whlch m�y ha rte$u�laass( �nd ex�t�lssd �1�. i4cc�pi�l6yFurchaser TEKf[51HD4lSTRE�S 8 . 6 : .iasa� &tilweli 87�-6�7-8739 Contract IFB 5p48 Page 96 Of 17 • X� O i SUPPLIER PROPOSAL CEMENT TREATED MATERIALS 1Q615 S�'At�fGLER ROAD, DALLAS, TEXAS 75220 7El,. 972-409-324� �AX 972-501-9304 w�nrw.txi.com Quo�ation and SaIes Confi�•act _ ,_ . �i_EBAS E., �� s�PER��RY�� City of Denton 3'�, 2012 Date: August Attn: Karen Smith 940-349-7100 Bid Daie: Subject ta terms and conditions, we are pleased to quoie fhe fol[owing for use irt the construction of: Job Name Located at 2013 Annuaf Cantract Denton, Texas Prices quofed are F.O.B. Slurry Plant Quantit U.O.M. Descr� tion Unit Price Cem-Lime S�perSlurry — d�livered & spread $165.00 /dry ton Conditions 1) Slurry loads are a minimum of 10 dry tons ta a maximum of 15 dry tons per load. 2) On the job site, we need to �a�e 20Q gallons of water available to help rinse oui sl�rry tanker. 3) The abo�e prices are for ihe refere�tc� projeci only during normal working hours. 4) TXI is not responsib[e for ihe mixing or compaction of cement. 5) This price is �afid thraugh A�ag�st 31, 2415. Conkract IFB 5048 Page 17 of 'E7 Exhibit 2 • �� 1341 West Mockingbird Lane • Dallas, Texas 75247 • 972.647.67Q4 • www.txi.com � CEM�-LIME No�ember 9, 2012 City of Dentan 9Q1 B Texas Street D�nton, TX 76209 Attn: Karen Smith TXI Operations, LP has a product called Cem-Lime which is a cementitious product. This product is produced at our cement mill locafed in Midlothian, Texas and is a�ailable in a dry powder farm, At significanf cost to itself, TXI has developed the processes and components necessary to manufacture Cem-Lime through internal experimentation, expertise and inventiveness. However, because af the proprietary nature of the Cem-Lime product and manufact�ring processes, TXI belie�es that it is fhe sole supplier thaf can pro�ide you with Cem- Lime. Cem-Lime price to the Ci�y of Dentan is $1q�5.�0 per dry fion de�i�ered and spread. This price is valid fihrough December 3'!, 2D15. If you ha�e any questions or need more information, please contact me at 214- 5'i 9-1622, Sincerely, . � .iason Stilwei� North Texas Cement & Aggregates Public Works Coordinator Exhibit 3 CONTRACT BY AND B�TW��N CITY QF DENTON, TEXAS AND TEXAS INDUSTItIES, INC., FOR SUPPLY �F CEM-LIME -FIIsE 50A8 THIS CONTRACT is made and entered into this day af A.D., 2012, by and between Texas Industries, Inc (TXI� a earporation, whose address is 10615 Spangler Road, Da11as, TX 75220, he�•einafter referred to as "Supplier," and the CITY OF DENTQN, TEXAS, a hame rule municipal corporation, hereinafter referred to as "City," to be effective upan approval of the Denton City Council and subsequent e�ecutian af this Contract by the Denton City Manager or his duly at�tharized designee. Far and in consideration of t�e eo�enants and a�reements contained he�ein, and for th� mutual benefits to be abtained hereby, ihe pa��ies agree as follows: ,SCOP� OT 5ERVICES Suppliet� shall provide products in accordance with the Supplie�•'s proposal attaehed, and incorpoi•ated herein for all purposes as Exhibit "C". The Contract cansists of this writien a�reement and the foliowing it�ms whieh a�•e attached hereto anc� incorporated herein by reference: (a) City of Dentan Standard Terms and Conditions (Exhibit "A") (b) Special Terms and Conditions {�xhibit "B") (c) �uppIier's Proposal. (Exliibit ,�C"), These documents make up the Cont��act documents and what is called for by orze shall be as binding as if called for by all. In the event of an ineonsistency ar conflict in any o#' the pro�isions of the Contract documents, the ineonsistency or conflict skall be resolved by giving precedence first to the written agreetnent then ta the eontract documents in the orde� in which they a�•e listed abave. These document� shall be referred to callectively as "Contract Documents." IN WITNESS WHEREOF, the pa�•ties of these p��esents have exeeuted this ag�•eement in i�e year and day first above written, �`...� �UPPLTE BY; AU HORIZED S GN RE Date: D o2'� � Z T�I' I P�' � U Name: J � Title: V. � (-�� CITY �F D�NT4N, T�XAS I:• GE�RGE C. CAMPBELI,, CITY MANAGER DATE: ATTEST : JENNI�`�R WALT�RS, CITY S�CitE'I'ARY APPROVED AT TO LEGAL FORM: : ANITA BURGESS, CITY ATTORNEY Contract i�'E3 5048 Page 2 of 17 �XHIBIT' A Cifv of �enton 5tandard Purchase Terms and Conditions These siandard Terms and Condifions and the Terms and Condifions, Specifications, Drawings and ather requiremenfs incl�ded in lhe City o# Denkon`s solicitafion are appEicable fo ContractslPurchase Qrders issued by the City of penfon hereinaffer referred fa as fhe City or Buyer and the Selier herein after referred to as #he Bidder, Cor�traetor or Su�plier. Any deviations must be in wriiing and signed by a representativa of ihe City's Procurement Qepartmeni and the Supplier. No Terms and Conditions cantained in t�e Sellers Proposal response, ln�oice or Statemeni shall senre to modify the ierms sef forih herein, If there is a coniiict befween the pro�isions on the face of the ContracUPurchase Order ihese wrifien provisions wil! take precedence. By submitting an Offer in response to lhe Solicilaiion, fhe Co€�tractor agrees ihat the Confract shalE be go�erned by fhe following terms and eonditions, unless excepiions are dufy noted and fu�ly negoUaied. Unless otherwise specified in lhe Contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shaA a�ply only to a Solicifatiort fo purchase Govds, and Sections 9, 90, '�1 and 22 shall apply only to a Salicitation to purchase Services io be performed principally at fhe City's premises or an publlc rights-of-way. 1. COIVfiRAC7`OR`S OBLIGA7lONS. 7he Confractor shall fully and tirnely pro�ide alE deliverables described in the Solic�tation and ir� fhe Contracfo�s Offer in stricf accordance wikh lhe terms, correnants, and condilions of fhe Contract and ail applicab�e �'ederal, Stafe, and focal laws, rules, and regulations. 2, EFFECTIVE �ATEITERM. Unless ott�erwise specif�ed in lhe Solicitation, this Contract shall be sffecti�e as af fhe date the eonlraei is signed by the City, and shall contin�e in effect uniil all obligations are pe�Formed in accordance with ihe Contract. 3. GON�RACTOR TE3 PAC�CAGE D�LIVERAgL�S: �'he Contractor will package delive�ables in accordance wifh good commercia[ practice and sha11 include a packing list showing the �escri�tion of each item, ihe quantity and unif price unless oiherwise pro�ided in ihe Specifications or Supplemental 7erms and Conditions, each shipping container shail ba clear[y and permanenfiy marEced as fol[ows: (a} The Contraeto�'s narne and address, (b) lhe City's name, address and purchase order or purchase release nt�mber and ihe priee agreernent number if applicable, (e) Caniaine� number and fotal number of coniainers, e,g. box 1 of 4 boxes, and {d) #he number of #he eontainer bearing the pacicing list. The Contractor shall bear cost of pae�aging. Deliverables shall be suiiably packed to secure lowesf transportation cosfs and to cor�form to aEl the requirements of common carriers and any appEicable specification. The Cify's cau�i or weighf shall be fnal and conclusive on shipments nok accompanied by packing (ists. 4. SHIPMEI�T UNDER RESERVA710N PROHIBIi�I�: 7he Contracfor is no# authorized to ship lhe deliverables under reseNation and no tender of a bilf of lading will operate as a tender of deli�erabiss. 5. TITLE & RISK OF LOSS: Title #o and eisk of loss of 1he deliverables shall pass fo the City only wi�en the Cify actualfy rece9ves and accepfs the deli�eEa6les, 6. D�I.IV�RY T�RMS AND TRANSPORTATION CNARGES; �eli�erables shall 6e shipped F.O.B. point of delivery unless otherwise specified in the Supplemental 7erms and Conditions, Unless otherwise staied in the Offer, the Contraclor's price shall be deemed to incfude all de�ivery and transportalion eharges. The City shall �a�e fhe right io designate what method of transportation shaEl ba used to ship the deliverables. The place of delivery shall be that set forih the purchase order. 7. RIGH7 OF [NSPECTION AND REJECTION: The Cify expressly reser�es all righis ursder law, 3neluding, but not limited to khe Uniform Commerciai Code, to inspect the deliverables at deEivery before accepting them, and io reject defecti�e or non-conforrning deliverab[es. If khe City has fhe right to inspect the Contractor's, or the Conlracto�s 5ubcontractor's, facilities, or the defi�erables at lhe Coniractor's, or the ConlracEors Sul�cvnlracfor s, Premises, the ContracEor shail furr�ish, ar cause to be furnished, without additional charge, a[I reasonable facilities and assistance to the City to facilitafe sueh inspection. 8. NO REPLACEMENT OF DEFECTiV� 'TEIVDER: �very tender or delivery of deli�erables musi fu(ly compfy with all provisions of ihe Contract as to time of delivery, quality, and quanfily. Any non-compEying tender shall constitute a breach and lhe Contractar shall not have tha right to substit€�te a conforming tender; provided, where lhe time %r performance has not yet expired, the ContracEor may notify t�e City of the intenEion fo cure and may ihe� make a canforming iender within the iime allotted in fhe cantract. Corttract l�B 5048 Page 3 of 17 9. PLAC� AND CQNDITION OF WORK: The City shall pravide the Co�tractor access to ti�e sites where tne Coniractor is to perfarm the services as required in order for the Cantract4r to perform fhe services in a timely and efficient manner, in accordanca wifi� a�d subject to fhe applicable seeurity laws, rtales, and regulations. The Cantractor aeknowledges that it has satisfred ilself as io #he nafure of the Ciiy`s service requirements and specifcations, the Eocalion and essential charaeferistics of the work sites, the quality and quantiiy of maferials, equipmenE, labor and facilities �eeessary fo pe�form the services, and any other conditian or stafe of fact which couEd in any way affect performance of the Contracfo�s obligations under the contract. The Contractor hereby reEeases and holds ihe Cify harmless from ancE against any Elabilffy or clairn for damages of any kind or nature ii ihe actual sife or service conditions differ frflm expected conditions. 70. WORKFORCE A. The Conieactor shal! em�loy only orderiy and competent woricers, s[cilled in fhe perforrr�ance of ihe services wttich they wiEl perforrn under ihe Cantract. B. The Gontractor, its employees, subcontractors, and subcontractor's employees rnay not while engaged in par#icipaling or responding to a solicitaiion or while in ihe course and scope of delivering goods or services under a Cily of Qenfon conlract or on the City's property . i. use or possess a firearm, incfuding a concealed handgun that is licensed under sfafe Eaw, except as required by the terms af the contract; or ii. use or possess afcoholie or olher intoxicating beverages, ilfegal drugs or contralled substances, nor may such workers be intoxicated, or under fhe influence of alcohol or drugs, on the job. C. If #he City or the City`s repres�ntali�e natifies fhe Contractor lhat any worfcer is incompetent, disorder{y or disobedient, has knowingly or repeatedly violated safefy regulations, has possessed any flrearrns, or has possessed or was under the influer�ce of alcohol or drugs on the job, ihe Contractor shali immeriiatefy remove sueh worker from Gont�act serviees, and may nof employ sucF� worker again on Conteact services without the City's prior writien consent. Immigration; The Contractor represents anct warrants that it shall corriply with ihe requirements of the Immigration Reform and Conirol Act of 1988 and 4990 regarding ernployment veriflcafion and retention of �erifcation forms for any individuals hired on ar after f�ovember 6, 1986, who will perform any labor or services under the Contract and lhe 11lega! Immigration f2eform and Irnmigranf Ftesponsib9fity Act of 9996 ("IlF21F2A) enacEed on September 30, 1996, 11, CpMPLIANCE WITH HEALTH, SAFETY, AND E�lV1RONMENi'AL REGULATIONS; The Contractor, if's Subconfracfors, and ihelr respective emplayees, shall comply fu[ly with all applicable federal, state, and local i�ealth, sa#ety, and environmental laws, ocdinances, rules and regulaEions in fhe performance of the serriices, including but nof limited to #hose promulgated by fhe Cify and by ihe Occupatianal 5afety ar�d Eiea[fh Adminislration (�SHA}. In case of conflict, the mosk stringenk safety requirement shall go�ern. �he Contractor shall inciemnify and hald the City harmless from and against all claims, demands, suils, aefions, judgments, flnes, penal#ies and liabilify of every kind arising frorn ihe breach of the Contrackor's obligations under this paragraph. �nvironmentaf Protection: The Respondent shalE be in com�iiance with ail appl[cable standards, orders, ar regulations iss�ed pursuant to fhe mandafes of the C�ean Air AcE (42 U.S.C. §7401 ef seq.} and the �'ederal Water Pollution Confrof Act, as amended, {33 U.S.C. §�251 ef seq.). 92.11VVOICES: A.1'he Confractor shall submif separate in�olees in duplicata on each purchase order or purchase refease after each delivery. if partiai shipments or deliveries are authorized by the City, a separate invoi€� mus# be sent for each shipment or delivery made. B. Proper Invoices must inclutEe a unique invoice number, ihe purchase order or de[ivery order numher and #he master agreement number if applicable, the DepartmenYs Name, and the name of ihe pofnt of contact for the Deparfinent, Ir��oices shall be itemized and transportafion charges, if any, shall 6e lisfed separately. A copy of the bill of Eading and the freight waybill, when applicable, shall be atfached to the in�oice, The Contracfo�'s name, rert�iitance address and, if appEicable, the tax ideniification nurnber or� the ir��oice rnust exactly mafch the informaiior� in the Vendors registration with ihe Cify. U�less otherwise instr�cted in writing, khs City rnay rely on fhe remiitance acfdress speci#ied an ihe Contractors invoice. C. ]nvoices for labor shalE include a copy of all time-sheefs wilh frade labor rate and deliverables order �umber clearly idenfifetl. Envoices shall also inelude a ta6ulation of work-hours al fhe appeopriafe rates and grovped by wark order number. 7ime billed for labor shall be limifed to hours actually worked ak the work site. D. linfess ofherwise expressiy auihorized in the Contract, ths ContracEor shall pass through all Subconiract and ol�er authorized expenses af actuaE eost without maeKup. �. �ederal excise taxes, State #axes, or City sales taxas must nvt be included in the invoiced amo�nt. The CiEy wilE furn9sh a tax exemption eertifcate upan requesl. Contract I�B 50�$ Page 4 of 17 93. PAYMENT: A. Afl proper invoices need to be sent to Accounts Paya6le. Appro�ed invoices wili be paid wifhin thirty (30) ealendar days of the City's receipt of the deliverab�es or of the invoice being recei�ed in Accounfs payab[e, whiehever is la#er. B. ff payment is not timely made, [per paragraph A); interest shafl accrue on the unpaid balance at the lesser of the rate specified in 7exas Go�ernmenY Code Section 2259.025 or the max[mum lawfui rate; exce}st, if payment is not fimely made for a reason for which the City may withhold payment hereunder, interest shafl not accrua until ten (10) ca�encEar days after the grounds for withholcting payment have been resolved. C. if parlial shipments or deliveri�s ara authorized by the City, the Coniractar will be paid for the partial shipmenf ar delivery, as stated above, provided that the invaice mafches the shipment or delivery. D. The City may withhvlci or sek off fhe entire paymenk or part of any payment olherwise due the Cvntractar io such extent as may be necessary on account of: i. delivery of defective or r�on-canforming deliverables by Ehe Contractar; ii. ti�[rt� parly elairtts, which are not co�ered by fhe insurance which the Con#ractor is required ta pro�ide, are filed of reasonable evidence indicaGng probable flling of suc1� c�aims, iii. failure of lhe Contractor to pay Su�contractors, or for la�or, materials ar equipment; iv. damage to tha �roperty of fhe Ci#y or 1he Cify's agents, ernployees or contractors, which is not covered by �nsurance required to be provided by the Contractor; v. reasonable evfdence thai the Coniracfor's obligations w�li �ot be completed within the time specified in fhe Cont�acf, and thaf the unpaid baEance would not be adec��afe fo cover ac#ua1 or Iiquidafed daonages for the anficipafed defay; vi. faiEure of the Cvntractoe fo submit proper invoices with purchase order number, with alf required atiachments and supporling documentation; or �ii. failure of the Contractor to campiy with any maEerial provision of ihe Contract �ocumenfs. E. Notice is hereby given #hat any awarde� firm who is in arrears #o the City of Der�ton for delinquent faxes, lhe City �nay offset indebfedrtess owed the City ihrough payment withholding. F. Paymeni will be made by check unless the parties mutually agree to payment by cradit car� or electror�ic transfer of funds. The Coniractor agrees fhat ihere shalf be no additional charges, surcharges, or penaities to the City toE payments made by credif card or efectronic funds transfer. G. The awarding or continuation of lhis contract is dependent upon 1i�e availabifity of funding. T�e City's payment obligations are payable only and sofely fram funds Appro�riated and availa�le for this contract. The absence of Appropriafed or other fawfully a�ailable iunds shall render the Confrack nuil and �oid to ihe extant funds are not Appropriafed or a�ailabfe and any dei�verables deli�ered but €�npaid shall be returned to the Contractar. The Cily shall provide fhe Contractor written noiice of the failure af the City io make a� adequafe Appropriation for any fscal year fo pay the amaunts due under khe Cor�iract, or fhe reduction of any ApprapriaHan to an amount insu�cient to permit the City #o pay its obligations under the Contraet. I� the e�ent of none or inadequate appropriation of funds, there wi![ be no pe�alty nor remo�al fees charged ta fhe City. 'E4. TRAVEL EXPENSES: All iraveE, lodging and per diem expenses in conneetion with ihe Gontraci shali be paid by the Contractor, unless athe�vvise stated in ihe contract ferms. 15. �1NAL PAYM�Ni AND CLOS�-OUi: A. ff a DBEIMBEMIBE Program Plan is agreed fo and lhe Contraclor i�as i�enlified 5ubcontrackors, lhe Contractor is required io submit a Caniract Close-Out MBENVBE Compliance Repart to the Purohasing Manager �o lafer lhan the 1 bih calendar day after complefian of all work under tha contracE. �ina! paymenk, refainage, or both may be withheld if the Contractor is r�ot in compliance witi� ihe eequirements as accepted by the Ciry. B. The making and acceptance of rnal paymenf wi[I constitute: i. a wai�er af all claims by ihe Cily against the CvnEractor, excepf claims (�} which ha�e been pre�iousfy asse�led in writing and not yet seitled, (2) arising from defective work appearing after final inspection, (3} arising from failure of ihe Cor�tractar fo comply wiih the ConEract or the terms of any warranty specified herein, (4) arisi�g from the Cantracfor's continuing obl�gations under ihe Confract, including bui noE limited fo indemnity and warranty obligaEions, ar {5) arising under 1he Cify's righi to audit; and ii. a waiver of all claims by the Contrackor againsf the City ofher ihan those previously asseried in writing and not yet settled. 16. SPEC�AL 700LS & 7�ST �QUIPM�N7: ]f the price stated on tF�e Offer incEudes the cost of any special toaling or speciaf #esE equipment fabricaied or required f�y the Contractor for the purpose of filling tf�is order, such s}�ecial toaling equipment and any pracess sheets related fhereto shafl become the property of ihe City and shall be idenfified by the Contracfor as such. 'i 7, RIGM7 70 AUI]I7: A. The Cify shall have the rig�t fo audit and maKe copiss of t�e books, records and computations perEaining to the Cvnfract 1�8 5048 F'age 5 of 17 Confract. The Contracfor shall retain such 6oaks, records, doc€�menfs and ofher evidence periaining fo 1he Contract periad and fi�e years thereafter, except if an audiE is in progress or audit findings are yet unresolved, in which case records shall be kepi unG[ all audit tasics are complefed and resolved. �hese baoks, recards, documents and other evidence shall be avaifabls, witt�in ter� (10) 6usiness days of wri#ten requesf. Furlher, the Gontractor shali alsa require all Subconfractors, material suppliers, a�d oiher payees io retain ail books, records, documents and othee e�idence pertaining to the Confract, and to a(low ihe City simiiar aecess io those documents. All booEcs and records will be made availabie within a 50 miie radius of the City of Denton. The cost of ihe audit wip be borne by the City �nless the audit reveals an o�erpayment of 1% or greater. If an overpayment of 9% or greater occurs, the reasonabfe cost of fhe a�dit, inc[uding any #ravel casts, must be borne by the Conlractor which r�tust be payable within fi�e (5) businass days of receipt of an invoice. B. Failure #o carnp�y with the provisions of fhis seclion shall be a material breach of the Contract anc# shall conslitule, in the Cily's so[e d'tscretion, grounds far ferminaGon ihereaf. Each of #he ierms "boo[cs", ��f8C0ECE5°, "dacumenfs° and "ofher evide�ce", as used abo�e, shall i�e construed io include drafts and electronic files, even if such drafts or electranic fiiles are subsequently used fo generate or prepare a final printed document. �8. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a �BEIMB�lV1lB� agreed io Plan, ihe Contracior shall comply with all requirements appro�ed by the C�ty. The Contraclor shall noi initialEy employ any Subcontracfor exce�t as pro�ided in the Contractor's Plan. 7he Cor�tractor shail not substifute a�y Subeonlractor identified in the Pfan, unless the subsfilute has l�een accepted by fite City in writing. No acceptance by 1he City af any Subconlractor shal! consfiiule a waiver of any rights or remedies of the Cify w2fh respect to defective delivera6[es pro�ided by a Su�contracfor. �f a P[an has beer� appro�ed, fhe Cantractor is additionally required fo submif a rttanfhiy Subcontract Awards and Expenditures Report fo the Procurement Manager, no later than the tenfh calendar day of eac� month. B. Wark performed far the Contractor by a Subcantractor shall be pursuant to a written contract 6etween the Coniracfor and Subconiraetor. The terms of #he s�bcontrac# rr�ay not conflict witF� #he ierrr�s of the Con#ract, and shali contain pro�isions thai: i. require lhat all deliverables #o be provided by the 5ubconEraetor be provided in strick accordance with ihe provisions, specificatians and terms af the Contract; ii, prot�9bit the SubconfracEor frorr� further subcvntracling any portion of khe Contract withoui the peior written conseni of fhe City and fhe Contracfor. The City may require, as a condition to such fttrther subconiracting, that ihe Subcantrac#or posf a�aytt�ent bond in form, substance and a�nount acce�tabfe io ihe Cify; iii. require Subcontractors ko submit all it�voices and applications tor payments, including any claims for additio�al payments, damages or otherwise, to the Cantractor in suffcienk iime to enable the Contractor io include same with its in�oice or applicatian for payrr�ent lo ii�e City in accordance with the terms of the ContracE; iv. require that aff Subcontraeiors o6fain and maintain, throughout #he term of lheir eontract, insurance in the iype and amounls s�ecifi�d for the Conlractor, with ihe Cify being a named insured as its interest shall appear; and �. require that the Subcontraetor indemnify and E�old the Ci#y har►nless fo the same exteni as the Contractor is required to indemnify the City. C. The Conlractor sha[I be iufly responsible fo 1he City for all acts and omissions of the Subcontractors just as the Contractor is responsibfe for fhe Contractor's own acEs and omissions. Noihing ir� ihe Contract shali create for fhe bene�t of any s�ch Subeontractor any coniractua� relaiionship between ihe City and any sucFt 8ubconEraetor, nor shall it create any obligallon on the part of the Gity to pay or #o see to the payment of any moneys c�ue any such S�rbconiractor except as may otherwise be required by law. I]. The Contracior shall pay each Subcantractor its appro�riate share of paymen#s made to the Contractor not lafer fhan ien {10} calendar days afier receipt of payment from the Ci#y. 'i9, WARRANTY-PRfCE: A. 7he Contractor warranis fhe prir,�s quoted in the pffer are no higher lhan the Contracior's eurrent prices on orders by olhers for IiEce deli�erabEes under simifar terms of purchase. B. The ConiracEor cerfifes that the prices in the Offer have been arri�ed at independe�tly without consuitafion, cammunicafian, or agreemeni for ihe purpase af restricting competitio�, as to any matter relating to such fees wifh any oiher flrm ar wiEh any competitor. C, ln addiiion fo any other rernedy a�ailable, the City may deduct from any amounis owed fo the Contrackor, or otherwise reco�er, any amot�nts paid for items in excess of fhe Contrackor's currenf prices on orders by athers for like deliverables under simi[ar ierms oi purci�ase. Contract iF8 5Q48 Page 6 of 17 20. WARRANTY — TITLE: The Contractor warra�ts that i# has goad and indefeasibie title to alf deliverables furnished under the Coniract, and #hai the deEi�erabfes are iree and clear of all liens, ciaims, secUrity intarests and encumbrances. The Gontractor sha[I indernnify and Eto1cE the Cify harmless from and against alE adverse title clairr�s to the cEeli�erables, 21. WARRANTY — DELIVERABL�S: The Contractor warrants and rapresents thaf all deliverabies sold the City under the Contract shall be free from defects in design, work►nanship or manufacture, and conform in all ma#eriaf res�ects to the specifications, drawings, and descr[ptions in the Solicitation, to any sampi�s furnished by ti�e Confrackor, fo the terms, covenanfs and condiiions of ti�e Confraet, and to alf applicable 8iafe, Federal or local faws, ru�es, and regulations, and industry codes and slandards. Unless otherwise slaied in ihe Solicitation, the deli�e�'ables shall 6e new or recycled merchandise, and not used or reeondifioned. A. Recycled deliverables shall be clearly identi�ed as such. B. The Contraclor rnay not limif, exclude or dESCEaim the ioregoing warranty or any warranty im�fied by law; and any atiempt to cio so shall be wiihout force or effect. C. U�less olherwise specified in the Contract, the warranly period shali be at least or�e year from the date of accepfance of the defi�erables or from the date of acceptance of any raplacement deliverables. [f during 1he warranty period, one vr more of the above warranfies are breached, ihe Contractor shall promptiy u�on receipt of demand either repair the non-conforming deliverables, or repface the non-conforming deliverabfes with fully conforming cfeli�erables, at the City's option and at na addifiona[ cost to ihe Cily. A1i casts incidenfal lo such repair or replaceme�t, including but not limiied fo, any packaging and shipping costs shall be borne excl�sively by ihe Cantracfor, The City shall endea�or io gi�e the Contractor written notice of the breach of warrat�ty wiihin thirty (3D) caiendar days of discovery oi the breacFt af warranty, but failure to give timeEy notice shall not impair the Ciiy's rights under thES seetion. D. If the Canfractor is unabfe or unwilling to repair or repface defeclive or non-canforming deliverables as requ9red by the City, then in addition to any other available rernedy, the City may reduce the quantity of deliverabEes it may be requirecf fo purchase under ihe Contract from ihe Confractor, a�d purchase conforming deliverables from other sources. In such event, the Contraclor shall pay to the Cily upon demand the increased cost, if any, incurred by the City io procure such deliverab[es from another source. E. If the Confractor is not the ma�ufaciurer, and the deliverables are cavered by a separate manufacEurer's warranty, tFte Contractor shall transfer and assign sucf� manufacturer's warranfy to f�e City. if for any reason fhe rr�anufacturer's warranty cannoi be fully fransferred to the City, ihe Contractor shalf assist and cooperate with the City to the fullest extenf to enforce such manufacfure�'s warranty ior th� benafit of the City. 22. WARRANTY — S�RVICES: The Contrac#or warrants and represe�ts that all services io 6e pro�ided the City under the Contract wi[l be fully and timeiy performed En a good and workmanii[ce manner in accordance with gene€ally aecepted induslry stancfarcfs and practices, fhe terms, eonditions, and co�e�anls of ihe Coniract, ar�d all applica6le Federal, Slaie and Eoca[ laws, ru�es or regufafions. A. 7he Confractor may nat limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any atfempt fo do so 5hall be without force or effect. �. Unless otherwise specified in fhe Co�tract, the warranfy periad shali 1��; at least one year from ti�e Aceeptanee Dale. Ef du�ing the warranty period, one or more of ihe aba�e warranties are 6reached, the Contractor shall promptly upo� receipf of demand perfarm ihe seroices again in accordance with above standard at no additionaf eosi to ihe Gity. A[I casfs incidental to sueh additional performance shall be borne 6y the Contractor. The City shall endeavor to give ihe Contractor written notice of the breach of warranty wifhin thirty (30) cafendar days of dESCO�ery of the breach warranly, but failure to gi�e timely notice shalk r�of irnpair the City's rights under this sectian, C. If the Conlractor is unable or unwilEing to perfarm its serrrfces in accordance with the abo�e standard as required by lhe City, then in a�difion to any other avaiEabie remec�y, the City may reduce the amount af services it may be r�quired to purchase under the Confract from the Contracior, and purchase conforming seEVices fram other sources. In such e�ent, the Contracfor shall pay to the City upon demand the increased cosf, if ar�y, i�tcurred by the CiEy to procure such services from anofher source. 23. ACG�P7ANC� O� 1NCOMPL�7� OR NON-COIVF'ORMlNG �ELIVERABLES: if, instead of requiring immediaie correetion or r�rr�o�al and repEacement of defecii�e or non-confarming deliverables, the Cify prefers io accept it, ihe City may do so. The Contracfor shall pay all claims, costs, lasses ar�d damages atlributabfe to khe City's evaluation of and determination to accept such defecti�e or non-conformi�g deliverables. {f any such acceptance acc�rs prior to final payment, ihe City may deduct such amounfs as are necessary to compensate ihe City for the diminished vafue of ihe defecti�e or non-canforming deli�era6Ees, If the acceptance occurs after final payment, such arnaunl wilE be refunded ko the City by the Contrackor. Contract IFB 5048 Page 7 of 17 24. REGhIi' TO ASSURANCE: W�enever one party fo the Contract in good fai#h has reason to question the ofher pa�ty`s intent fo perform, demand may be made to the ather parly for writken assurance of the intenf fo per�orm. In fhe event that no ass�rance is given within the tirne specified a�ter derrtand is made, the darrtanding pa�ly may treat this failure as an anticipafory repudiafion of the Contrack. 25. STOP WORK IV07lCE: The City may issue an immediate Stap Work Notice in the event ihe Conlracfor is obser�ed perforr�'iing in a manner khaf is in �ialaiion of Federal, State, or local g�idelines, or in a manner thai is determined by the City to be unsafe ta eiti�er [ife or properiy. Upan notifcativn, the Contractor will cease all woric until notified by the Cify #hat the violation or unsafe condition has been correcfed. 7he Coniracfor shall be liabfe for all casts incurred by the City as a resuff of fhe issuance of such Stop Woric Notice. 26. dEFAULT: The Contraclor shall be in defauli under the Confract if fhe ConlracEvr (aj fai�s ta ful9y, timely and faith#ully perFoem any af its material obligations und�r the Contract, (b) fails fo provide adequate ass�rance of perFormance under Paragraph 24, {c} becames insol�ent or seeks relief under the bankrupfcy Iaws of the Unifed States nr (d} mafces a makerial m[srepresentation 9n Contraclor's Offer, or in any report ar tieliverable required to ba submi#fed by the Contraclor lo the Cify. 27. T�RMINATION FOR CAUSE: In fhe e�ent of a default by lhe Gontracfor, the Ciiy shall ha�e the right to terminate ihe Contract for cause, 6y writien nofice effecti�e fen {10) calendar days, unless atherwise specifted, affer the c�afe of such notice, unfess fhe Contrackor, within such ten ('f0) day period, cures such default, or provides evidence sufiicient io pro�e fo fhe City`s reasor�able satisfac#ion lhat such defauit does not, in fack, exist. In addition ta any other remedy available under !aw or in equity, the City shall be entitled to recover a�l actual �amages, casts, Eosses and expenses, incurred 6y ihe City as a resuit of fhe Co�ntracfor's defau[f, incfuding, without limitation, cosi of cover, reasonabEe altorneys' fees, eourt costs, and prej�dgmer�t and posf-judgment interesf at the maximum lawfu[ rate. Additionally, in lhe event of a default by the Conlractor, the City may remo�e the Contractor irom the Cily's �endor list far ihree (3) years and any Offer st�bmitted by the Gontractor may be disquai[fied for up ta ihree (3) years. Ail righis and remedies uncfer khe Confracf are eumulati�e and are nof excfusjve of any other right or remedy provided by law. 28. T�RMEtJATiON WIiHOU7 CAUSE: The City shall have the right to terminafe ihe Caniract, in whole or in part, withot�t cause any time upon khi�fy (3�) calendar days' prior wriften noiice. iJpon receipt of a notice of terrr�inaiion, the Confractor shall promptly eease alf furiher work pursuanl fo the Conkract, wilh such exceptions, 9f any, specifiied in the notice of fermination. The City shall pay fhe Contractor, io ihe extent of funds Appropriai�:d or ofherwise lega[ly avaifabEe for such purposes, far all goods deli�ered and services performed and abligations incurred prior io ihe date of ferminafion in accordance wiit� the ierms hereof. 29. FRAUD: �rauduleni sfatemertfs by the Canfractor an any Offee or in any reporf or cEe{i�erable requ[red to be submiiied hy lhe Contractor fo the Cify shall be graunds ior the iermination of the Contract for cause by the Cify and may result in legal aclion. 30. [}�LAYS: A. The Cily may delay scheduled delivery or otheE cEue cEates by writk2n notice #o the Contraclor if the City deems it is fn its best inferest. 6f suc�t delay causes an increase In the cost of the worK under the Contraei, the Cily and the Contractor shall negofiate an equifabEe adjusirnent for cosf5 incurred hy the Contracior ir� the Contract price and execut� an amendment to the Conlract. 7he Contracior rr�ust assert its right ko an adjustment within thi€ty (30) calendar days fram the date of rer,eipf of the notice of deEay, Faiiure to agree on ar�y adjusfed price shall be handled under ihe Dispute Resolufion process speci�ed in paragrap� 49. F�owe�er, nothing in this provis�on shall excuse #he Canfractor from delaying the delivery as notified. B, fVeili�er party shall be fiable for any default or delay in ihe pertormance of its obligations under this Contract if, while and to the extent such defauEt or delay is caused by acts of God, fire, riofs, civll commot�on, labor disruptions, sabotage, so�ereign conduct, or any other cause beyor�d the reasonabEe cantrol of such Party. !n the event of default or delay in contract performance due to any of fhe foreqoing causes, then fhe lime for completion of ihe ser�ices wi1E be exfended; provided, howe�er, in such an event, a conference will be he[ci within fhree (3) business days to estab[ish a mutvally ag�eeable period of fime reasonabEy necessary io overcome ihe effect of such fail€�re #o �erform. 31. 1NDE,MNITY: A. Definitions:i. "fndemniGed Claims" sha[I include any and all claims, demands, suits, causes af action, judgments and liabiiify of every character, fype or tfescfiption, including all reasonable cosks and expenses of litigation, mediation or ofher altemate dispuie resolution mee�anism, including attorney and other profess[anal fees for; (9} da►nage ko or loss of the property of any person (incfuding, but not iimifed to the City, ihe Gontracfor, #heir res�ec#ive agents, o�cers, em�foyees and subconfractors; ihe officers, agenfs, and emplpyees of such sui�cortfraciors; and third parlles); andlor (2} deaih, badily injury, illness, disease, worker's compensation, loss of services, or loss of ineome or wages ko any person {including buf nof limifed to the agenfs, officees and employees of the Cily, the Cor�tract IFB 5048 Page 8 of 'i 7 Contractor, the Contractor's subconEracfars, and th€rd parties}, ii. "Fault" shall inc�ude the sale of defective or non- conforming deliverables, r�egligence, wil[fu[ rnisconduct or a breach of any legally imposed sirict liability siandard. 8. THE CONTRACTOR SHALL DEFEND (AT THE �PT[ON QF THE CITYj, IN�EMNiFY, AND HOLD 7HE CITY, 17S SUCCESSORS, AS51GN5, OFFIC�RS, EMPLOYEL�S AND �LECT�p OFFIClALS HARMLESS FROM AND AGAINST ALL INn�MNIFIED CLAIMS DIRECTLY ARIS[NG OUT OF, INClD�Ni 70, CONC�RNING OR RESULTING FROM TH� FAUL7 O� 7HE COIVTRACTOR, DR THE COiJTRAGTOR'S AGENTS, EMPLOY�ES OR SUBCONTRACTORS, IN THE PERFORMANCE OF' iHE CONiRACTOR'S OBLIGATIONS UN�ER THE CONTRACT. NOTHING HEREIN SHAI.[. BE DEEMED TO LIMkT THE RIGH7S O� 7NE C1TY OR THE CONTRAGT�R {INCLUDfNG, BUT NO7 LIMI7ED TO, THE RIGHT TO SEEK CONi'RiBUTlONj AGAI�[S'i ANY THIRD PAFt7Y WNO MAY BE LfABLE �OR AN IIVDEMNI�IED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition io the speci6c insurance requiremenfs detaifed in Atkachment A. The successful fi�rn shall procure and maintain insctrance of the fypes and in the minimum amaunts acceptable to ihe City of benton. 7he insurance shall be wriiten t�y a company [icensed Eo do business in the State of Texas and safisfactory to the City of �entan. A. General Requiremenfs. i. ihe Confracior shalE ak a minimum carry insurance in the types and amounts indicaked and agreed ta, as su6mitted to the C€ty and approved by the City wilhin the procurement pracess, for the duration of fhe Contraet, including exfensian oplions and hold o�er periods, and during any warranly period. ii. The Contraeior shall provide Cerkif�cafes of Insurance with the co�erage's and endorsemenfs required io the City as �erificafion af co�erage prior to conkraet execution and within fourteen {'f4) calendar days after written request from the City. �allure to provide the required Certificate of lnsuranee may subject the Offer fo disqualiflcation from consideration for award. The Cantractor must afso farward a Ceriif[cate of Insurance fo the Cify whene�er a previously identified policy period has expired, or an ex#ension option or hoid o�er period is exercESed, as verificatian of continuing coverage. iii. The Confractor shall nat commence work unlil the required insurance is obtained and unlil such it�surance has �een reviewed by fhe City. Approva! of insurance by lhe City shall nof relieve or decrease the liability of the ConEractor hereuncler and shaii nof be construed to be a lirr�itation of liability on the part of ihe Contractor. iv. The Contracfar musf subrniE certifcates of insuranee fo the City for ail subcontractors prior to 1he subconlracfors commencing woric on lhe prajeet. �. 7he Co�tracka�s and a[I suk�cantractars' Insurance coverage sha!! be writfen by eompanies ficensed to do business in the Sfate af �'exas ak the time the poficies are Essued and shall be written by car�'�panies with A.M. Best ratings of B+VII or belter. 7he CiEy will accept worEcers' compensation coverage writfen by ihe Texas Workers' Compensalion Insurance Fund. vi. All endorsements naming the Ciiy as additional insured, waivers, and notices of cancellation endorsements as weil as the Certi�cafe of Insurance shall conlain the solicitation n�m6er and the following inforr�ation: City of nenton Maker�als Management Departmenf 909 B 7exas 5treet Denfan, Texas 76209 vii. The "othe�" insurance clause shail not apply io the Cily where lha Cily is an additional insured shown on any policy, It is intended that pal9cies required in the Contract, covering both #he City and the Contractor, shall be considered primary co�erage as applicable. viii, if insurance policies are not wriften far arnounts agreed fo wifh the City, fhe Cantractor sha[I carry Umbrella ar �xcess Liability Ensurar�ce for any differences in art�o�nts speelfied. ]f �xcess Liabilify Insurance is provided, it shalE fallow the form of the primary coverage. ix. The Cify sha[f be entitled, u�aon request, af an agreed upan location, and wifhouf expense, to review cer#ified copies af policies and endorsements th�reto and may make any reasonable requssts for defetion or revision or modification of pariicular poEicy terms, concEitions, limitations, or exclusions excepf where policy provisions are ssfablished by law or regulalions binding upor� either af the parties hereEo vr the underwriter on any such policiss. x. The City reserves the righE to re�iaw ihe insurance requiremenfs sei farfh during the effecti�e period of the Confract and to make reasonable adjustmenis #a Insurance eo�erage, limifs, and exelusians when deemed necessary and prudent by the GiEy based upon changes in statutory law, courf decisions, the cfaims history of fhe indusfry or itnancial condition of 1�e Insurance company as weli as ihe Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permii any insurance to lapse during the ierm af the Contract or as requirec� in the Gontract. xii. The ConEractor shall be responsible for prerniums, deductibles and self-insured reteations, if any, stafed Cor�iracE IFB 5048 Page 9 of 17 in policies. All deduciibles or self-insured retentions shal! be discfased on the Ceriiftcate of Ins€rrance. xiii. The Contractar shall endeavor to provide the City thi�iy (30) calendar days' wriEten notice of erosion af the aggregate limiis below occurrence limifs for all applieable co�erage`s indicaled within the Conlract. xiv. The ir�surance co�erage's specified in wit�in the soficitation and requ[remanls are required minimums and are not intended lo [imi# the res�onsibiiity or I[abifity of the Contractor. B. Specific Coverage RequiremenEs: Speciftc insurance requirements are cantained in the soEicitafion instrumeni. 33. CLAIMS: !f any claim, dernand, suit, or other ac#ion is a5sertec� against fh� Cvntracfor whieh arises under or concerns the Contract, or which coufd have a material adverse affeci on the Contracto�s ability fo perform thereunder, fhe ConUacfor shall give wrifien notiee fhereof to the City within ten {�f�) ca�endar days after receipt of notice by 1he Coniracior. Such nofice to the Ciiy shaE[ state the dafe of notification of any such cfaim, demanc�, suit, or other action; the rtames and addresses of ti�e cfaimant(s); the basis thereof; and ihe rtame of each person againsi whom such claim is being asserted. Suc� notice shall be de[ivered personally or by mai( and shap be senf to the City and to the Denian City A�torney. Aersanal delivery fo the Cily AtEorney shall be to City Hal�, 215 Easi McKinney Sfreet, [�enkon, Texas 76241. 34. NOiICES: Un[ess otherwise specified, all notices, requests, or other cammunications required ar appropriate to be given under #he Contract shall be in writing and shali be deemed delivered three (3) business days after postrr�arked if sent by U.S. Posia! Ser�ice Cerfifieci or Registered Mail, Rett�rn Receipf Requested. Notices delivered by ofher means shall be deemed deli�ered upon receipt by the addressee. Rouiine communicatior�s may be made by firsF class mail, felefax, or ofher commercially accepied means. Notices to the Contractor shall be sent to ihe address specified in the Contractor's pfFer, or at such ofhar address as a pa€iy may nofify the other in writing. Notices ko the Cify shall be addressed to fhe City af 901 � 7exas Streef, Denton, Texas 76209 and mar�Ced to the aftention of ihe �'urchasing Manager. 35. RIGHTS TO BID, PROP05AL AND CON7FtAC7UAL MAT�RIAL: AA materEal submittad by fhe Contractor to the City shall become prope�ty of the City upon receipf. Any portions of such material claimed by the Conlractor to k�e proprietary must be clearly mar[ced as such. Deterrninalion of the public nature of the materEal is subjecf io the Texas F'ublic Informatian Act, Chapfer 552, and Texas Governrnent Code. 36. NQ WARRANTY BY CITY ACAlNST INFRING�M�N7S: The Cor�tractor represents and warra�fts to the Cify that: (i) (he Contracfor shall provide #he Cily good and indefeasible title to the deliverables and (ii} the deliverables supplied by the Contracfor in accordanee w'tfh ihe specifcalions ir� the Gor�tract will not inir�nge, directly ar cantributorily, any patent, lradernar[c, capyright, trade secret, or any other intellectual property right of any ki�d of any third party; that no cfaims ha�e been made by any person or entily with respect to ihe ownership or operation of the deliverables and 1i�e Contracfor daes not know af any valid basis for any such claims. The Confractar sha�l, at its sole expense, defend, indemnify, ar�d hofd the City harrnEess from and againsf all liabilily, damages, and cosis (inc[uding � cou�t cosfs and reasonable fees of attorneys and other professiortals) arising aui of ar resulting frorn: (i) any claim that the City`s exercise anywhere in the world o� the rights associated with lhe CiEy's' ownership, and if applEcable, license righfs, and its use of the deiiverables infringes the intelleclual properly rights of any third party; or (ii) the Contraetor's breach of any of Cantracto�'s re�resentaiions or warranlies stated in this Confract. Ir� the e�ent of any such elaim, the Ctfy shal! have ihe right to monitor such claim ar at its optian engaga its own separate counse� to aet as co-counsel on the City's behaif. Fu�fher, Co�tracfor agrees that lhe City's speciCcaEions regarding the deli�erables shal! in no way diminish Contracfor's warranties or obligations ut�der this paragra�h and the Cify makes no warranty that the production, development, or delivery of such deliverables will not impacl such warranfies of Contracior. 37. CON�It]�N7IALITY: ln order to provide the deli�erabies to ihe City, Contractar may require access fo ce�tain of the Cify's andlor its licensors' con�dential inforrnation (inclt�ding inventions, emp[oyee information, trade secrets, eonfdential know-how, confidential business information, and other infarmation whieh ihe City vr its licensors consider confidential) (collecEi�ely, "Confdential Inforrrtation"). Contraetor acknowledges and agrees thai the Confidential Information is the valuable proper#y of tFte City andlor its licensors and any ur�at�thorized use, disclosure, cEissemination, ar other release of the Confidential Information wi[I s�bstanf€ally injure the Ci#y andlor its ficensflrs. The Cor�iractor (fncludi�g ifs emplvyees, subcontractors, agents, or representatives} agrees that ii will maintain the Conf'rdential inforination in striet confidence and shall not disc�ose, disseminate, capy, divulge, recreate, or otherwise use the Confidenfial Informatian witi�aui the prior writEen consenf of the City or in a manner nat expressly permitfed under this Agreement, un[�ss the Con4ident�al Inforrr�ation is required to be disclosed by law or an order of ar�y court or other governmental authorify with proper jurisdiction, provided the Caniractor promptly notifes the City before disclosing such information so as to permit lhe C€Ey reasonable time to seek an ap�rapriate protective order. The Conlractor agrees to use proteclive measures no fess stringent than the Contractor uses within its own business fo protect its own rrtost �a1ua6Ee information, which prokective ttteasures shall undar a!( circumstances be at feast reasonable measures to ensure ihe confin�ed confideniiality of fhe ConfidenflaE ]nformation. Contract IF8 5048 I'age 70 of 17 38. OWNERSHIP ANC1 US� OF DELIVERASI.�S: �he City shall own afl rights, titles, and interes#s throughou# ti�e worid in and to the deliverables. A. Pater�ts. As to any pafentable subject matter contained in the deliverabfes, the Contractor agrees to disdose sucf� �aientable subject matter io fhe Ciiy. Furl�er, if requesied by the City, fhe Contractor agrees to assign and, if necessary, cause each of its employees to assign the enUre right, tltle, and interest to specifie inventions �nder such patentabie subjecl matter to 1he City and io execute, acknowledge, and deli�er and, if necessary, cause each of its empioyees to execufe, acEcnowiedge, and deliver an assignment of ieiiers paie�t, in a form fo be reasonably approved by fhe City, to tha C]ty upon request by the City. 8. Copyrighis, As to any delive�abfes con#air�ing copyrightable subject maiter, ihe Contractor agrees fhaf upon l�eir ereatior�, sueh deliverables sha!! be considered as work made-for-hir8 by ihe Cor�traetor for ihe City and the City sha(I own all copyrights in and #o such daliverabEes, provided howe�er, that nothir�g in this Paragraph 38 shali negate the City's sole or joint ownership of any s�tch deliverables arising by virtue of the City's sofe or joinf auihership of such de[iverables. 5houfd by opera#ion of Iaw, s�c� del[�erables not be considered works made-for-hire, fhe Contractor hereby assigns io fhe City {and agrees fo cause each vf ifs em�loyees pro�iding services to the City hereunder io execuie, acknowledge, and deli�er an assignrr�ent fo the City of� all woridwide right, tifle, and interesk it� and to such de{iverables. With respect to such work mada-for-hire, khe Gontractor agrees to execute, acknowledge, and deliver and cause each of its emp�oyees providing services to the City hereunder to execute, acknawledge, and deli�er a work-rnade-for-hire agreement, in a form ka be reasonably a�proved by fhe Cily, fo lhe City upon delivery of such de[i�erables to lhe City or ai such other lime as fhe Cily may request, C, AdditionaE Assignmenks. The Contractor furiher agrees to, and i( applieable, eauss each of its empioyees to, execute, acknowledge, and deEiver a[I applicat�or�s, specifcaiions, oaths, assignmer�ts, and all other ir�strurrtents which fhe City might reasonably deem necessary in order fo apply for and obtain copyrighf protection, mask work regislration, lrademark registration andlor proiection, �etters patent, or any similar rights in any and al[ countries and in order to assign and convey to the Cify, its suceessors, assigns and nom9nees, ihe sale and exclusive right, title, and interest in and to ihe deli�erables. The Contractor's obligations io execute, acknowledge, and deli�er (or cause to be executed, acknowledged, anc� delivered) insfruments or papers such as those described 9n this Paragraph 38 a., b., and c. shall continue after the termination of tf�is Contract wi#h respect to such deliverables. In the even# the City should not seek to abtain eopyrighf protection, mask work registratian or patent protectior� for any of the deliverables, buk shou[d desire to keep the same secret, ihe Contracfor agrees to lreat the same as Contdentia! fnformaHon under the lerrns of Paragraph 3T abo�e. 39. PUBLICATIONS: A!I pubfished maEeria[ and wriften reports submitted under ihe Goniract musf b� originally developed rrtaterial unless otherwise specifically provided in the Contract. When maferial not originally developed is included in a reporf in any form, fhe source shal� be idet�lifled. �0. ADVERTlSING: The Contractor shall not adverfise or publish, wifhout lhe Cify's prior conse�t, fhe fact thaf the City Ftas entered into the Contract, except to the extent required by law. 41. �IO COIViINGENT F��S: The Contractor warranis tha# no persort or selling agency has been employed or retained to solicif or secure 1he Contract upan any agreement or understanding for cammiss�on, percentage, brokerage, or contingent fee, excepting k�ona fide em��oyess af bona f�de established comrnercial or selling agenciss maintainec{ by the �ontracfor tor 1he purpose ot securing business. For breach or �iolafior� of thES warranty, the City shalf have the right, in acEdiEion to any other remedy available, fo cancel the ConEract without IiabiEify and fo deduet from any amounts owed to fhe Conlractor, or ofhen�vise recover, the full amount of such cornmission, percenkage, brolcerage or contmgent fee. 42. GRATUITIES: 7he Cify may, by wrilten notice to ihe ContracEor, cancel the Contract wilhout liability if it is determined by lhe City thaf gratuities were offered or given by the Contraclor or any agent or representalive of the Conlractor to any ofticer or employee of Ehe Cily of Denton with a �iew ioward securing the Contracf or securing fa�orabfe Ereatment wifh res�eet to the awarding or arner�ding or the making of any determinations with respeci to the performing of such cantract. In the e�eni lhe Contract is canceled by the Cily pursuant to ihis provision, the Gily s�all be entiiled, in addition to any ofi�er righfs and rerr�edies, to recovet� or withhold fhe amount of the cost incurred by the Contracfor in pro�lding such grafuiiies, 43. PROHIBITION AGAINST P�R50�IAL fNTEREST 1N COIVTRACTS: No officer, empfoyee, independent eor�sultani, or elecled o�c�al of the Cify who is involved in the de�elopm�nt, evaluafion, or decision-maKing process of the periormance of any solicitation shalE ha�a a financial [nterest, direci or indirect, in lhe Contract resuiting irom that solicitaiion. Any wi[Ifui viofation of th9s seciion shall constituf� impro�riely in o�ce, and any officer or employee guilty thereof shall be subJeck #o discipfinary action up to and including dismissal. Any violaEion of ti�is prov[sion, wilh the [cnowledge, expressed or impiied, of tha Confracfor shal! render the Contract �oida6le by the Cily. The Conlractor shall com�lete and submit the City`s Conf�ict of Inter�;st Questionnaire {Attachment B). Coniraei IFB 5048 Page 1'i Of'f7 44. INDEPENDEN7 COt�TRACTOR: The Contract shall no# be cons#rued as creating an employerlemployee relationship, a partnership, ar a joint venture. The Contracior's services shal{ be those of an independent confrackor. The Conirac#ar agrees and understands that 1he Contract does not grar�t any rights or priviEeges estab�ished for employees of the City of oenton, Texas for the pu€poses of income tax, wlthholding, social security taxes, vacalion or sic[c feave benefEfs, waricers corr�pensation, or any other City employee benefit. The City shall not ha�e superr�ision and contraf of the Contracfor or any em�fayee af the Contraclor, and it is expressly underskooc{ that Conirac#or shap pe�fiorm tha services hereunder according to the aEtached specifications at ihe general directivn of the City Manager of ihe Cily of Denion, Texas, or his designee under fhis aqreement. 45. ASSIGNMENT-D�LEGATION: The Contract shall be binding uport ar�d ensure to the benefit of ti�e City and fhe Confraetor and their respecti�e successors and assigns, provided howe�er, that no righ# or inferest in the Contraci shalf be assigned and no obligation shall be delegated by the Contractor without the prior wriEten consent of the Cify. Any attempfed assignrneni or delegalio� by the Contractor shall be �oid un�ess made in conforrnity with this paragraph, The Conlracf is not intended to cvnfer rights or ber�efits on any pe�'son, firm or entify not a party herela, it being the fnfenfian of the parties that there are no third pariy benef[ciaries to the Contracl. 46. WAIV�R: No claim or �ight arising ouf of a breach of the �onlracf ca� be discharged in whole or in pari by a waiver or renunciation of the cfa[m or right unless the wai�er or renunciation is supporked by consideration and is in wrifing signed by the aggrie�ed party, No wai�er by either the Cantractor or the City of any one or more events of defaulf by the oiher �arty shall operate as, or be consirued to be, a permanent wai�er of any rights or obligations ur�der the Gonteact, or an express or implied acceptance of any oiher existing or future default or defaults, whether of a similar or different character. 47. MODIFICAiIONS: The Confract can be mod9fied or amended only by a weiting sign�d by both �aarlies. No pre- peinfed vr similar terms an any !he ConErae#or invoice, order ar olher document sftall �a�e any farce or effect to change lhe terms, covenanis, and cond'flions of the Confract. 48. iNT�RPR�TATION: The Contract is infended by the �ariies as a final, camplete an� exelusi�e statemenf o# fhe terms of their agreemer�t. I�o course of prior dealing between ihe parties or course of pe�formance or usage vf the trade shall be relevant to supplement or explain any ierm used in the Conlract. Aithough the Coniract may have beet� substantially drafted by one party, it is the infent of khe parties that alE provisions be construed in a mar�ner to be tair io bofh parties, reading na pro�isions more sirict[y againsf one party or the oiher. Wher�e�er a ierm deflned by fhe Llr�iform Gomme�cia� Code, as enacted by lhe Siate of i"exas, is t�sed in the Confract, lhe L1CC defnition shall controf, unless otherwise defined in �he Confraci. �49. DESPUTE R�SOLUT[OIV: A. lf a dispute arises out of or relates to ihe Contract, or the breach thereof, the parties agree to negotiafe �rior fo prosec�ting a suif for damages. Howe�er, this seclion does not prohibit tha filir�g of a lawsuit to toll the running of a statufe of limitations or fo seek injuncfi�e relief. Either party may make a wrilten reques# fot' a ineetir�g bekweer� representafives of eac� party within fourteen ('f�4) calencEar days after receipt of 1he request ar such fater periad as agreed by the parties. �ach parfy shall include, ak a miniinum, ane ('f) senior le�e1 individual with decision-malcing authority regarding the dispute. The purpose of lhis and any subsequent meeting Is fo attempt in good faiih to negotiate a resolulivn of ihe disp�te, If, wifhin ihirty (34) ca[endar c�ays after such meeting, the pariies have not succeeded in r�egotiating a reso!€�tion of the dispuie, they will proceec� directly to medialion as described beEow. Negotiaiion may be waived by a writfen agreemenf signed by both par�ies, in which event fhe �arties rnay proceed directiy to �nediafion as described below. B. ]f fhe efforls to reso��e the dispute through negotiation fail, or fhe par#ies waive the negofiatlon �racess,li�e parties rr�ay select, within E�[rly (34) calendar days, a mediator trained in mediafion skills io assist with resolution of ihe dispute, Shou[d they choose this option; the City and �he Gontractor agree io act in goocE faikh i� the seiection of the mediafor and io give consideration io qualifed inciiv[duais n4minafed to act as mediafor. Nolhing in the Contract prevents ihe parties from reiying o� the skil[s of a person who is frained in ihe su6ject matfer of fhe dispute or a contract Enterpretation expert. If fhe parties fail ko agree on a medialor wifhin ihirty (30) calencEar days of initiation of ihe mediat�on process, it�e mediator shall be sefecfed by the Denton County Alternali�e Dispule Resolution Program (DCAP). The parties agr�:e to parlicipate in r�ediation in goad faith for up io ihirly {34) calencEar days from the date of fhe frsk mediation session. 7he City and �he Cortfractor wiU share the mediafor's fees equally a�d the parlies will bear their own cvsts of pa�ticipation such as fees for any consultanis or alforneys ihey may utilize to represent them or otherwise assis# them in the mediation. 50. JURESDiCTION AND VENUE: `fhe CQntraci is made under and shall be governed by the faws of the State of Texas, ir�c[uding, when appiicabfe, the Uniform Gomr�'tereiaf Code as adapfed in 7exas, V.T.GA., Bus. & Comm, Code, Chapter 'E, excluding any ruie or princi��e fhat woufd refer to and apply the substantive law af another state or jurisdictlon. Afl issues aris9ng frorn this Conlract sha11 be resolved in the courls of �Jen#on Counfy, Texas and the Contract [FB 5�48 Page 12 of 17 parties agree to submit to 1he excfusive personal jurisdiction of sueh courts. The foregoing, howe�er, shal! not be construed or inferpreied to limit or resirict the right or abiliiy af fhe Cify to seek and secure Irtjunctive reliei from any compefenf authority as conEemplated herein. 51. INVALfDIiY: The invalidity, ilfegality, or unentorceability af any provision of the Contract shall in no way a�fecf the �al�diEy or enforcea�iliEy of any other portion or �rovision of the Contrack. Any void pravision shall be deemed severed from tha Contract and fhe balance of the Contracf shall be constrcred and enforced as i� the Con#ract did not confain the particufar portion or provision held to be �oid. The parties further agree to reform the Confract to rep�ace any sfricEcen provision with a �alid provision that comes as close as passible fo the intent of the stricken provision. Th� pro�isions of #his sectio� shall nat prevent this enfire Contract from being void should a provis9on which is lhe essence of the Confract be determined to be void. 52. HOLI�AYS: The following holidays are obse�ed by #he City New Year s bay (observed) MLK Day Mernorial Day 4th of July Labor Qay ihac�ksgiving Day Day After Thanksgi�ing Christmas �ve (observed) Christmas nay (observed) New Year's aay (observed) If a Legal Fioliday falEs on Saturday, it will be obserrred on the preceding Friday. ff a l.egal Holic#ay fails on Sunday, ft will be observed on the following Monday. Norrr►al hours of operation shall be between 8:00 am and �4:00 prr�, Monday ihrough Friday, excfuding Cily of C}enton Holidays. Any scheduletE daliveries or wark per�ormance not withi� #he normal hours of aperaiion m�st be appro�ed by the Cily Manager of Renton, Texas or his authorized designee. 53. SUF2VIVAB1LlTY OF �Bl.1GATlONS: A!I pro�isions of the Contract thai irnpase confinuing obligations on lhe pa�lies, including but not �imifetE to the warranty, indernniEy, and confidenfiality obligations of ihe parfies, shall survi�e the expirafion ar termination of the Contract. 54. NOI�-SUSPENSION OR DEBARMENT' CER71FiCA710N: The City of �enton is prohibiied from corttraciing wifh or making prime br sub-awarcEs to pa�ties that are sus�ended or debarred or whose principals are suspended or de6arred from Federal, State, ar City af Denion Contracts. By acee�ting a Contract with the CiEy, the Vendor certifies lhat its firm and its principals are noi currenfly suspended or debarred from doing buslness with 11�e �ederal Government, as ind9caked by fhe General Services Administration L€st o# i'arties �xcluded from �ederai Procurement and Non-Procurement Programs, the Stafe of 7exas, ar the City of Denton, 55. EQUAL pPPQRiUNITY A. Equal Employment O�porfunity: No Offeror, ar Offeror's agent, sha![ engage in any disceiminatary empioyment practice. �fo person shafl, on the graunds of race, sex, age, disability, creed, cofor, genetic testing, or nafional origi�r, be refused the benefifs of, or be othen�vise subjecied Ea d'tscriminatian under any aetivities resu[ting from this ftFQ. B. Americans wiih Dlsabilities Act (ADA) Compliance: No �fferor, or Offeror's agen#, shall engage in any discriminatory ernploymenl practice againsk individ�als with disabi�ities as defined in the ADA. 56. RUY AM�RICAN ACT-SUPPLI�S (NO'T APALICABLEj 57. R�GNT TO INFORMATION: The City of benton reserves the rigE�t ta use any and all information presente� in any response to this solicitation, whether amended or not, except as prohibiled by law. Selecfion of rejeclion of the submiltai does not aifect fhis right. 58. L[C�NS� FEES OR iAX�S: Provide� 1he soiicitalion requires an awarded contracfor or supplier to be licensed by the State of Texas, any and all fees and faxes are lhe responsibility of fhe res�onder�t. 59. PREVAILII�G WAGE RAT�S: Ail respondenks will be required to comply wifh Provision 5959a af "Ve�non's Ar�notated Civil Siaiutes° of the State of Texas with respect to the payment of prevailing wage rafes and prohibifing discriminaiion in the empfoyment practices. Mtp:llwww.access.qpac[a�fda�isbaconlfx,hlrnl Contraet I�B 5048 Page 13 of 17 6�. COMpLIANCE W1TH AL� STA7E, FEDE�AL, AND LOCAL LAWS; The contractor or supplier shall comply with aEl State, �ederal, and Locaf iaws and requiremenfs. The F2espondent must eompEy with al� applieable laws ai all times, induding, withaut limifation, the tollowing: (i) §36.02 of fhe TexaS Penal Code, whic�t prohibits brii�ery; (ii} §36A9 of the Texas Penal Code, witich prohibi#s ihe effering or conferring of benafits #o pub�ic servants. 7he Respondent shall gi�e all notices and eomply with ali faws and regulations applicable to furnishing and periormance of tE�e Gontract. 81. FEDERAi., STATE, AND LQCAL REQUIREMEIVTS; Respondent shafl damonstrate on-site compEiance with the �ederal Tax Reform Act of 9986, Section 1706, amending Seclion 53Q of the Revenue Act of of 9978, dealing wit�t issuance of Form W-2's to common lavr employees. Respondenf is responsif�le for both federal and State unemployment insurance coverage and standard Worker`s Compensation insurance co�erage. Respondenf shalf ensure campliance with all federal ancf Stafe fax laws and withholding requiremenfs. Tha City of QenEon shal( not �e liable fo Respondant or ifs ampfoyees for any llnemP[oyment or Wflr�Cers' Compensation coverage, or fedarai or State witf�halding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or lasses resulting from Res�andenl's amission or breach of this Seclion. 62. DRIIG FR�� WOfiKP�AC�: ihe contrackor shall cor�ply wifh the appficable pro�isions of the �rug-Free Work Place Act of 1988 {Public l.aw 100-690, Tit[e V, Subfilla D; �41 U.S.C. 701 Ei S�Q.} and maintain a dr�g-free work environment; and the final rule, go�ernment-wide requirements for drug-free work place (grants), issued by lhe �ffice of Managemenk and Budget and fhe Depa�tment of �e#ense (32 CFR Pari 280, Subpar# F) to impEement the provisions of fhe Drug-Free Work Plaee Act of 1988 is incorporated by reference and the contractor shall compiy witi� ihe relevani pro�isions fhereof, including any amendments fo the fna[ rule that tnay hereafter be issued. 63. RESPOND�IVT [.IAB1LlTY FOR DAMAGE 70 GOV�FtNM�Ni t'ROp�R7Y: ihe Respondent shalE be liable for a[I damages fo government-owned, feased, or occ�pied property and equipment eaused by the Raspondent and ils em�layees, agenfs, subcontraetors, and supplie�s, inc[uding ar�y delivery or cartage eompany, in eonneciion with any performance pursuani to the Contract, The Respondent shall notify the City of Denfon Pracurement Manager in writing of any such damage witF�i� one (1} cafendar day. S�. �OFtC� MAJEURE: The City of Denton, any Customer, and #he {tespandenf shall not be res�onsible for perFormance under the Contract shoufd it be prevented from performance by an act of war, order of Eegal authority, act of Goci, or otfi�er unavo�dabfe cause not aitri6utable fo the fault or negligence of the City of Denton. In #he event of an acc�rrrence under this Section, the Respvndenk will be exeused irom any further performance or observance of the requirements so affected for as �ong as such circumsianees pre�ail and the Respondenf contin�es to use commercially reasor�able efforts fo reeommence performance or observance whenaver and fo whate�er ext�nt posslble without defay. ihe Responder�t shall immediately no#ify the City of [Jenfon Procuremer�t Manager by felephorte {to be confirmed in wriling within fi�e (5} ca[endar days of the inception of such occurrence) and describe af a reasonabls level of detaii fhe circumstances causing the non-performance or delay 9n perfarmance. 65. NON-WAIVER OF �IGFiiS: Failure of a Parly io require performance by another Parfy under t�e Conlract will not affect the righl of such Party fo require perFormance in the future. No delay, failure, or waiver of either Parly's exercise or parlial exercise of any righf or remedy under the Contract shaEl operate fo limit, im�air, preclttde, cancel, waive or otherwise affect such right or remedy. A waiver by a Pariy of any breach of any term of the Contract wi1E nof be consfrued as a waiver of any con#inu9ng or s�cceeding breach. 66. NO WAIVER OF SOVERE[GN IMMUI�ITY: The Parlies expressEy agree lhat no provision of the Confract is in any way ir�tended to constifute a waiver by the City of Denton of any immunifies from suit or from Eiability fhaf fhe Ciiy of Denion may ha�e by operation of law. 67. R�GORpS RE7ENilOIV: The F2espondent sha11 retain all financial recards, supportirtg documenis, statistical records, and any other records or books refaking to lh� performances calied for in the Contrack. 7he Res�ondent shall retain al! such records for a period of four (4) years after fhe expiraEion of the Confract, or until tha CPA or Stafe Auditor's ��ce is saiisfied khat a�l audit and litigatian matters are resol�ed, whiehe�er period is longer. The Respondent shall grant access to al! booKs, recorcEs and doctrmenfs pertinent fo the Contract fo the CPA, fhe State Auditor of 7exas, and any federal go�ernrrzentai enlity that has authorify fa review records due fo federa( funds being spent under the Contract. Contract IF8 5048 Page 14 of 17 EXHIBIT B SPECIAL TERMS AND C4ND�TIONS Contract Terms Contraet term shall be throt�gh August 3'i, 20'15, effective from date of award or notice to proceed as determined by the City of Denton Ptarchasin� Department, Renewal Options The City of Denton reserves the right to exercis� an option �o renew the contract of the �endor for two (2) additionaf one (1) year periods if agreed upon in writing by both par�ies. All t�rms and cor�ditians must remain the same for each optional additiona� renewal year. The pricing may be negotiated afiter the initia] cantract term. Conlract [�B 5048 P�ge 'f 5 of 17 EXHIBIT C SUPPLIER PROPOSAL � Quatation and Sales Canfracf � To: E�aren Sra�th -�Y cif Denion Dak�: 91i�17�12 Fram: .�son St�tell S�[t�l� f0 Lfi@ fEtEI15 di1EE �17�f�6AY5 O€F tI'!E �LF�I9i4f11� P`3�E. 4if� €�flC#� YQL 6t1 �ft8 ��oltowing material� for use en s:orrsfructi�rn of; Pr�ap��t Hame �em-Lime LaeatsaNts�cc+ �iE�r��enton �s�iat7ateti t5ate: •��ata�nsr en�y ptcke�p st�y tns�at[�a qual�d �bvva �6 ihe pro�ar�ti�rn iac�lty �ar fl�s r�a�tfal �i�e par ton. '�tF�i Hri7idliiQge 1941E b6 C81CU{�tsd SR+d h1A�d 8t Hea i1�6 01 d&i1N�[y_ S89 it1S tDfl6�d�t� i�.499 i�C �ItK1EaF��n. 'F�,�a! 5ur�f[ar�s an qaoas sflene►s mda�rls Itraf �harye and map n[�rUe r�ie fire7surci�a�rs et r�ia rin�e afdelFS�y. '1TiE� a�uvte w411 sxg�t€a In �lxty d� from da% ar� r�ata. iPtidn� base4 u�ari al1 quc��sl Es�a�mal�ia tfeing purc�taaad irasn T%3. Por Ins�ivi[�s�af pr�cfaaf pridng p[ea8e car�fsct yaur'E7� sa�ea xepreaenFa�lve. 'FYidng 6asa+cFF a� s y�ar ��tr�f vrith a��aaro� whlch m�y ha rte$u�laass( �nd ex�t�lssd �1�. i4cc�pi�l6yFurchaser TEKf[51HD4lSTRE�S 8 . 6 : .iasa� &tilweli 87�-6�7-8739 Contract IFB 5p48 Page 96 Of 17 • X� O EXHfBIT C SUPPLIER PROPOSAL CEMENT TREATED MATERIALS 1Q615 S�'At�fGLER ROAD, DALLAS, TEXAS 75220 7El,. 972-409-324� �AX 972-501-9304 w�nrw.txi.com Quo�ation and SaIes Confi�•act _ ,_ . �i_EBAS E., �� s�PER��RY�� City of Denton 3'�, 2012 Date: August Attn: Karen Smith 940-349-7100 Bid Daie: Subject ta terms and conditions, we are pleased to quoie fhe fol[owing for use irt the construction of: Job Name Located at 2013 Annuaf Cantract Denton, Texas Prices quofed are F.O.B. Slurry Plant Quantit U.O.M. Descr� tion Unit Price Cem-Lime S�perSlurry — d�livered & spread $165.00 /dry ton Conditions 1) Slurry loads are a minimum of 10 dry tons ta a maximum of 15 dry tons per load. 2) On the job site, we need to �a�e 20Q gallons of water available to help rinse oui sl�rry tanker. 3) The abo�e prices are for ihe refere�tc� projeci only during normal working hours. 4) TXI is not responsib[e for ihe mixing or compaction of cement. 5) This price is �afid thraugh A�ag�st 31, 2415. Conkract IFB 5048 Page 17 of 'E7 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITLJRE OF FLJNDS FOR THE PURCHASE OF CEM-LIME FROM TEXAS INDUSTRIES 1NC. (TX�, WHICH IS AVAILABLE FROM ONLY ONE SOURCE AND 1N ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL GOVERNIVIENT CODE SUCH PURCHASES ARE EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 5048-PURCHASE OF DRY CEM-LIlVIE AND CEM-LIlVIE SUPER SLLJRRY FOR STREET DEPARTMENT 1N THE ANNUAL ESTIMATED AMOUNT OF $300,000 FOR A FIVE YEAR ESTIMATED TOTAL OF $1,500,000). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or naniral monopolies; films, manuscripts or boolcs; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE N [_JIVIBER 5048 VENDOR Texas Industries, Inc AMOUNT $145/dry ton $165/dry ton super slurry SECTION 2. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 3. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY : APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY _.m ,��'.�--,� ,; � BY: 5-ORD-File 5048 tl�µ111II,"�tl*q.11u �'"h�j!�tl*IC.IItl� ;'q II..� AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Laura Behrens at 349-8844 ACM: Bryan Langley �'��` SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of LifePalc 15 Defibrillators from Physio Control, Inc., which are available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5123-Purchase of Defibrillators for the City of Denton Fire Department in the estimated amount of $560,000 for the replacement of fourteen units over a five year (5) period). FILE INFORMATION External defibrillators are life-saving devices utilized during the course of treating cardiac related medical emergencies. The Texas Department of State Health Services, the licensing agency for Emergency Medical Service (EMS) providers, requires the devices to certify a Fire Department as an Advanced Life Support (ALS) provider. Over the past five years, medical emergency calls have made up appro�mately 70 percent or more of the Fire Department's total call volume. Of the approximately 7,000 EMS calls and 5,200 resulting transports during this time period, 87 percent of the services provided were reported as Advanced Life Support. The Fire Department utilizes the LifePalc brand defibrillator and carries two models of the unit; LifePak 12 and LifePak 15. All Fire Department apparatus are classified as ALS units. Each front line fire and medical vehicle is equipped with a LifePalc. Reserve vehicles are also equipped with LifePalcs. Currently, there are 18 LifePalc units in service and three bacic-up units. Of the 21 units, 14 are LifePalc 12 models and seven are LifePalc 15 models. LifePalc 12 models are no longer being manufactured and cannot be purchased. Therefore, LifePalc 12 models are being phased out and all parts and services are being converted to the newer LifePalc 15 modeL Maintenance and service for the LifePalc 12 models will cease in 2018. Agenda Information Sheet December 4, 2012 Page 2 FILE INFORMATION (CONTINUED) The Fire Department currently utilizes LifePak models exclusively. LifePak is the industry leader in defibrillator equipment. Consistency in equipment is vital to the effective and efficient deployment of services. The equipment is interchangeable between all Fire Department apparatus. This also allows streamlined training and proficiency on the equipment. The LifePaks are integrated into our existing LifeNet program, allowing the transmission of patient information to the receiving hospital, and the Intermedix system which consists of patient care reporting and billing. Additionally, protocols established by the current Medical Control Director call for the use of LifePak defibrillators during the course of providing medical treatment due to the electrical current capacity (360 joules) that only LifePalc units can administer. New LifePalc units are purchased as part of an equipment pacicage when department vehicles are replaced; however, this process does not address the transition of equipment from vehicles that are not scheduled for replacement. In Fiscal Year 2011-2012, a supplemental pacicage was presented and approved for the implementation of a replacement program that would phase out older model LifePalcs by purchasing two new models per year over the next five years. This program toolc into account vehicles scheduled to be replaced within those five years. With replacements being made through a five year program, in conjunction with the acquisition of new vehicles, all LifePalc equipment will be updated by the 2018 deadline. The Fire Department could not identify any vendors within the city limits that supply the LifePalc defibrillator units. Physio Control, Inc. is the sole provider of the equipment in our marlcetplace. Physio Control, Inc. also holds the current maintenance agreements for the Fire Department's existing LifePalc units. Section 252.022 of the Texas Local Government Code provides that procurement of commodities and services that are exempt from competitive bidding, if over $50,000, shall be awarded by the governing body. RECOMMENDATION Staff recommends awarding the purchase of LifePa1c15 defibrillator units to Physio Control, Inc. to execute the transition of obsolete units through a scheduled replacement program and the purchase of new equipment with fleet acquisitions. The purchase amount includes accessory equipment and a five year maintenance agreement for 14 units and is estimated to be $40,000 per unit for a total estimated expenditure of $560,000. PRINCIPAL PLACE OF BUSINESS Physio Control, Inc. Redmond, WA Agenda Information Sheet December 4, 2012 Page 3 ESTIMATED SCHEDULE OF PROJECT A purchase order for two LifePalc units will be issued upon Council approval. The units are expected to be in service within 30 days from receipt of the purchase order. The additional units will be ordered as needed through a scheduled replacement program. FISCAL INFORMATION Each LifePalc unit costs approximately $40,000 but the actual price will be determined at the time of purchase. This cost includes the unit, accessories, and inclusion in the maintenance program. Replacement of the 14 obsolete units over five years is estimated at $560,000. In the current fiscal year, three units will be purchased in conjunction with the replacement of three ambulances. Additionally, two LifePalc units will be funded from operating account 320100.8535 to replace obsolete units. A quote in the amount of $77,59120 was obtained for the purchase of the two units and Requisition# 110222 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: Equipment Quote Exhibit 2: Sole Source Letter Respectfully submitted: � �� Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1-.�IS-File �123 C��.�-��--� 1 � � � � � A � To: Bredley l.ahart EMS and P10 Battalion Chiei Denton Fire {7epartment 332 E }iickory DEIVT4N, TX 7620i Pinone:(940} 349-8834 brad.laharkQcityofdenta�.r.am Exhibit 1 Quote#: Rev#: Quote Date: Sales Gonsultant: Q!I'-i Terms: Physia-Cantrol, Inc. 11811 Willows Road HE P.C7. Box 97423 Redrnond, WA 98073-9723 U.S.A rwrw.physio-control.com manv.medtronie.com iei 800.C42.1142 iax 800.732.0956 1-241876724 2 i 0/04f20 i 2 Elizabeth Raberis 800-442-1142 x 72438 Fiedmand, WA Afl quotes subject to credit approval and the tollowing terms 8� cartditions Contract: None Exp D�te: 01102/2013 . �� :. � � • � .�� i . 1 99577-001256 - LP'15 v2 MONITOR/D€FIB, 2 533,295.00 54,994.25 50.00 528,300.?5 556,601.50 CPR, Pace, to 360j, 5Pt�2�CO3 42l G�, NIBP, CO2, Trend, B'i THE LIFEPAK 15 IS AN ADAPTIV 81PHASIG FULLY ESCAl.ATING ('i'O 360 JOULES) MULiI-PARAMETER MONITOWE}EFIBRILLASOft . 2 PAIR QUIK-CQMBO ELECTRQDES PER UN1� - 11996-000091, TEST l�pAD - 21330-d41365, IN-SERVICE DVD - 2i33D-001486, SERVtCE MANUAL CD- 27300-0080&t (one per order} and SH1P KI7 (RC Cable) 41577-QOUOi26liVCLUQEC}. HARD PAC7DLES, BATI'ERIES, CARRY CASE NOT INClUDED. 2 4157T-000004 • STATION BATTERY 2 Sti,585.00 5237.75 SO.QO 51,347,25 S2,694.50 CHARGER AC OPERATION FOR STATIQNARYAPPLICATIONS, FOR USE WITK THE LI-ION 5.7 AMP SATTERY. INCIUDES AC POWER CORD, MC7UNTENG BRACKET A{�iD QPERAT[NG INS'fRUCT10NS 3 21334-004178 - LI-ION BATTERY 5.7 AMP 'i0 S40d.00 580.00 50.40 5340.00 S3,d00A0 HOUR CAPACITY F2ECFiARC�EABtE Li'�FiIUM-IflN, WITH FUEL GAUGE 4 11996-0OQ323 - MASIMO SET RED Lh1CS � 2 Si90.44 528.50 SD.dO Si65.5f} 5323.00 PATIENT CABLE - d FEET RED I.NC-04,PATIENT CABLE,4FT,REF 2Q55 5 1i471-000032 • RAINB4W DCI-DCS,ADULT 2 S819.OQ 5122.85 SOAO SB96.15 51,392.30 REUSE SENSOR,BFT,REF 240T RAINBOW DCI-DCB,AGULT REUSE SENSC}R,SFT,REF 24Q7 6 ti171-000033 - IZAINBQW DCEP-DC8,PED 2 S$19.00 5422.85 SO.QO 5896.15 51,392.3d REUSE BENSOR,8FT,i2EF 2640 • RAf�J80W DCiP-DGB,PED REUSE SEIVSOR,BFT.REF 2540 7 11160-000001 - NIBP CUFF- 2 S19.04 52.85 S0.40 516.15 532.30 REUS�ABLE,INFANT NIHP CUFF-REUSEASLE,INFAhJT , 8 ii160-000003 - NIBP CIiFF- 2 822.00 53.30 S0.00 518.70 537.40 REUSEABLE,CNILD NlBP CUFF-i�EllSEABI.E,CF{!LD c 1 • .. .i i -�l C�uate##: Rev#_ Quote Date 9 11160-000045 - NISP GUFF- 2 527.00 REUSEABLE,A�ULT , IViBP CE1FF-REUSEABLE,AbIJLT 10 �1160-004007 - NIBP CUFF- 2 s�a.oa REUSEABLE,LARGE ADULT NIBP CUFF-REUSEABiE,�ARGE ADULT 1i 11160-000409 • NIBP CUFF• REUSEASLE,X- 2 545.fl0 LARGE ADULT �lIBP CUFF- REUSEABLE,X-l.ARGE ADULT 52 11577-OOOOQ2 - KCT - CARRY SAG, MA[N BAG 2 S268.00 ACCESSORY ii577-Ofl0002 LP15 Kli CRY BAG. Indudes shoutder stra� 1�577-OOOOOi i 13 11220-000028 • Top Pouch 2 54$.Op ' Storage for sens4rs and electrodes. Insert in place oF standard paddies. 14 1126p-004039 - KIT - CARRY BAG, REAR 2 569.40 POUGN KIT - CARRY 8AG, FtEAR POUCH i5 MC99S-0Oi045-5 - POS - 5 YEAR . Qn-site 2 55,165.04 repair and ane inspectian per year. Price per �nit. Ccmtracts with 4 and 5 year terms rr�ust be paid in f�ll up front i6 SQ999-004118 -ZONE TRAVE� CNARGE: 5 S75.d0 ZONE 2 54.05 S4.50 56.75 540.20 57.20 S10.35 50.00 i-2a�a7s�2a 2 10l04/2012 S4A4 522.95 545.90 SOAO Sz5.50 551.00 50.00 538.25 576.50 SO.OU 5227.80 5455.6Q SO.Qd $46.80 S$1.60 so.oa 558.65 51i7.30 SOAO 55.165.00 Si0,330.00 50.00 S0.00 S75.Oa 5375.00 sua -ro-ra� s�7,aas.2a ES�iIMA7ED TAX SO.OQ ESTIMATED SHIPPING & HAND�ING 5185.Od GRAND TOTAL $77,59'i.20 Prr icing Summary Totals �� " List Price: �� S89,ti77.00� Cash Discounts: - Si1,770.$0� � _ _ �__. _� ___- - _____ - - �� i Tax + S&N: __�_ - - - _. _� �.� '� ��85.00 ;� GRAND TOTAL FQR THIS QUOTE $77,591.20 0 TO PLACE AIV ORDER, PLFASE FAX A COPY OF THE QU{7TE AND PURCHASE ORDFR TO: # 800-T32-0956, ATTIY: REP SUPPQRT PHYSIO-CONTROL, INC. REQUIRES WRII?EN CUSTONSER APPROVA� (AUT1iORiZED SlGiVATURE) VERIFtCA'fION OF THIS OF2DER.A PURCHASE QRDER IS REQUIRED ON AI.L ORDERS 510,000 OR GREATER BEFORE iVAME APPIICAB�E FREIGH7APlQTAXES.THE UNOERSIGN�D IS AUiHOFtIZED i0 AGCEPT 3NI5 ORDER IN ACCORDANCE TIii,E WITH THE TERMiS AA1D PRICES DE�lOTED HEREIN. SIGN "f0 THE RIGHT: DA'fE Ref. Cade: Mi-I1578723pVt-3WOBKQ L�Stte.� iaxes, shipping and handling fees are estimates only and are subject ta change at the time o! order. Shipping and handling applies to ground transpori only. Physio-Contral will assess a 5 i 0 handting fee on any order less than 520d.00. Above priang vaiid anly if a!1 items in quote are purchased (apUonaE items nat required). To receive a trade-iri credit, Buyer agrees tn retum the krade-in de+rir.�(s) within 3Q days ai receipt of the replacement tiev�ce(s) to Physia Ca�trol's ptace of busirress or ta an authorized Physio-Canvol representative. PhysiaGontrol will provids inskructions ic�r retuming the device(s) and will pay for the assaaated shipping cost. In the ever�t that Erade-in device(s) are not received by Physio-Contral within the 30-day window, Buyer acknowledges that this quote sha11 cans6tute a purc�rase order and agrees to be invoieed for the amouni oi ti�e trade-in discount. lnvoice shaq be payable up�n receipt. Items listed above at no change are induded as part of a package discount ihat involves the purci�ase oi a bundle ot ikems. Buyer is solely responsible for apprapriaiely allocating the disoouni extended on the bundle when fulfiiling any reparting obligations it might have. It Buyer is ordering service, Buyer affrms read"ang and accepts t�e terms of #he PhysiaConirol, Inc. Technical Senrice SuppartAgresmer+i which is available from your sales representative or http:l/ww�v.physio-control.comluploadedFifes/products/service- plansJ TechnicaiServiceAgreemen t.pdf 3 TER�4S OF SAi.E Generel Terms Physio-Contral, Inc.'s acceptance oi the Buyers order is expressly condi6aneci on product avaifability and �he Buyer's assent to the terms set toRh in this document and its aE#achments. PhysiaContral, Inc. agrees to fumish the goods and services ordered by the Buyer oniy on these terrr�s, and the Buye�'s acceptance of any portian oE ihe goais and serviaes covered by this dacumeni shall confirm tt�eir acceptance by the 8s�yer. These terms constitute the complete agreernent between the parties and they shall govern any con�icting or ambiguous terms on the Buyer's purchase order or on ather dacuments sub�nitted to PhysiaConirol, Inc. by the Buyer. These terms may only be revised or amended by a written agreemeni signed by an auihorized representative of both par#ies. Pricing Unless othervvise indicated in this dacume�t, prices ot goads and senrices covered by this document shap be Physio-Contral, Inc. standard prices in sffect at the tirr�e a6 delivery. Prices do nat inGude Eceight insurance, freight forwarding fees, taxes, duties, import or exp+art permit (ees, or aay ottier sirnilar charge of any kind appl�cable to the goods and services cavered by this doasment. Sales or use faxes on domesiic (USA) delivaries will be invoiced '+n addition #a the price af ihe gaods and services covered by this dac�ment unless Physia Conuol, Inc. receives a oopy af a valid an exemption certificate prior to delivery. Please forward yaur tax exemp6an certifcate to the P�ysio- Conirol, Inc. Tax Department P.O. Bax 97006, Redmond, Washington 98073-9706. Pa�•ment Unless otherwise indicated in Ehis document or atherwise canfirmed by Physio-Controi, inc. in writing, payme�f iar goods and services supplied by Physio-Cantrol, lnc. s�a�l be subject to the fotlawing kerms: � C}omesUc (USA) Sales - Upon approval oi credit by Physio-Gontrol, Ine., 10d% af invoice due thirty {30) days after invoice dace. • lnter�ational Sales - Sight draft or acceptable (confirmed} irrevopble letter of credit. Physio-Crmtroi, Inc. may cha�ge the terms af payment at any Gme prior ta delivery by providing written noiice to t�e Buyer. Relif'err� Unless�o#herwise iridicated in this document, del9very shall be FOB Physio-Control, Inc. point of shiprneni ar+d tiUe a�d risk o{ loss shall pass to the Suyer at that point. Partial deliveries may be made and partial invoices sha[I be permitted a�d shall become due in accordanr�: with t�e payment terms. !n the absence af shipping insCructions nom Ehe Buyer, PhysiaControl, Inc. wi(I obtain transportaGan on the Buyer`s benaif and for 1�e Buyer's accaunt. Delsys Defivery dates are approximate. Physio-Contral, Inc. will not be liabie for any lass or damage af any kind due to delays in delivery or non- delivery resuiting from any cause beyond ifs reasonable cont�ol, induding but nat limited to, acEs af God, labor dispuies, the requirements of any govemmental authority, war, avil unrest, tercorist ac#s, delays in manufacture, obtain9ng any required license or permit, and Physia Control, Inc. inability to obtain goqds irom its usua! so�rces, Any such delay shall not be aonsidered a breach af Physio-Conirol, Inc. and the Buye�s agresment and the de(ivery dates shall be extended far the lengih of such delay. Inspectians and Reiurns Claims by the Buyer (ar damage io or shortages ot gaods delivered snall be made within thirry (30) days after shiprnent by providing Physio- ConVo�, Inc. with written notice of any deficier�cy. Payrs�ent is not conGngent upon immediate carrection of any defiaencies and Physia- Conirol, Inc. prior approvai is required betore the ret�m of any goods to PhysiaConi�al, tnc. Pi�ysia-Gontrol, Inc. resecves the righl ta charge a 15'�o restocking tee for ret�ms. The PhysiaControl Ftetumed Praduct Policy 9s located at http:ltwwnv.physio-control. comlup[oadedFileslsu pporUReturnPoficy_3308529_A.pdf. Sen•ice Terms A[I device service will be govemed by Ehe PhysiaControt, tnc. Technical Servic�s Support Agreerneni whicf� is available trom you� sales representative or http:ltwww.physio-cantral.caM�plaaded�ileslproducLs/service-planslTechnicaEServiceAgceemen#.pdf. A[I devices thal are not under PhysiaContral l.imited Warranty ar a current Technical Service Support Agreement must be inspected and repaired (it necessary) ta rneet original sped6cations ai then-current [ist prices prior ta being c�vered under a 7echnical Serviee Support Agreement. lf Buyer is orde�ing service, Buyer affrms reading and accepts the terms of t�e Technical Service Suppart Agreement. !�'arrann- Physio-ConErol, lnc. warrants its praduc#s in accordaricE: wikh the terms of ti�e standard Physio-Control, Inc. praciuci rvarranty epplipble to the prc3duct io be supplied. Physio-Control, Inc. warranis senrices and replacemenE parts pravided in performing such services against defects in acxordance with the teRns of the PhysiaCtintrol, Inc. service rvarraniy set forth in ti�e i'echnica! Service Suppurt AgreemenE. The remedies pravided under such warranties shall be the B�yer's sole and exdusive remedies. F'hysio-Control, Ir�c. makes no other warrant�es, express or implied, Mduding, without limltalion, NO WARF2ANTY OF MERC1iANi'ABiLI'i"Y C}R FlTNESS FOR A PARTICULAR PURP4SE, AND lN NO EVENT St-[Atl. PNYSItJ-CONfROL, INC. BE tIAB �LE FOR INCIDENi"AL, GONSECtUENTlAt, SPEClAt OR QTHER DAMAGES. Petent 8 Indemnitv Upon receipt of prompt nolice from the Buyer and with fhe Buyer's authority a�d assistanCe, Physio-Conkrol, Inc. agrees to defend, indemnify and hold the Buyer harmless againsi any dairn that the Physio-Cantrol, Inc. products cavered by tiiis document directly infringe any United States of America patent. �tiscellaneous a) The Bayer agrees thaE products purchased hereunder wiA nnt be reshipped or resold ta any persons or plac.es prahib9ted 6y the laws of the lfnited Statas af America. b} Through the purr,hase of PhysiaControl, Inc. products, the Buyer does not acquire any interest in any toaling, drawi�gs, design intarmation, corn�uter programming, patents or copyrighied or conFidential informatian related to said producis, and the Buyer ex�ressfy agrees not io reverse engineer ar decampile suci� praiucEs or related soiiware and informaGon. c} Ti�e rights and obligations af PnysiaControf, �nc. and the Buyer related to the purchase ar�d sale oi products and services dascribed in Ehis document shall be govemed by t�e laws af ihe State of Washingtan, United States af Amedca. All oosts and expenses incuned by the prevailing party related to enfarcemeni oi its rights under this document, inGuding reasonaafe attomeys fees, shap be reimbursed by �he at�er party. Exhibit 2 :��i�� i� ��.'��¢niC��.�l„ Irir ��a°��u��;�;ro�� October 8, 2012 �W�'"'m"" Chief Bradley Lahart ��` Denton Fire Dept. ��- � � � 332 E Hickory Denton, TX 76201 ?�r�^��° ��a4��u��qd:u��!��i°��i°u�� r�u��i�r�r Dear Chief Lahart: In response to your recent request, f am writing to confirm that Physio-Control, Inc. is the sole source pro�ider in your market�lace for: • New LIFEPAK� de�ices with 360 Joule capacity • Our factory refurbished line of RELI devices • LIFENET�' Data Management Solutions • The LUCAS� Chest Compression System • Factory-authorized inspection and repair services which include repair parts, upgrades, inspections, and repairs Physio-Control does nat utilize the services of any authorized rese�lers in the sale of these praducts and services in your marketplace. Best regards, ,,. ' � . ��. � a �� , � _ � Mark Watson Associate Contract Analyst Physio Cor�trol, Inc. 11811 Willows Road NE Redmond, WA 9$p52-2003 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITLJRE OF FLJNDS FOR THE PURCHASE OF LIFEPAK 15 DEFIBRILLATORS FROM PHYSIO CONTROL, 1NC., WHICH ARE AVAILABLE FROM ONLY ONE SOURCE AND 1N ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL GOVERNIVIENT CODE SUCH PURCHASES ARE EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 5123-PURCHASE OF DEFIBRILLATORS FOR THE CITY OF DENTON FIRE DEPARTMENT 1N THE ESTIMATED AMOUNT OF $560,000 FOR THE REPLACEMENT OF FOURTEEN UNITS OVER A FIVE YEAR (5) PERIOD). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or boolcs; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE N [_JIVIBER VENDOR AMOUNT 5123 Physio Control, Inc. $560,000 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or boolcs; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates the authority to talce any actions that may be required or pernutted to be performed by the City of Denton under File 5123 to the City Manager of the City of Denton, Texas, or his designee. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY : APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ._..... ,�'�-'�'. �--�,✓�--�-�. � BY: 4-ORD-File 5123 AGENDA DATE DEPARTMENT: ACM: SUBJECT AGENDA INFORMATION SHEET December 4, 2012 Materials Management Bryan Langley �, tl�tl11111,"�tl;"IIIIu �'"h�,j!�tl*II"'Iltl.�.,q II:;;;, Questions concerning this acquisition may be directed to Jim Coulter at 349-7194 Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract through the State of Texas Cooperative Purchasing Program for the purchase of liquid polymer for the City of Denton Pecan Creek Water Reclamation Plant as awarded by the State of Texas Contract 885-M1(885-77); and providing an effective date (File 5025-Liquid Polymer for Pecan Creelc Water Reclamation Plant awarded to Polydyne Inc. in the unit price amount of $1.07/lb for an estimated annual amount of $90,000 with four (4) one year renewal options). The Public Utilities Board recommends approval (6-0). FILE INFORMATION Liquid polymer is used at the Pecan Creelc Water Reclamation Plant (PCWRP) as an aid in coagulation and dewatering of the sludge discharged from the digesters. The polymer addition helps improve the dewatering process at the Belt Filter Press that is used to dewater the digested sludge. The dewatered sludge is then pumped to the compost operation for use in the composting process. The PCWRP currently uses Clarifloc CE-1366 polymer supplied by Polydyne Inc. An informal quote was received from Polydyne for $1.10 per pound for this fiscal year. The State of Texas Contract 885-M1 (885-77) is $1.07 per pound for this item, so a cost savings of three cents per pound can be realized by utilizing this contract. With the PCWRP currently using approximately 75,000 pounds per year, this will result in savings of about $2,250 annually. In addition, the State of Texas contract has annual renewal options through August 31, 2017. Therefore over the next five years, this could potentially result in a total cost savings of about $11,250. Staff is requesting to include the contract renewal option through August 31, 2017, in the purchase agreement with Polydyne Inc., subject to annual verification that a cost savings is realized using the State contract. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 12, 2012, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. Agenda Information Sheet December 4, 2012 Page 2 RECOMMENDATION Approve the purchase of liquid polymer through the State of Texas Cooperative Purchasing Program Contract 885-M1 (885-77) in the unit price amount of $1.07/lb for an annual estimated amount of $90,000 and an estimated five year contract amount of $450,000. PRINCIPAL PLACE OF BUSINESS Polydyne Inc. Riceboro, GA ESTIMATED SCHEDULE OF PROJECT The initial term of this contract is from October 15, 2012, through Augtist 31, 2013. The State of Texas has the option to renew this contract through August 31, 2017. FISCAL INFORMATION The liquid polymer will be purchased on an as needed basis from operating account 640100.6334. EXHIBITS Exhibit 1: Contract Pricing Sheet Exhibit 2: Public Utilities Board Draft Minutes Respectfully submitted: � �� Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1-.�IS-File �02� Exhibit 1 POLYDYNE Emailed to: karen.smith@cityofdenton.com October 15, 2012 Ms. Karen Smith City of Denton 901-B Texas Street Denton, TX 76209 RE: Polymer Price Quotation Dear Ms. Smith Polydyne Inc. appreciates your interest in purchasing off our State of Texas Water and Wastewater Treatment Chemicals Contract No. 885-M1 (885-77). The term of this contract is effective September l, 2(112 through August 31, 2013. Polydyne Inc. is pleased to offer you the following price quotation: PRODUCT PACKAGE Unit Price CLARIFLOC� CE-1366 2300 LB. TOTES $1.07/LB. *includes 5% discount off of list price Quotation Period: Prices are effective for the period of 10/15/2012 through 8/31/2013 Payment Terms: Net 30 days — No Discounts If you have any questions, feel free to contact Rick Johnson, Senior Technical Sales Representative at (281) 630-4591. To place an order, please call our Customer Service Department at (800) 848-7659. Sincerely, �� - Lawrence D. Grizzle Business Manager P.O. Box 279 • Riceboro, GA 31323 USA • Tel 800-848-7659 • Fax 912-880-2078 • www.polydyneinc.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Exhibit 2 DRAFT MINUTES PUBLIC UTILITIES BOARD November 12, 2012 After deternuning that a quonim of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, November 12, 2012 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Absent: Chairman Dicic Smith, Vice Chair Billy Cheelc, Randy Robinson, Barbara Russell, Leonard Herring and Li1ia Bynum Phi1 Gallivan Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: CONSENT AGENDA: 8. Consider recommending approval of the purchase of polymer for the Pecan Creelc Water Reclamation Plant from Polydyne Inc., a Corporation, using the State of Texas Contract 885- M1 (885-77) Water and Wastewater Treating Chenucals for the anlount not to exceed $90,000 per year through Augtist 31, 2017 beginning with FY2012 for a total amount not to exceed $450,000 (File #5025). A motion to approve item 8 was made by Board Member Cheek with a second by Board Member Herring. The vote was 6-0. Adj ournment 9: 53 am ORDINANCE NO. AN ORDINANCE OF TI� CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT THROUGH THE STATE OF TEXAS COOPERATIVE PURCHASING PROGRAM FOR THE PURCHASE OF LIQUID POLYMER FOR THE CITY OF DENTON PECAN CREEK WATER RECLAMATION PLANT AS AWARDED BY THE STATE OF TEXAS CONTRACT 885-M1(885-77); AND PROVIDING AN EFFECTIVE DATE (FILE 5025-LIQUID POLYMER FOR PECAN CREEK WATER RECLAMATION PLANT AWARDED TO POLYDYNE INC. IN THE UNIT PRICE AMOUNT OF $1.07/LB FOR AN ESTIMATED ANN[_JAL AMOUNT OF $90,000 WITH FOUR (4) ONE YEAR RENEWAL OPTIONS). WHEREAS, pursuant to Resolution 92-019, the State of Texas has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies or services can be purchased by the City through the State of Texas Procurement progranls at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered purchase order for materials, equipment, supplies, or services, shown in the File Number listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE N [_JIVIBER VENDOR AMOUNT 5025 Polydyne Inc. $90,000 SECTION 2. By the acceptance and approval of the above numbered items set forth in the attached purchase orders, the City accepts the offer of the persons subnutting the bids to the Building and Procurement Commission for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the Building and Procurement Commission, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the State of Texas, the City Manager or his designated representative is hereby authorized to execute the written contract which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal subnutted to the State of Texas, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or pernutted to be performed by the City of Denton under File 5025 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNg'ER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY w ,�, .-_-_.�.—�,.� __ _ _ �'''.�?�'/" F ,�`� BY: 4-OFtD-File 5025 tl�'µ111"'ll"'�tl*IIIIu �'"h�,�`2�tl*Illltl,�.,q II:` AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Phil Williams at 349-8487 ACM: Bryan Langley �� SUBJECT Consider adoption of an Ordinance accepting competitive proposals and awarding a contract for the purchase of fiber optical ground wire (OPGW) for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5030-Supply of Electric Utility OPGW Transmission Conductor awarded to Techline, Inc. in the not to exceed amount of $630,000). The Public Utilities Board recommends approval (6-0). RFP INFORMATION Denton Municipal Electric (DME) has transmission line projects approved in its Five Year Capital Improvement Plan that will require installation of up to 24.5 miles of fiber optical ground wire (OPGW). OPGW is a type of conductor that is installed as the overhead shield wire for a transmission line. The purpose of the shield wire is to protect the transmission line from lightning. The theory is that this grounded conductor will attract lightning away from the phase conductors. Transmission line design requires specifying the conductor so that pole strengths can be matched to the tension requirements. DME, based upon the recommendation from its designing engineer, chose AFL conductors as the brand to be specified in RFP 5030. Orders will be placed based upon project schedules. It is anticipated that a purchase of 26,400 feet of OPGW conductor and hardware will be placed immediately upon approval by the City Council. Request for proposals were sent to 267 prospective suppliers, including two Denton firms . In addition, specifications were placed on the Purchasing website for prospective suppliers to download. Two proposals were received. Confidential negotiations were completed and a Best and Final Offer (BAFO) was requested from both suppliers. The BAFO resulted in no additional savings. Proposals were evaluated based upon published criteria, including price, delivery and probable performance by the supplier. Techline's proposal provided the highest evaluated score, resulting in the best value for the City. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 12, 2012, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. Agenda Information Sheet December 4, 2012 Page 2 RECOMMENDATION Approve a one year contract, with four renewals, with Techline, Inc. in the not to exceed amount $630,000 over the potential contract term. PRINCIPAL PLACE OF BUSINESS Techline, Inc. Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT The initial term of the contract is for one year ending December 4, 2013. The City and Techline, Inc. shall have the option to renew this contract for four (4) additional one year periods. FISCAL INFORMATION The costs for material purchased under the proposed agreement will be funded from project accounts on an as needed basis. The worlc proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission Transmission Cost of Service Program (TCOS). EXHIBITS Exhibit 1: Evaluation/Ranlcing sheet Exhibit 2: Draft Public Utilities Board Minutes Exhibit 3: Contract Respectfully submitted: � �� Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1 =AIS-File 5030 Exhibit 1 RFP #5030 Pricing and Evaluation Optical Ground Wire (OPGW) for Transmission Line Construction November 12, 2012 �roposal Pricing (FOB DESTINATION): Techline Irby EsT. B'd �NU� UOn�i Product Description Unit Price Estended Price Unit Price Estended Price Item Q�. (Est Annual) (Est Annual) SECTION A - CONDUCTOR 1 26.40o gT OPG�" Transmission Conductor (_AF'L DNO-8168 � ONLY) -�`OOD REELS $ 2.49 $ 65,7>6.00 $ 2A5 $ 64,680.00 Delivelti' 18-20 weelLS 18-20 weelLs NOTE: n�linimmu EscepCiona to tenua and 1�4annfachiring QtS' - condihiona. E1cepCions ;,;OOfk OPGR' Tolerallce -0°0, +�°o SECTION B- STEEL REELS - NOT RETURNABLE 1 Ea Steel Reel - 60" $ 650.00 $ 650.00 $ 700.00 $ 700.00 3 1 Ea Steel Reel - 72" $ 825.00 $ 825.00 $ 900.00 $ 900.00 4 1 Ea Steel Reel - 84" $ 1,250.00 $ 1,250.00 $ 1,>50.00 $ 1,>50.00 OTE: All Steel Reels are Non-Returnable SECTION C - ACCESSORIES B;d �T' Estended Price Estended Price Item `�NUai, Product Description Unit Price Unit Price QT� (s n�� UOnI (Est Annual) (Est Annual) 5 60 Ea Deadend $ 21>.78 $ 12,826.80 $ 220.00 $ 13,200.00 6 60 Ea 10" Linlc Plate $ 22.47 $ 1,348.20 $ 2>AS $ 1,407.00 7 60 Ea Anchor Shacicle $ 6.28 $ 376.80 $ 6.56 $ 393.60 s 60 Ea Chain Linlc $ 7.64 $ 458.40 $ 7.98 $ 478.80 9 120 Ea Suspension $ 77.01 $ 9,241.20 $ 80.4> $ 9,651.60 l0 120 Ea I-Clevis Eye 90 for Single Suspension $ 19.68 $ 2,361.60 $ 20.56 $ 2,467.20 11 180 Ea Bonding �'ire Assembly $ 24.91 $ 4,483.80 $ 26.02 $ 4,683.60 12 120 Ea VibraCionDamper $ >>.10 $ 3,972.00 $ >4.57 $ 4,148.40 13 180 Ea 1 Bolt Ground Clamp $ 17.07 $ 3,072.60 $ 17.85 $ 3,213.00 14 50 Ea Do��n Lead Clamp $ 21.17 $ 1,058.50 $ 22.10 $ 1,105.00 15 50 Ea Do��n Lead Clamp with Banding Adapter $ 27.70 $ 1,385.00 $ 28.9> $ 1,446.50 Do�m I ead Clamp with Lattice R'eb Adapter (for web 16 �� Ea �iiclaieaa np to 0.75') $ >2.77 $ 655.40 $ >4.22 $ 684.40 Down I ead Clamp with Lattice R'eb Adapter (for web 17 1� E � �iiclaieaa 0.75'-1.25') $ >2.61 $ 489.15 $ >4.0� $ 510.75 ls 15 Ea Do��n Lead Clamp with Lag Bolt $ 21A5 $ 321.75 $ 22.40 $ 336.00 19 7 Ea Splice Protector Sleeve - 60mm length $ 1>.> 1$ 93.17 $ 1>.90 $ 9730 20 7 Ea Splice Enclosure (bullet resistant) $ 6>7.64 $ 4,463.48 $ 650.00 $ 4,550.00 21 7 Ea Connector I�it for OPG�' Cable $ 58.91 $ 41237 $ 6L55 $ 430.85 7 Ea Connector I�it for �SS or Loose Tube Cable $ 58.92 $ 412.44 $ 6L55 $ 430.85 23 7 Ea Coil Bracket for SBO1 and Opii-guard $ 2>5.44 $ 1,648.08 $ 245.90 $ 1,72130 24 Ea Come along $ 440.96 $ 881.92 $ 460.00 $ 920.00 TOTAI, ESTID4ATED ANNCJAI, E�PENDITURE FOR SECTIONS B& C $i 52,687.66 $i Sd,82615 Deliveiy (weeks) 14-16 14-16 Minimum Order - E1cepCions $4,250 TOTAL ESTIn�iATED ANNUAL CONTRACT VALUE S; 118,d23.66 S; 119,50615 TOTAL ESTIn�iATED 5 YEAR CONTRACT VALUE S; 628,727.29 S; 63d,d7d.38 VALUATION so COST EVALUATION 80.00 7928 io DELNERY EVALUATION 10 10 io INDICATOR OF PROBABLE PERFORMANCE 10 9 ioo TOTAL EVALUATED SCORE 100.00 9828 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 DRAFT MINUTES PUBLIC UTILITIES BOARD November 12, 2012 After deternuning that a quonim of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, November 12, 2012 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Absent: Chairman Dicic Smith, Vice Chair Billy Cheelc, Randy Robinson, Barbara Russell, Leonard Herring and Li1ia Bynum Phi1 Gallivan Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: CONSENT AGENDA: 3. Consider recommending approval of a contract with Techline, Inc for the purchase of optical ground wire (OPGW) and accessories (RFP #5030 - awarded to Techline, Inc., in an amount not to exceed $630,000). A motion to approve item 3 was made by Board Member Cheek with a second by Board Member Herring. The vote was 6-0. Adj ournment 9: 53 am Exhibit 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND TECHLINE, INC (RFP 5030} THIS CONTRACT is inade and entered into this daST of A.D., 20_, b�T and bet�ve��i Tecl�line, Inc a corparatiot�, whose add��ess is 5�01 Marti�3 Sh�eet, Ft. Wortl�,__TX '16119, he�•einafter refer�'ed to as "Supplier," and the CITY 4F DENTON, TEXAS, a home ri�le iI1LlriiClj�c�1 COl'�701'21t10I1� l�ereii�after refer�•ed to as "Cit3�," to be effective �lpon app�•oval of tlie Dentoi� City Council aud s«bsec�uent eYect�iiou af tliis Contract by the De�iton City Mai�ager o�• liis c�uly �utho�•izeci designee. For and ir� consideratio�� of tl�e covenants a��d agreen�eiits co�Itained herein, and for the 1��utual benefits to be obtained hereby, the parties agree as follo�vs: SCOPE �i{' SERVICE� Supplier shall provicie products in accordar�ce �vitl� ille City's RFP # 5030 Eleetric Utilitv OPGW Traijs��iissioa� Conduetor, a capy a� wl�ieh is an file at the office of P�i�•cl�asing Agent and ineo�•porated lie�•ei�i for all ptuposes. Tkze Contract consists af this written ag�•ee�ne�lt aud the follo��=it�g iteins wl�ich are atiaclied he�eto, o�• on file, a�id incorpo�•ate� he�'ein �y refe�•eiice: {�} City of Denton's RFP SQ30 (on file at the of�ice af the Purchasing Agent) (b} Standaz•d Terms and Cont�itioYas (E��ibit "A") (c) Special Terms and Conditions (Ex�aibit "S") {c�) Fori�1 CIQ —�oi�flict of Int�rest QuestioY��aire (E:�hibif "C"}, {e) S�lpplier's Proposal. (E�hibit "D"}; These c�oc�mients r��ake �� il�e Contract docul�ler�ts and �vhat is called for by one sl�all be as �i�iciing as if called for by a�l. Ii� tlie eve�it o� an ii�consist�ncy or co��flict i�� any of the provisio�IS of tl�e Contract doci�me�lts, t��e incoi�sistency or coi�flict sl�all be resolved by giviilg ��•ecede�lce first to tl�e w�•itteil agreeinei�t t�ae�� to the contract documents i�l the order i�i wl�ich they are listed above, These doct�a��ents shall be refer��ed to collectively as "Conti�act Docui�ie��ts." RFP 5�30 Page 1 of 2� �N WITN�SS WHEREOF, tl�e �arties of tl7ese prese�its liave e�ecutec� tf�is ag�•eeme��t in the yea�• a►�d day �rst above «�ritten. ATTEST: JENNIFER V4TALTERS, CITY SECR�TARY iC APPROVED AS 'I'O LEGAL FORM: ANiTA BURG�SS, CITY ATTORNEY E: SUPPLIER BY: AUTHORIZED SIGNATURE D�t�: oi1a�� f�� .�a�� Nai�ie:�/ VLi f �,� ��i�ciwt, Title: �i�SYC1iC', �l�,S _��'fJ��,�� .��. �� . �{�-� � �i� ��f �� MAILING ADDRESS , �� Q PHONE NUMBER � ��'�� A �� FAX NiTMBER �c��e PRTNTED NAME CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: RFP 5030 Page 2 of 20 Exhibit A Ci of Den�au Standard Purchase Terms and Candi�ious Tizese sta»dard Tern�s ai�d Ca��ditions and ilte Te►��ns a►�d Coizditia�fs, Specificatioi�s, Dra�vings and ather �•eqt�ireinents inclt3�ed in tile CiTy of DeErton's solicitation are applicable to Coi�traefs/P��rehase Orders issued by tl�e Cit}� of Denton Ile�•ei��after referl•ed to as tl�e City or Bu}�e�• a��d ti�e Seller he►�ein afte�• refe�•red to as the Bidder, Cocztracto�• or Supplier. Any deviations mtESt be in �vriti��g and signed �y a representative of t3» City's Procu►•e�»e��t Depai�t�nezlt a��d tl�e Su�plier. No Ter��s a��d Co�iditions cantai��ed ir► tl�e Sellers �'roposa] respo��se, i�3ti�aice or State�ne��t sllall serve to inodify the te��fns set foj�h herein. If tiiere is a con�iict bet�vee�1 the pa•ovisio��s o�� the face of the Cantract/Pi�rchase OrcEe�• these «�rit�en provisio�is «=ill ta�:e precedence. By st�b�nitti�lg ai� Offer i�� respo�3se to the Solicitation, the Contractoe agrees tE�at the Coc�tract shall be governed by the follo�}�ing tei'n3s a��d coitcfitio�ts, unless e�;ceptio��s are d«i}� Eloted atld fully �iegotiated. Unless otlier�vise specifed in #3�e Coc�t�•aet, Sections 3, �, S, G, 7, S, 20, 21, and 3G shall apply only to a Solicitatiai� to purcf�ase Gaac3s, a�td Sections 9, ]0, 11 and 22 shall appl}� o�ily to a Solicitation to purcl�ase Ser��ices to be per•formed pri�lcipall}� at the City's preinises or an pubiic rights-of-�vay. l. CONTRACTOR'S OBLIGATIONS. Tlie Contractor sliall fiili�� and timely ��rovide �11 deli��er�bles descr�bed i�� the Solicitation ar�d in the Cont�•actor's Of1er ic� slrici accordance «�itl� tt�e terms, eove��►31s, and conditio��s of tl�e ContracE and alE appiicable Federal, State, and loeal ]a�1�s, riiles, aiid reg�i[ations. 2. �FFECTIVE DATEf1'ERM. Unless otl�er��ise s�ecified in the Solicit�tion, tliis Cc��tr�ct sh�il be effecti��e as af the date the contract is sig��eci by ihe City, a�id slial! contin€ae in effeel i�ntil all oUligatio►�s aE•e perFarmecE in aecordance «�ith thc Cof�tract. 3. C41�TRACTOR TO PACKAG� I)ELIV�RABLES: 'i'he Contracto�• �i�ill package delive�•al�les E�i aceordance u�itli good coinmc�•eial �raeiice a�id shall inclucte a packing Iist s3io�s=ing t]�e descri��Eia�t €�f elch iEem, the quantity and unit price unless other�a�ise pro��ided in tl�e S��ecificafions ar SE�p��Eementa[ Te�•ms and Condiiions, e�ch s1�i�E�ing eai�tainer shail be clearly and peE•nta�icntly �na�•ked as folio�vs: (a) "I'he Contractor`s aiaine and address, (l�) €he City's name, address and pu��el�ase oE•dcr or purcliase release ��un�l�er and thc pE•icc agreemeni n�amber if applicable, (c} Container nu�nbe�• and tatal number of containe��s, e.g. bax 1 af 4 bozes, a�id (d) die nu�nbcr of the coi3tainer 6earing the pac�:ing iist. The Co��tractar shalt bear cost of paekagi�tg. Delive�•ables sl�alt be su9tab3y packed to secu�•e io�i�est trat�s�SOirtaEioc� casts aE�d to confoj•it� to all tlic require�nei�ts of coc��mo�� carricrs and a�� appEicable specifieation. The Cit��'s count ar ��eight shalt be fiE3at anci co�ic[usive o�� shipEneE�ts not aceo�npanied by pac�:ing lists. �€. SHIPMENT UNA�R R�S�RVA'I'TON �'ROHIBIT�A: Tlie Co��tractor is not autliori�ed to st3iE� tlie dcliverables under reser<<atio►� and no te�ide�• of'a bill of ladiE�g �vill o�e��ate as � le�ider o1'deli��er�bles, S. TITLE & RISK OF L,OSS: Tit[e to aE�d risk of loss of tl�e de[iverables shal[ �ass to the City o►�ly ��hen the City actUally receives aiid �ccepts the c�eli��erables. 6. ➢ELIVERY TERMS ANll TRAN�PORTATION CHARGES: Delii�er�bles sha[1 be shipped 1'.O.B. poE��t of delivery wiless other«�ise specified in the 5upple�neE�t�l Tern�s and Conditions. U�zless ott�ern�ise stated in the Offer, the Coniractor's price sh�l1 be deei��ed to include �ll deli<<er5� and transpo3•t�tioi� eharges. Tlte City sltall ha��e t3�e E•ight to c�esignate `��liat i��etl�od of trinsJ�o3•t�tio�t sha[1 be usecf to ship tlie deliti�erables. The pl�ce of deti��ery sE3a11 be tt�at set #'oc•tfi tlie pu�•ehase order. 7. RIGHT Or INSPECTION AND REJECTTON: Tl�e Cily e��ressl�� reseE•��es all E•ights under [��, including, UE�t nat limited to the Unifa��m Ca�nincrcial Code, to inspect the delive��al�les ai deliti�e�•y befo�•e acce}�ting the�n, and fo reject defecti��e ar �ion-conforming dekiveraE�les. If li�e City E�as fl�e right to inspect ihe COE1tE'3C103''S, or ihe C€�nEeactat's Subeo��t�•acto��'s, iacilities, or tl�e deliverables at tFie Contractor's, or the Contractor's S�abco3it�•actoE•'s, prentises, the CantE•actor si�all furi�ish, or cause to be fur3iished, ��=itlio�t additional ci�arge, aEl ��casoE�ab[e facikilies ��id �ssistance to tlie City to facilitate sucl� i��spectioi�. RFP 5030 Page 3 of 20 8. NO REPLAC�MENT OI' D�FECTIVE T�NA�R: F�rery iender or delive3�y of deliverab[es niust iulEy co�7iply «=ith all provisions of tlie Cant�•aet as to tin�e of deli�rery=, qua[ity, and quantity. AE��= no��-co�npl��ing #ender si�all cai�stitUte a breaeh ar►d the Co��traetor sl�al] not have the right tc� substitute a co��forn�i��g cencfer; provided, �t�liere tlie tiine for perfof�Enac�ce lias nat yet expired, the Contractor n�a�� natiiy tlie Cit�� af ii�e in#e��tio�� to ctrre a��d �nay ti�en n��f:e a co«forn�ing tcnder �i�itl�in the ti�i�e al[otted i�� tE3e contract. 9. PLACE A1�ID CONDITION Oi+ �'YORK: The City sliatl p��avide tlle Co�ih�actor access to E1�e sites t��I�eE�e the Contractor is Eo perform tE�e se�•��ices as required in ordcr for the Contracior io perfort3i t3ie sec•vices in a time6y and efficient manner, in accordanec �s�ith and sub�eet to !he ��plicable secarity la«=s, r��les, and regulations. The Contractor ackc�o�i�iedges th�t it has saiisfced iEself as io tlie naftEre of the City's ser��ice rec�Ui►•ements a�id specifications, the loeation a��d essential cl�aracteristies of t3ie �vork sites, il�e quality� and c�ua��iity of niateria[s, eqttipEnent, ]abor ai�d faci[ities necessary to perfor�n t}3e ser<<ices, a►�d ar�y nther condition or st�te of 1ac# ��i�ich could in any �i�ay �ffect peeforEnance of the Contracta3's ob[ig�tioi�s u�ider the contract. i'he Co�tractor herel�y i•eleases aiid E�olds the City h��•intess fi•on� and against a�iy liabiiity or clain� fo�• cfa�nages of an�= kir�d or �tatu3�e if'il�e �ctual site or ser��ice conditions differ fi�aEn ex�ecled conditions. 1 fl. �i'ORKFORCE A. The Contraetor shall empEo�� oE�l}� o�•derl�� and co�npetent ��or[;ers, s�;il6ed iE� tf�e perforEna�ice of the ser��ices E��liie�� they lrill }�e►•foE•in �inde�• tE�e Contr�ct. B. Tha Contraefo3•, its em��Eoyees, st�bconh•actors, ai�d su€�co��tracto�'s e�3�ployees ma�� E�ot �ti=hi[e engaged i�� pa�•ticipa[ing or responding to a soEicitation or �i�l�i[e in the course and scope of delii�erii�g goods or services under a City of Denton contE•act or on Ehe City's property . i. ase or passess a firear�n, i��cludir�g � cancealed I�andgUn that is licensed under state la�r, e�ee}�t �s required b�� the terms of the cont�•acf; or ii. use or possess alcohoEic or otlier i3itoxiealing beve�•ages, i{legai drugs ar controlled subst�nces, nor i��ay sueli E;�o��kers be into�icated, o�• under il�e inElaence of �lcahol 03• drugs, on tt3e jo6. C. If the Cit}° oE• tl�e City`s re�rese��[ati��e notifies tlie Co�ttractor that any n�orker is incon�petent, diso�•derl}� or disobedient, f�as kno��ingly or repea[ed[y ��iolated safetJ� regeilations, ltas �ossessed a�ry firear�ns, or E�as possessed or «�as under the ii�flvenee of aleal�ol or drugs an the joU, tl�e Coniraeior sha[l iit�mediatelJ� �•e�7io��e such ��orker fi•ac�� Contcact sen�ices, and n�a5� not en�ploy sacE� �i�orker again on Conh•act se�•��ices «�ifliout t�e City's l3rior �R�•itten consent. I�n�igrafion; 'I'he Contraetor rep�•eseE�ts anct �R�arrants tE�at it s1�al[ com��ly �ti�iih ihe rec�ui�•en�ents oflhe im�nig�•atio�� Refornz and Control Act of 198G ajid 199D regarding e�nployi��ent >>erification and retention ofverific�tion foE•�ns for atty indi��iduals hired on or af#er No��ecnber 6, I986, �rha ��ill perfor�n a��y labor or se��ices ►mcter il�e Contrlct and tlie Illega) Ienmigc•atian Reform and Iimnigrant 12esponsit�ility Aat oE' 1996 ("IIRIRA) enaeted on SepteE3�ber 30, I 996. I1. C4AZPLTAIYCE '4'4'ITH H�ALTH, SATETY, AND �NVIRONA'IENTAL REGULATIONS: `('he Coniractor, it's Stibeont�•aciors, a►�d Elieir ��espective en�ployees, sl�aEl caEnply faE13� «�ith all applicable fcderal, state, aiid foeal E�ealth, safety, anci enviE�c�nme��ta[ 1a�5�s, ardinaiices, E�ules and reguEatians in the pe�•farmaitee of tf�e sen�ices, including but not limited to ti�ose pE•omulgated by the CiE�° and �y= the Occ4�p�tional Safety aE�d Hea[tl� Ad�ninist€ation (OSI�A). In case of eonf�iet, tlie ��ost st�•i��gent sa%ty require�nent sl�atl govern. Tlie Cantractoc• shall i�idemnify and k�old the City l�ar�nless fi�ai�� a�id agaiE�st all claicns, dema��ds, suits, actions, j�dginents, fines, penalties and [iability of every kind arising fi•oE� the l�reach ol� ihe ContE�actoE's obligations under this E�aragraph. Enviranmental Proteeiion: 1'I�e Respondent sk3�ll be in carnpliance ��itl� alI applicable standa►•ds, orde�•s, c�r regulatioE�s issued parsu�nt to tlie m1��dates of the Clean Air Act (d2 U.S.C. �7�3(31 et seg.) a�id the 1'eder�i Ll�ater Polli►tion Cont�•o! Act, as amet�ded, (33 U.S.C. �1251 ei ser�.). 12. I�IVOICES: A. 7'lic Contj•actor sha][ sut�mii separate ii��oiees i�z duplicate o�� each pu�•cE»se or�er or purchase release after each deli��er}�, lf partial sl�ipmeE�ts or deliveE•ies are atitliorized Uy tlie Cit��, a se�arate invpice must be sent fo�• eacf3 sE�ipit3e�ii or clelivery enade. � B. Pxopez• Invaices n��st inelude a unic�ue iuvoiee uum�er, fhe pw�ehase oi•cle�• or deliveiy order nu►nber a�zd the ��aaster �greement numbe►• if ap��licable, the Deparfutcnf's Name, �nd fhc name of fhe paint of contact for t�e De�artnie�it. ]E�voices st�all Ue itecnized �nc� trans�o�•tation RFP 5030 Page � of 20 charges, if any-, sh�lE be ]isted separatel}�. A capy of tE�e bi11 of lading a��d the fi•eight ��aybill, �R=lien ap�[icable, st�all be atlached to the im�oice. The Contractor's na��e, rcn�itta�ice address a�id, if �pplicabfe, ihe ta� ideniificatic�� n��nber on tl�e invoice n�ust etactl5� niatch tlie info�•i��ation in ti�e Vcndar's registration E��iEh the Citp. Unless other��ise instructecf ii� «<riting, the City ma}- rely oE3 the ret�3iitance address speeified on tlie Contracta�'s i�n�oice. C. IEivoices fo►• IabQr sha11 �nclude a copy of �ll tin�e-slieets �viEh trade labor rate and delivec•ables ordei• m�i��ber cEearly idenfified. TE�voices shal[ �lso include a tabulation of n�ork-hoi�rs at the apprapriate rates and gE•oE�ped b}� work orde�• n�tn�ber. Ti�ne billed for 1�bor shall be ]iEniied to liours actually �i�orked at ti�e �vork site. D. Unfess ot}�er�t�ise expressl�� atEtliorized in the Contraet, the Co��traeTor sl�all pass througl� al] Subca�iEracT and otl�er �uthorized eipenses at actual cost �t�ithout ��iarkap. E. Federal e�cise tases, State tases, or City sales tases must noi be included in tl�e invoiced aiitaunt. T��e Ci[�� a�ill furnish a ta� exemp#ion certificate ��on request. 13. PAYMENT: A. A[1 prope�� Em�oices neec� to be sent io Accounts P�yable, Agproved ii��oices �<<ill be paid n�ithin thirty (30) cale��dar da��s c�f [he City's recei�t of ihe deiiverables o�� of if�e in��oice being received in Aecounts Payable, ��I�ict�e��er is IateE•. �3. If p�yment is not timely made, (per �aragra�h A); interest sl�all accrue on ihe unpaid balance at the lesser of fhe rate specificd in Texas Government Code Secfion 2251.025 or tl�e maximum lawiul r�ie; except, if gayn�enf is pot timely made for a reason foa• whicl� the City may witl�l�old paynaent hereunder, intei•est shall not accrue untii ten (10} calendar days �fter the grounds fo�• withhoIdi��g paynaent hava been resol�ed. C. if pai#ial ship�iie��ts or deli��eries are autl�ori�ed by tl�e City, Ehe Contj•actor ��i11 be paid fo►• ti3e ��artial shipme�it o�• deli��cry, as stated aUove, provided that El�e im�oice matches the shipme�tt or deliverJ�. D. Tl�e Cit3� ma3� u=iihhold or set Qff the entire �ay�i�ent or paE•t of any �}ayment oihens�ise d��e the Co��tractor to sueh ettent as may be necessar�� o�i accoi3nt of: i, deli��ery= af defecti��e ar non-conforming dalil�erat�les by t�ie Cont�•actor, ii, third pa��ty elaims, zi°hieh are not eoti�erecf �y tl�e insuraiice ��hieh ihe Contraetar is �•ec�uirec� to pro��ide, are filed o�• reasonablc et�idei�ce indicating �robaUie fili��g of such elaims; iii. failure of tlie ConEractaE• to �a}� 5ubcontE•aetors, or for Ial�o�•, rnaterials oE• eq�ip�i�ent; iv. damage to tlie pE•apert3= ofthe City or the Cit}�'s agents, e�7zployees or eont�•aciors, �t�hich is not co�re►•ed by insr�3•ance �•ec�tEired to be provided 6}� the C:o��tractor; v. reasanable evidence that the Cont��actor's obligations n�ill not be com�leted «<itl�iit the time s�ecified in the Contract, a«d that the un�aid balanee �rould nai be adequa[e lo coveE• actual oE• liquidaieci dan�ages fo�• tl�e antici�ated delay; vi. failttt�e of tlie Contractor ta st[b�nit ��roper i��oices �i°itli pu�•chase orc�er number, «=ith a!1 required attachn�e��ts ancl si��arting docuii�c�rtaiion; or vii. faifu��e af tl�e ContE•actor ia coEn�l}� «�itli any material pro��ision of tl�e Contract Docwue��ts, L. Notice is hereby gi<<c�z that an}= aE��ardeci iu•�3� ��ho is in arrears to tlie Cic�� of Dencon for de[inc�uent tayes, the City fnay offset indebtedness owed the City through p�yme�tt ��ithltolding. F. Payme��t �i�ill be n��de by cl�eck unless the parEies n2uiva[(y ag��ee ta payment by credit eaE•d or elccti�onic transfci� of funds. Tl�e Cantr�ctor agrees that the�•e shall 6e �io additio��al eharges, surchargcs, oE• pe�ialties to t13c Cit�� foE• payinents Enade b}� credit card or electroc�ic fands transf'e�•. G. The ��i�arding or co��tint�ation of tl�is contract is depe�ide�it apo�i tlie availability of fiinding. Ti�e City's pay�ne�it obligations are pa}�ab[e on[y� and solely fro�n fi3nds Approp�•iated �nd a��ailable for this contraet. '1']�e a6sence of Ap}��'opriated or other l��vfully a��ailable funds shalf �•ender the Contract �iull �nd void to the estent fu�3ds are nat ApprapE•iatcd or a��ailable and any deli��erab[es deli��e�•ed be�t ttn�aid shall be retuE•ned to the ContraetoE•. The City sl�all providc tf�e Cont�•actor �ti=riite�� notice of the failure of tl�e Cit�� to i�3ake an adeqi�ate A��ro}�riatio�� for �ny fisclt year to pay fhe an�ou��ts dE�� under Uie CoE�tract, o�• E��e E•edi�clio�� of any Ap�rapriation to an �motmt insafficient to pe�•mit tlie City to p��y its o6li�ations undeE• the Confract. In ihe e��e��t of r�o��e or inacieyuale appropriatio�� af �unds, tliere «�il! be no pe��alty no�• reEnoval fees cl�arged to tlie City. 1�. TRA!'EL ��P�NSES: All travel, lodgh�g a«d per die��i e�per3ses in co��ectio�z �s�itl� the Co��tract sE�all be paic� b}� il�e Cont�•actor, u��less othe�•ti��ise stated in tl�e tontract ter��s. 15. �'INAL PAYMEN'I' A1Vb CI.OS�-OUT: RFP 5030 Page 5 af 20 A. If a ll�3L/1�113L'/1�'I3E Yrogi•am Ptan is agreed to and the Contracto�• has ide��ti�ieci Stibcontractors, thc Contraetor is rec�uired to subEnit � Co��trac# Close-Out A�BEfI�'BE Ca�npliance Report to thc Purchasing Manager no later tl�an the 15t1� calend��• d�}� after completion of all w-or�: under tl�e co3itract. i�inal pay�nent, �•etainagc, or 6otli ma5� be il�ithheld ifThe Contractor is not in compliaaice �i�ith tlie requiren�ents as accepted by kE�c City. I3. `1'he ma[�ing and accepta�ice of finai payment n�ill constitatc: i. a«�aiver of alf claims by the Cit�� ag�inst tlie Co�2h•acior, excepi clain�s (1} wk3ich ]ta��e been �reviously asserted iit �i�riting aE�d not }�et seEtled, (2) arising fi•om defecti��e �vork appeaE'ing after $nal ins�eetion, (3) arising fE•oEn fail�re of #he Cant�•actar to con�p[y ti�ith the Contract a�• tlic ter�3�s of any �i-ar��nty speciftcd k7erein, {�1) a�•ising fro�n tl�e Conh•acto�'s eaE�ti��uing obligations under tE�e Co��traci, ineluding but not limited to ii�demnit�� nd �varrant5� obligations, or (5) a�•ising under the City's riglit to tiudit; and ii. a ti�aiver oi' all clat�ns Uy the Co��tracto�• against the CitS� other than those p�•eviausl3� asserted in �s�riti��g and c�ot yet scttled. iG. SPECIAL TOOLS & TEST EQUIPME�fT: If t[�e price st�ted aii the Offer includes tl�e east of an5� special tooli�ig ar specia[ test equipEneni fabrieated or �•equired b}� tlie Contr�ctor for the purpose of fiI]iE�g tl�is oE•der, sueh special tooling eqt�ipment a�id any process sheets reElted tE�e�•eto shatl beco��ie the p�•operty of the City� ai�d sE3ali be identified b}� the Contractor as such. ] 7. RIGHT TO AUDIT: A. The City sh�ll have !he right to sudit a��d m�ke copies of the 600ks, reeords and coEn��utatioE�s pertaii�ing to the ConEract. The Coniractor shall retain such books, reeords, documents and other e��ide��ce pe�•taining to tE�e Caniraci period and five years ihereafie�•, cxcept if an audit is in progress o�• audit findings are yet t��resol��ed, in s��E�ich case recoE•ds shalf be kept until alE audit tasks are completed and resoh�ed. These Uoo�:s, reeords, documents and other evidenee shail be a��ailable, u�ithin teji (10) E�usiness c�aJ�s of �a�•itien rec�aest. Fu�•tl�er, t�ie Contractor s6�11 also requi�•e all Subconi�•aetors, maleriaE stippliers, aE�d ather payees to retain all Uc�oks, reeords, doc�n�ents and other e��idence pertaining to the Contract, and to atlo�i� the City si�nilar access Eo those docwi�ents. All boaks and recards �t�ill be cnadc available «�ithin a 50 mile radi[�s of the Cit}= of Den€on. The eost af'the a�idit «�ill be borne by tlie City u�3less the audit reveals a�� ovcrpayinent oi I% o�• greatc�•. if an over�a��i3ient of I% or g�•eate�• occ��rs, the reaso��able cost of thc audii, i��cluding any t�•ai�el costs, ntust be borne hy the Contractor E�'}tiCll ]t3i]St �E ��yat�le �R�iihin fire {5} l�usi��ess days of receipt of an invoice. B. Failuc•e tp ca�ilply n�ith the provisioc�s af t�3is seetion shall be a material breach of tlie Contract and shall constitnte, in ti�e City's sofe disci•etion, grai�nds for terE��inatioE� tl�ereo£ I:acE� of the te��ns "boofis", "�•ecords", "dacuEnenis" a��d "oEher evide�ice", as ased abc��e, sl�ali be const�•ued ta iE�clude drafts and electraE�ic fites, e��en if such drafts or e[ectronic files a�•e subsec�uentiy Used to generate or prcpare a fii�al prinled docunzent. 18. S�JBCONTRACTORS: A, If the Co��ic•actor identified S��bcc��tractaES i�i a DBE/��iBE/1��8� agreecf io P1a�i, the Contractor sE�all cai��plJ= �i�iih all eequirert�ents approved by t}3e City. Ttie Conts•aetor sEjalE not initially e�7ploy any SE�bcontractar e�cept as �rovidec3 in tl3e CoE�tracta�'s Plan. Tlie ContracEo�• s3�a11 nQ! substitate any Subcontr�ctor ide�tEified in tlie Plan, �i�tless the substit4�te has been acce�ted by tl�e City in n�a•iting. Na acceptance b3� the City af any St�bcantracta�• shall constitute a �vai��er of a►�y �•ights or ren�edies of the Cit�� t°iih res�ecE to de1'ective deli��er�bles providecE Uy a Subeo3ih•aeEor. if a Plan has i�ee�� approved, the Conh•acto�• is additionally rec�ui�•ed to submit a montl�[y Su�eontract A«<ards and EipendEtures Aeport #o tl�e Proc��reme�3t Manager, �io latc�• tlia�� ck�e te��tk� calendar day of caclt month. i3. \1'or�: perforined fa�• the Co�it�•aetor by � S��hcontractor sltall be p��rsuant to a��ritten coi3tract 6et«=eeE� the Co�3iracto�• and S�ibeo��tractor. Tlie tern�s ofthe subconiraet �7�ay not co►�tlict �R°ith !he tercns of'the Contr�ct, and sh�tll cont�in pro��isions #E�at: i. req�Eire that all deli��er�bles to be pro��ided by the Su6contractor 6e provided in strict accordai�ce «�it1i the provisia��s, speeifc�lio��s �i�d ter��s of the ContE•act; ii. prohibii the SubcanEractor fi•om fii�•ther s�ibcont�•aeting ai�y pc�rtic�� of' the Co��Ej•act �vitl�out the p�•ior �vriEte�3 eonsenf of ihe Cif�� and the Contractor. The City n�ay requi►•e, 1s a coi�diiion to such 1'urlher subcai�h•acling, tl�at €he Subcontractor �ost a payment bond in forn�, su[�stance �nd ��nouni �cce�ta�le to the City; iii. rec�uire Sahco��tractars to ssat�mit all invoices and ��plic�tio��s for paynte�its, including an�� claims i'or ac�c�itional pap�ner�fs, dan�ages ar otk�ee�ti�ise, to the ContractoE• i�� s��ft�icient liine to ena�le Ehe Co��tractor to incEucte saine u�itE� its invoice or application for �,ay«3ent to the Cit�� i�i accordaiice «�ith tl�e terins oftf�e Co�it�•act; iv. rec�uiE•e that all SubcontractpE•s obcaitz a��d ��3aintai3i, th�•oug3iout the teE•ir� of tl�ei�• co�u�•act, ii�sw•a�ice in the type a�id amotmts s{�eciiied lo�• the Contractor, ��ith tl�e City bei��g a na�ned i��su��ecf as its i�jterest sl�all appear; and ��, c•eq��ire that tl�e Subcoc3tE•ac[or inden�nify� and hold tlie City I�ann�ess to tk�e sa�ne c�te��t as the Coi�t�•actoE• RFP 5034 Page 6 of 20 is reqaired to indem3iify thc Cify. C. Tlte Cont�•acta�•-shal[ be fully E•esponsible to tf�e Cit�� fo�• all acts and o�yiissic�ns of the Subcontractors just as the Cantractor is responsible for die Co��tractor's o«��t acts ajid on�issions. Notl�ing in tl�e Cantract sl�ail create for tE�e benefit of a�y such Su6coE�t�•actar ai�y co��t�'actua[ relationship bet��ee�� tlie City aF�d au}� such Subcot�tractoE•, E�or sha[I it create an}� abligation on tl�e part of ihe Cit�� to pa}� or tc� see to the pay�nent of any motzcys dEie any such Subcantractof• e�cept as �na�� other�aise be requi►•ed by la�s�. 1�. Tlte Co�ztractor shali pay each S�bcantractoe its appropriate s�are af payme��ts made to the Cantractor not later than ten ( I O} calendar days aftee receipt of payment fro��i the City. ] 9. �VAR1iANTY-I'RIC�: A. The C:OntractOr �i�a�•�•anls tl�e �riees qiioied i�3 the Ofier are no I�ighe�• than tlie Contr�cto�'s curreE�t prices o�i orders by others for lii:e deliverables under siE�iilar ter�ns of pu�•chase. B. Tl�e Can#racta�• certifies that the priees in tl�e OffcE• l�ave 6cen arri��ed aE inde��endently r��ithout consultation, cainmunication, oE• agree��eni for the E�urpose of resteicting coi�petifio�t, as to a�iy n�atte�• re[ating io sueE� fees «�itl� any other fir��3 or �t=iti3 a�iy coi��etito�•. G In additio�� to an}' other remedy a<<ailabEe, tlie City n�a�� deducE fi•on� any amounts a�ti�ed to tl�e Cont3-acto�•, or otliertt�ise recover, atay antou��ts �aid far ite�ns i�t escess of tize Contractor`s cr�rrent prices on c�rders by oihers fa�• like cEeliveE•at�les ander simitar ter�ns of pUrchase. 20. VYARRANTY —'!'I'['L�: The Contt•aciat• ��ar��ants that it has goad and indefeasible ti[le to ali c�eliveE•ables fu��nished under tl�e Contract, and t��at the deli��e►•ables are fi•ee a��d clea�• of al[ liens, clai�i�s, secui•it�� interests a«d eneumbranees. Tl�e Canh�actar sl�all indemnify a�td liolci the Cii}� I�ar�nless fro�n ac�d against al[ adverse iitle clai�z�s to the cEelive��al�les. 21. �VARRA�iTY — DELIVERABLES: Tlie Cor�tractor ��ar�•aitis a�td represeE�ts that al1 deliveraUles sold the City unde�• the Cc�nt�•aet shall be fi•ee fi•o�n cie%cts in design, �s�orkni�tnsltip or manufacture, and coi�forii� i�� al[ inate�•iaE res�ects to the specificatio�is, dra�i�i��gs, aiid desc��iptio��s ir� the Solicitatia�i, to a�z}� samples fuE�nished b�� t�e Conta•actoe, to thc te�•��s, covenants and conditions af'tlie Cnntr�ct, and to all applicabfe Statc, I�'ederal or loeai la�vs, 3•ules, and regulatiot�s, atici i�tdtistt�y eodes aE�d standards. Unless c�tlter«�ise stated i�� tt�e Solieitation, the dcfivera�les shalE he nen� or recycted inerchandise, and not used or reconditioned. A. Rec}reled delij�erables sh�ll be eEeacly identified as sc�ci�. B. The Co�itrlcto�• maJ� not li�nit, e�ctude or disclai�n ihe foregoing �i�arranty or a�i�� ti�ar��ai�ty implied by la��; a�id �ny atteingt to cfo so shall be �s=itliout foree or effect. C. Unless otheE•�i�ise specified in tl�e Con€ract, the c��aE•rant}� pe��iod siiatl be at least oite �=ear fron� tl�e date of �cce��tance of ihe deli��erables or from the date of aceepta��ce of a�iy replacement deliverables. If dt«�ing the «�arranty pe�•iod, one oE• n�oE•e of tE�e abo��e �i°arrattties are bre�el�ed, tl�e Contractor sha[I peomptly ��pan receipt of den�and either �•epair the non-confo�•�niE3g deli��er�bles, o�• �•eplace the non-coE�forining delit�e��ables �a�itl� iull�� confortning delivc��ables, a[ i1�e Cit}�'s option �iid at no �dditional cost to t(ie City. Afl costs incidenta] to sc�cl� repair ar �•eplacentent, inclt�cfing but not ]in�ited to, a��y pac[:aging and shipping easts sE�ali be borne e�c[usively by� it�e ContE•actor. `ii�e City sh�ll e�ideavor lo give the Cantracto�• ��=ritten notice of tlte bj•eacl� ol'��arrantp ��'IiEilti l�li3'ly (30) calendar days of diseovery of the breacl� of ��aE•rant��, but failure to give tiit3el�� noticc shal� no! im�air tE�e City's rights uc�de�' ti�is section. D, If the Conte•actor is [a�iable or un�t�illing to E•e}�air or re�laca defective oi• non-conforining deli��erables as reqaired by tE�e City, t��en ic� additio�� to any olher availaUle remedy, the City ma}� reduce the quant�ty of c�eJiverablcs it �na�� be �•ec�t�ired to purcl�ase under tl�e Co��tract frofn the Cont��actoc•, and pin•chase co��foE•ming deliverab[es fi•o�n othe�• sources. In st�clf evei3t, the Contractor sha11 pay to the City u�on dei��and tlie iE�c�•e�sed cost, if 1n��, i��curred b�� tlie City to procure such deli��erabtes fi•ain another source. L. Iilk�e Co�7trlctar is �iot ihe manufacturer, and the deliver�bles are co��eE•ed by a se�arate �n��aEaciE�E•eE•'s �varrant��, tiie Co��tracior shall transfer af�d assigi� sueh man��facturer's �ira��ranty to tiie City. 11' for aE3�� •easo�t tlie ina�iufaeEure�•'s �va��rai�ty camaot he fiikl�= tE�ansferred to tlie Cit}�, ihe Cont��aeto�• shall assisl and cooperate ��itl� tlie City to thc fullest e�tent to e��l'o��ce such �na��t�facEure�'s «�arrat�ty for the benefit of the City. 22. R'ARRANTI' — S�RVICES: "1'i�c Cont�•ac�o�• �l�arrants and represe��ts ti�at all ser��ices to be pra�=ided the City under t{ie Conta•act �vill be iully �nd timely �e�•fo�'iT�ed in a good and �eork�nanlike ina�iner in accprdance �vi#E� genera]Ey lccepted indi�st�•y sta��dards aiid practices, il�e te�•ms, co��ditio��s, a��d ca��eE�ants c�f the Go��t��aet, and all ap�lac�ble Pederal, 3tate and local la�i�s, �•uEes or regulations. A. The Co��tr�ctor �na5� �2ot liinit, c.r-clude oE• disciai�n t}tc iorcgoir�g ��arra��iy or an�' �t'i31'F'i�[](}� in�pEied 6�= la«�, a�id RFP 503Q Pa�e 7 of 20 any a�#empt to do so shall be �i�itliout fa3�ce or etiect. B. LIE�less oiher»�ise specified i�� the Conh•act, tlie �va�•rant�� period shalf be at ]east one year frocn thc Acce�t�nce I3ate. If during the �a�arranty periad, one or i��oi�e oi the abor�e �t�a��anties aE•e breac�ieci, the Co�iiractor sliall proniptl5� upon receipt of demand perfoE�m the services again i�a accordance ��ith abo��e standard at no adc�itiona[ cost to tk�e City. Ali costs incide�ital to such additianal perfo��inance shall be borne b�� the Contj�actor. The CiE�� sl�al] e�idea��or to gi��e tlie Conta•actor �vritten notice of ti�e breacE� of ��arrai�Ey n�ithin ihir€�� (3�) calenda�• da��s of discove��y o�' iE�e breach �i�arra��#y, but failure to give ti�neiy notice sl�al] not ie3ipair tl�e City's 3•igl�ls uncfer this section. C. If the CantractaE• is unable oe ►�n��iEling to pe�•forEn iEs ser��ices in accorda�ice ��ith the above sta�ida��d as rec�ui�•ed b�° ihe City, t�e�t in adcEition to any othe�• a��ailable ren3ed5�, the Cit3� n�ay reduce the acnount of services it nt�y be �•equired to purchase ui�der tEie Coc�t��act fi�o�n ihe Gontracto3•, and pu��ehase canforniing services li•oit� other sourees. I�� se�ch e��ent, the CoE�tE•actor shaEl pa�� #o the Cit�� upo�� deniand Ehe increlsed cost, iiany, incu►•��ecE t�}� the City to procure such services fi•o�n a�tnthei� sot�►•ce. 23. ACC�PTANC� OF INCOMPL�TE OR NON-CONFORMING DELNERABLES: If, inste�d af �•ec�«iring imi��ediate cor��ectio�� or ��e�i�o��al and replaeement of defecti��e or no��-conforming deli��era6les, t�e Ciq� �refers io accept it, the City ma5� do so. The Co�itractar shakl �ay all clairns, costs, losses anc{ dai��ages atiriE�utable to tl�e CitS�'s eva[uation of and detern�in�tion to accept such defcctive or na��-canformii�g deli��erables. If any such aecepEance oecu�s pr�or to �nal �ayment, ihe Ci€y n�ap deduct sucf� a�nounts as ��•e necessary to coEnpensate the City for it�e diEninished r�alue of the defeeti��e or �ion-confo�•i�Ting dclirerables. If tE�c acceptance accurs aftcr finat p�yment, such ait�oa�iE n�ill l�e E•efunded to thc City b3� the Cnntractor. 2�. RIGHT 'I'O ASSURA.NC�: �1'l�ene<<er one parly #o tE�e Ca��#ract in good faith E�as �•easoE� to question t�ie otlier party's intent to perform, demand n�ay be �nade to tl�e other party %r ��ritten assi�E•a��ce of the intent to perfor�n. In the e�re�it [hat no assuE�ance is gi��en �s�it[�in the ti�t�e specifed after dem�nd is made, the de�nanding partJ� nia�� treat tliis failure as an �ntieipator}� repudiatio�� of ihe Co��Eraet. 25. STOP �'VORK 1�fOTIC�: The City may issE�e �n iminedi�ie Sto�� Vor3; Natice in the e��ent Ehe Coniractar is obsc�-��ed perfor�ning in a manne�• that is in <<iol�tio�i of Federal, State, or loc�l guideli�ies, or in a��ianner tha[ is deterntined �y the Cit�= to �e uns�fe to eitlier life or �ropert}�. U�on �iotification, tlie Con#ractor �i�ili cease all ��ork u��Eil notified 65� the Cit}� that the ��iol�tion o�• ui�safe co��ditio�t l�as been coj�rected. The Con€racior shalE ve liable for alf casts incu�•red b}- the City as a rest[lt of ihe issuance of suci� �tap �1'ork l�o[ice. 26. D�F'AULT: `Fhe Caiztracto�• shall be in default ��nder the ContE•act if the Contracla3• (a) f�ils to futl}r, timely a��d faithfUlly perform any of [ts inaterial obligaiions under the Canh•act, (!�) fails to pro��ide adeq�iate assu�•a��ce of performance ander Parag�•��h 2�, (c) becomes inso[��ent or seeks relief u��dc�• ti�e banf;raplc�� la�ti�s of tl�e United States or (d} nia�es a m�terial mis�•e�resenfation in Cont�•actor's OffeE•, o�• in any rcport o�• deliveraUle req�iieed to be saUEnitted by f}�e ContE•acfo►• to the City. 27. TER11iINATI01� FOR CAUSE: In tl�e e��e�it of a default Uy tf�e Cont�•acta�•, the City shall ltai�c the right to te�•minaie !he Cont�•act E'or cause, by �t=ritten �iotice effecEive te�t (10} cale��da�• days, u�less aEherwise specified, aRe3� the d�ie of'suel� 13otice, unless d�e Contractor, «�ithin sueh ten {10) day ��eriod, ct�res such defa�►It, or p=�ovides evidel�ce sufficient to p�•ove to the Cit�°'s ��easo��aUle satisf'actian tl�ai st�ch deiauli does not, it� !'act, exist. In addition to any other re�itedy available uuder la«� or in ec��iity, the Cit�= sha[1 be enE'tt[ed io recor�er all actual cE7niages, costs, losses and e�penses, incurred b�� the Cit}= as a result of the Contracto�'s default, includi��g, n�itt�aUt lintitatio��, cast of cat�ef•, eeasonaE��e �ttorneys' fees, co►�rt casts, and p►�ejudgn�e��t ancE post-jadg�necjt iE�teres€ at ihe c��axiEnun� lan�fiil rate. Additiona[I3�, in the e��ent of a defaalt by the Car3tractor, the City uia}� rc�itave the Co��tractor from ihc Cit��'s ��endoE• lis5 fo3• th�•ee (3) 5=ears aiid af��= Of%r subEnitted by ttze Contractor i��ay be disq�ali�ied f'oE• up ta tl�rec (3) ��ears. Ali rights and ��e�3iedies under tlie Cnnt��aet are cumulati��e and are ��ot esclusi��e of Rn�� otl�e►• rigltt or rei��ed�� provided by laF��. 28. T�12A`�INA'['ION �'VI"1'HOiJ'1' CAUS�: 'I'l�e City- sl�all ]tave ihe right to ter�ninate tlie Contr�et, iE� u�liole o�• ii� pari, �i�ithout cat�se any timc upo�� thirty (30) ca�ei�dar da��s' �rior ��ritten aio#ice. LT�o�� •ecei��t of a notice of tern�in�tion, tl�e CantE�aetor siiall p�•o�n�tly cease all fu�•ther ��ork �t�rsuant tn ilie Coi�tract, ��ith s��cl� e�ceptions, if any, speeified ii� tE�e notice af tern�in�tic��. Tlie City sl�ali pay the Contraeto�•, to the exient of ti�nc�s A�prop��iated or otlier�3�ise leg�ily a��ailable lar such �uF•poses, far a!1 goods delivered and sec•<<ices �crfor��icd �nd oE�ligatians incUrred prior ta tlie da6e of teriniiz�Eion in �ccordance ��ith ti�e terE��s l�ereot: RFP 5030 Page 8 of 24 29. FRAU�: Fraudii[ent state3nents by l}tC C011ll'�CfOE' 011 c�lly Oiier o�• ic3 any �•e�ori ar cteliveral�Ie required ro bc submitted by tE�e Coi�h•actar to the City shall t�e grou�ids for tlie tcrmir2ation af tE�e Co�rt�•act for cause by tl�e City and E3ia3� result iE3 legal actio�i. �� 3�. �ELAYS: A. The City n�ay delay scl�eduled delive��y or oil�e►• due dales by �vritten notice to ihe Co��lractor if ihe City deems ii is in iis l�est interest. Ii stich delay causes aii ic3creasc i�i tl�e cost of tlte «�ork i3�ider the CantraeT, the Cit}� aiid the ContractoE• sl�a]! negotiate an equital�le acljustment for costs incE�rred by the Contractar in tlic Co►�tE�act priee �nd etecufe an a�3�endmc�it to t�ie Co�rt�•act. `I']ie Cot�tractor ��te�st assert its right ta an �dj�isunef3# «=itE�in thirty (3f?) calendar days fi•on� ihe date of'receipi of the notice of'delay. railure to agree o�� any ad.{usted �rice s}�alf be handled under the Disp�ite 32esaltE4ioE� process specified in {�aragraph 49. Ho�s�cver, notl�i�tg i�i tE�is pE•ovision sl�al] e,r•c�se the Co►�tracior fi•o»i deEaying t�ie dcliver�� s notified. B. Neit�ier p�rty shall t�e liat�le for any dcfault or dcla3r in the perfor�nance of its �E�ligatio3�s under tl�is Co�3tract if, �r�hile and to the e�tent sac3i default or dela�� is clused b}� acFs of God, fire, riots, ci<<il con�nzotion, I�bor disr��ptions, sabotage, so��eeeigit eonduet, or �n3� other cause be�-ond the reasonable coE�trot of suei� P�rty. Ii� the e��ent oi default or dela}� in coni��aet perform�nce due to a�i�� of tl�e %regoing eauses, tlien the tiine for co►npletion of tl�e seE•<<iees �rili be eiiended; prati�ided, 1io�t�ever, in such aai e��ent, a co��feE•ence n�ill be held �i°iEhin three (3) 6usi�tess d�}�s to cstablish a mutual[}� agreeabfe period of titnc reasonab{y- necessars- to o��ercon�e the effect of such failure to pe3•form. 31. 1NDEMNITY: A. Defnitio��s: i. "I�tdemnified C[aims° sl�all inc[ude any and all cl�ims, den�aE�ds, s�iits, causes of action, judg�nenEs �nd liability of ei�erp char�cter, t��pe or descri}�tion, i��cluding �11 �•easonable costs and es�enses of liiigation, mediation or other alteri��te dispute resolution mechaEiism, including atloE•ney �E�€i otlier professionaE fees for: (1) damage Yo or loss of the prapeety of �n�� erson {includi��g, bE�t not tin�ited to the City, Ehe Contractor, il�eiE• res�ecti��e agents, oflicers, ei3�pEoyees and subconEraetoE•s; Ehe olfice�•s, age��is, and employees of sucl� subcc�nir�cto�•s; a�id thirc� �arties); aE�d/ar (2) death, bodily injw•y, illness, disease, worker's com�e�is�tion, loss of services, or loss of iE�come or �s�ages to a��y person (inclE�ding btit �iot IiEnited to the agents, ofticers �nd en�plo}�ees of the Cily, ihe CaniE•acior, tl�e Co�3tractor's subcontractors, a��c� ihi►•d �arties}, ii. "FaiElt" sl�al] i��c[i�de the sale of defecti�re oE• non-conf'orEning deliverables, negligence, wiliful enisconduct or a Ureae{� of ai�}r fegally imposed strict Eiability standard. B. TH� COIVTRACTOR SHALL D�F�ND (AT TH� �PTION OF TdIE CITI'�� II�DEh17�IiFY� Al`'D IIULD TI�E C1T]'f ITS SUCCESSOIiS7 AS$IGl\S� OFF'10ERS, B,'4ii'LQYEES A1�D ELECTED OFFICIALS I3AR11LESS FRpAI AIVD AGAll\ST ALL INDEllI1�IFIED CLA17115 DIRF.CTLY ARISII�G OUT OF, IHCIDENT TO, CO\CE[tl\ING OR RESULTIl�G FI2011i TI�FAiJLT bF 1'AE CONTItACTOIt, OR TAE CONTRACTOR�S AGE1\T5, ERII'LOYEES OR Si3BCO1�TRACfORS, IN THE PERFOItMA1�CE OF TIiE CO\TRACPOR'S pBLIGATIp\S UNDER THE COA'TRACT. NQTHING HEREIN SHALL BE DEED�ll Tp LIl1IIT THE RIGH'TS OF'IHE CITl OR THE CaNTRACTOR (ll�iCLUDING� BU3' N4T LItliITED TO3 TfIE RIGIiT TO SEEK Cd\TRIB[ITION� AGAI�ST AnY T'HIitD PARTI V4'Hp R1AX BELIABLE FOR Al� 71YDE�SN[&'lED CLAIb� 32. IN5i3RANCE: Tl�e fol�o�svng insE�rance �•equireEnents are applieable, in additifln to Ihe specific insurance requirements detailecf i�t Atiachn�ent A. 7'lic sucecssfral finn shafl proct�re a��d inai��tai�� i��surance of ti�e types and i�, tlie mini�i��m amounis aceeptable to the City of I?enton. "1'he insura�ice shall be «�itteit by a company licensed to do business i�i ti�c 5tate of Tetas a�id satisfacioi}r to the Cit}� of Dento��. A, Gene3•at Rec�t�i�•en�ents. i. "i'he Contractor siiaEl at a mi�iin�uin car►�y insw•a�ice in the types and a�nou��ts indicated a��d agreed to, as st�bmitted ta the City and a�pE•oved b�= the City «�itl�in the ��rocurement ptrocess, 1'c�r li�e d►�ratian o{' the Co�tr�ct, inc[adiE�g e�tension aptio��s and hold over pe►•iods, and du��ing any ��a��ra�ity period. ii. The Co��tractar shal[ En•ovide Certificates of Insurance «�iili i1�e coverage's ai�d erodo�seine��Es rec�ui��ed to the Cify as veriiicatioj� of co��e�•age prior to co�it�•aet eiccution �nd �t=ithin fourtee� {l�} ealendar da5�s after «�E�i[ten req�iest fi�om flie Cii��. f aili�re to providc tlie E•equired Certificate of lnsu��nce �tTay s�ibject tl�e Offe►• io c�isc�uali�c�tio�� IE'Clfl3 eansidei•atian for an�ard. 7'he Contractor �nust also for�va�•d a Certifieatc of Insurance to tt�e City �i°he��ever a�rc<<iausly idci2ti�ed policy period lias etpi►•ed, or an cttc�isio�7 option or hold o<<e�• pej•iad is exercised, as verific�tio�� of continuiE�g coverage. iii. The Coi�tractar shafl not ca�n�»ence �vork tEE�til tlte required insurl��ce is obtained ��d Emtil s��cE� i��stErince has bee�i ee��ie�ved b}� tlie City. Ap�ro��at of insaraitce by t}�e Cit�� sE3�lt �ioi a•elieve or decE•ease tlie liability c�f tt�e Ca��Er�etor }�eree�nder and sl�all not be canst�•ued to be a[iEnitalion o1' 1iaE�i�ity on !he part af the Co��t��actor. iv, The Co��trac#or mtESF subn�it certifc�tes o#' insia•ance to the Cit�� f'or �11 subco��tr�elo�•s �zrio�• to the RFP 5030 Page 9 of 20 su�eoc�tractors co►3�Eneneing �vork o�i the projecE. ��. `The Contractor's a�id �11 subcoi�tracto�-s' i��sur�nce co��eeage sE�all be �i�rittei� b�� con3panies liee��sed to do busincss in the State af'1'esas at the ti��e tlie policies aE-e issued ai�d shall be writte�� 65� coEnpanies �a�ith A.i�1. BesE ��tings of A- ViI or better. `fhc City `a=ill aecept zvorf:e�•s' coinpensatio�� coverage �t=rittei� h5� tE�e Te�as 1�'orkers' Co�npe��sation li�s€�rance P�ind. vi. All endoesements na�7�i��g the City as additio�ial iEasured, �i�ai��ers, and notices of ca�icellatioi� c��dorse�i�eiits as �i�el1 as the Ccrtificate of Insu►'ance sl�al] coitt�in tlie solicitation ��umber �nd tE�e follou�iE�g inforn3�tion: City of Dcnto�� N(ate��ials Managemc��t lleparime�it 90I B Tetas Street De3iton, `I'eras 76209 vii. Ti�e "other" insur�nce clause sl�all nat ��p1J� to t�ie City �R�here the Ci[y is a►� additional inse��•ed sho�vn on an}� poEicy. lt is iE�te�ded t�iat policies required in Yi�e Coi�tE•act, co��eriug I�oth the Cit}� �nd the Conta•actor, shall be co��sidered pri�i��ry ca��er�ge �s a�plicable. <<iii. If insurance policies �re not «rritten for �Enounts �greed to ��°iEt� ihe City, tlie Cor�iractor shall eaE•ry Umk�i-ella or E�eess Liability I��sura��ce for an�� differences in ainounEs s��eciiied. If Ezcess Liabiliip Insw�anee is provided, it sltaEl follo�t� tE�e form oi'tt�e primary eo��erage. ix. "fhe Cit�� sh111 be entiiled, u�on rec�i�est, at an agreed upon iocatian, and ��i[hout e��ense, to E•e��ie�� certified copies of policies �nd e��da3•se��e�tts the�•eto and ma}� make any reaso��abie E•equests for deletion oe re��ision or n�odification of plrticul��• potic}� tern�s, conditions, limitalions, or exclusions e�ce�t �;�he�•e �olicy pro��isions are establisE�ed �y 1�� o�• regtilatians binding iipon eitlier oi' the parties E�eE•eto or the under�triter on an�� sach poEicies. x. The City resen�es the 3�ighE to re��ie�� tlie insura��ee requirements set farth dw•i��g tE3e effcetive period af tlie Cont�•act and ta �7iaf:e reasanable acijustme�its to insu�•ancc eo��er�ge, limits, and e�clusio��s ��hen deemed neeessary and �rudei�E E�� the Cit}� vased u�on clianges in statutor}> la«-, court decisions, tlie claims l�isiory of the industE•}� fl3' fi��ncial eondition of tf�e insura�ice com�a��y as �iTeEl as tlie Cout�•�cto�•. �i. "1']ic Conlraetor shall not causc any insurance ta be canceled nor permit any inseiraE�ce io lapse diEring the te��in of tf�e Contracf or as required iii tlie Co�itract. tii. The Contractor sltall be E�esponsible far premii�ms, ded�ctibles and self-insau�ed �•eteniioE3s, if aE��, stated in policies. All cEeductibles or self-insured retentions shafl be disclase� on tEie Certificate af Insw•a�tce. �iii. The Co��tractor sk�a]! endeavor to provide tk�e CiES� tliirty (30) calenda�' da5�s' �i�ritten notice of e�'osioE3 of the aggregate limiFs belo«� oecurf•enee limits fo►• all applicable coverage's indicated �i�ithin the Coi�U�act. sit�. 'I'he insu��auce cot�erage's specffied in ��itE�in the solicitaEion and rec�tEiremenis are rec�uired �ni►3in�u�ns and a��e nat intended #o limii !he E•esponsibilfiy or liability af the Cantractor. B. 5pecific Co��erage Rec�t►iren�ents: Specific ir�stErance rec�ui�•eme�its are contai�ied in tlie solicitation instriu��ent. 33. CLATMS: If any clain�, demaE�d, st�it, or ott�er action is asserted agai��st the Co�ttraeta�• ��i�ic3� arises under ar co��eerns ihe ConU�ae4, ar ��hich co��ld E�a��e � e�iatei�ia] adve►•se af�eei on ik�e Contracto�'s ability to perform there�incEer, the Co��i3•aeto�• s;�al] gi��e �t�ritte�t notice tliercof to the City E�-ithin ten (10) calendar da}�s after �•eceipt of notice t�y the Co►�€ractor. 5uch notice io tlie City sE�a[i state thc datc of notifieation of any sucE� ciaiin, de�na�id, siiit, or oEher action; ihe ►3ames a�id adciresses of the clai�ita��i(s); dte basis thereof; and tlic namc of eaclt person a�ainst t��}3om suclt claim is �cit�g asserted. Stich notice sh�ll 6c de[i��ered perso��ally o3• b}� mai] a�id s�a[f be sent to the City� and to t11c L?et�ton City Atiorne5�. 1'crsonal delivery to tl�e Cit}� Attorne5� sh�l[ be to Cit}r Hail, 215 East IvieKi��ey Street, Denton,'I'exas 762fl1. 3�1. 1�OTICES: Untess other��ise specif�ed, ali notices, �•eq��ests, or ather co�nai�unications �•equired or ap�ropri�fe to be gi��e�� uiidei• the Co��tract sE�al] be i�� n�riting aiid shail be deen�ed �3elivered tivee (3j busii�ess da}�s after �ost�narked if sen! by U.S. Postal Service Ce�•tified or Registered A�tail, Retarn Reeeipt Requested. lVoEices c�eliveE•ed by oiE�ej- means sh�[1 Ue dee�ned delivered Eipc�n receip! by ihe addressee. Routine coEnmu��icatio��s i��ay be �nacEe by fiE•st elass ��tail, telefar, or other co�n�7ieE•cially accepted i�ieai�s. l�oticcs to the Cai�tractaE• shall be sec�t to tl�e addj•ess specifier� in !he CaE�tE•actor's Offe�•, or ai sucf� oihe�• �dd�•ess as a party may noFiiS- tlie otEier i�t �t=riti��g, No#iees ta the City shall be addressed to tlie Cit}= at 941B 7'e�as Stc•eet, Denio�3, Te�as 7G209 a��d marl;ed to tl�e attentic�n af tl�e Ptiecl�asiE�g l�ia��ager. Ri'P 5030 Page 10 of 20 35. RIGHTS TO BID, PROPOSAL AIlTD CONTRACTi3AL MATERIAL: All in�tcrial stibn�i[leci b�� il�e Contr�ctar to ti�c CiEy sha31 beeo�ne �roperty of tlie City upon �•eceipE. AE�� portions of sucl� Enaterial clai�i�ed by the Contr�etar to i�e p►�opE•ietary n�ust be cleaE�13� �narked as sucl3. Dete�•n�i��ation of tl�e �ubtic ��ature of the matet•iaE is subject to the Tesas Public it�for�natiar� Act, C:[�apter 552, and'i'e�as Go�rer�unent Code. 36. NO �'VA,RRA,N'�Y BY CITY AGAINST II�FRINGEMENTS: Tl�e Cont�•actor represer�ts aiid ��a��ants to t1�e Cii}� ti�aC (i) the Contracto�• s��al[ pro��ide tlie Cit}� good and indefe�siUle title to t1�e deli��erables and {ii} tE3e deli<<erables sapplied b�� the Ca��#c•acto�• in accordance with tl�e specifications in tl�e Co��ta�aet ��ill not it3fringe, directly or co�ttributorii��, a�ly patet�t, tt•ademark, eopy�'ight, tracfe secret, oe any othe�• inEellectua( prope�•t5r right of any f:ind of any tk�ird party; lhat �ia claims have bcen �nade b�� ai�y person c�r entity �i�ith respect to tlic o�i�nersliip or aperation of the deliverables a��d the Co�3tractor does not �:no�i� of an}� ��alid basis %�• any sucl� c[aiEns. The Contr�ctor shall, at its sole eapense, �efend, iE�cfen�E�ify, and hofd the Ci€}� l�armless froin ��d against a11 Eiability, ciaEnages, ai�d eosts {iiie{uciit�g enart costs and �•easonal�Ee facs of attflri�eys and other p�•ofessionals} arising aut of or resulting fro�n: (i) a��}� claim that the City's e�ercise any��here in tlie �t�o�•Id of the rights assaciated �a�iEh the City's' o�t�nersl�ip, �nd if applicablc, licet�se rights, �t�d its use afthe deEivc�•a6les infi•inges the intellecival �ro�e��ty rigE�ts of any third paE•t��; 03• {ii} ti�e Cantc•acto�•'s bceacl� of any of ContE•actor's represer�taiions o�• ��rranties staied in this Contr�ct. In tlie e��e�it of any such clain�, the CiEy sE�all i��ve tE�e righf to tt�onitor sucli clai�n or at its option engage its o�vn separate counscE ta �et as eacounsel on the Cit}�'s bel�alf. rartE�er, Conti•actor agrees that the City�'s speciiications reg�rding the c[elive��ables shal[ ic> >�o �iTay dimic�ish ConEractor's warranties or obligations unde�• Tliis paragr��h ai�d the Cit�� makes no �i�arranty iliat the praduction, de��elopineiit, or deli��er�� of sucl� deli��erables �vill noi impacE sach «��E•ranties of Co�ii��aetor. 37. COIVFIDENTIALITY: ln order to provide tl�e deti�=erables to the City, Conti•actor may reqt�ire access to cert�in of El�e Cit��'s aE�d/oe its licenso�•s' conftdentiai i��formation (incle�ding inventioE3s, E311��0)�ee ini'orn�aiion, trade secrets, confidenii�l knon�-ho«�, canf dentia! business in!'ortnation, and otl�er infac•maEion �vhich i}�e City a�• its [icensors eonsider co��de��ti�lj (collectivel5�, "Cot3f'tdential Infortnation"). Contractor ac�:no«�ledges and �grees ti��t tlic Coiifide��iia] Tnformataon is the ��afuaU[e prapert�� af ihe Ci6y aud/or its licensors af3d any unautliorired tESe, ciisclosure, CIIS5�1�]111c�I1(�Fl, or otlier release ofthe Co��fidential I�tfarmation ��ill substantialfy injiire the Cii}� a�id/ar its [icensors. The Coniractor (i�cludi�3g iis cmployees, subco��tractors, agei�ts, 03• ►•epresentatives} agrees ihat it «�ill inaintai�� the Confdenti�l Info�•mation in strict conftdence and shall �tot disclase, disse�ninate, copy, divuEge, recreate, or otheru�ise �ESe the Confidentiai lnformation t��itlaout llie pt•ior ��rittei► conse�tt of tlie City or in a�7ta►�ner not eapressly per�nitted under this Ag�•eenient, unless the Conticfentia] I��fo►��nation is rec�tEired to �e disclosed by la�� or an order of an}� couri oE• other go��ernEnenta� authorify ti��ith pro�ei• j►u•isdictioi�, �ro��ided the Coi�fractor pE•amptlJ� notifes [he City before disclosing sucli i�iformation so as to perinit the Cit3° �•easonable tiine to seek af� appE•opriate proteeti��e order. "1'l�c Contractor agrees to iESe protecti��e measures no Eess st��ingent tha�� ti�e Cantractar uses �i�ithin its o«�n b��siness to }�E•otect iEs own �i�ost �-aluable ir�formation, rs°hicl� �rc�tective �neasures shalE u�ider all ci�•euinsEanees be at ieast rcaso��able mels►�res to ensure ti�e continued confideittiality of the Co��fidential l��iorination. 38. O�'4TN�RSHIP A1�D i}S� OI' DELNERABLES: The Cit}� shail ati�rn all rights, tiiles, and i�iterests thE•oughout the ��orld in and ta t��e deiive��ab[es. A. YatenEs. As to any patentable subject matter co��tained i�� tlie deli��eeables, the ConEractor agrces to disc[ose sueh p�te�itable suE�ject mattei� 4a i��e City. rurtlicr, if requested liy tlie City, the CoE3t�•RCtor agrees to assign and, if necessar��, cat►se eacl� of its e�np�oyees to assig�� the enEire right, title, and interest to specific inve��tians under se�ch patentabfe sabjcci matter to Ehe City ar�d to e�ecuEe, aell•iio�ti��edge, and deli�rer aiid, if necessary, caUSe each ot� its employees to excc�tte, ackno��ledge, and deliver a�� assignEnent ol�letters paienl, in a far�n to be reason�t�ly approvecf by the Cit}�, to the Cit}� upon 3•equest by the City. B. Co��riglits. As to any deli�rcrables contai�ii��g co�yc•ightabEe subject v�atter, tlie Co3�tractar agrees thlt a}�on their c�•eation, sE�cl� deli��erables shall be eonside��ed as �+�a��k madc-fo�•-}�ire �� the Co��[j•actor far tl�e City �n� the City sl��l1 o�v�i a[1 coPS�rigl�cs in and io suct� deliverab[es, provided ho�vet�e►•, tl�at �tothing in this Paragrlph 38 shall negate li�e City's sole or joint o�vnership of any stich delive►•a61es arising by ��irh�e of the Cit��'s sole or joint a�iihnrsE�ip c�f such deliveraE�lcs. Shoalc� b}� operation of Ea�j�, sucl� deliverables nat be co�isidej•ed �vor�:s n�ade-for- ltire, tlie Co��iractor i�eE�e�� assigE�s to t[ie City (anci agE•ees to cause each of its e3nplayees pro��idi�ig services lo tl�e Cit}� }�cE•e��ndeE• to e�ectEte, ack�io�i�[edgc, a�id deli��er an assign►ne�tt ta the City of} all �i�ortdti�ide righ€, [itle, and interest ii� and to such deli��e�•ables. `Viti� respect to such n�oE•k made-f'or-hire, the ContE•actor agrees to c�ee�ite, acf�nou�ledge, a�3d deli�rer �nd c�iise eaci� of its eE3i�loyees providit�g services to ti�e City hereu�ideE• to e�ec�iie, ae�no�vledge, and deliti�er ��oE•k-�nade-for-liire ag��eement, i�� a form t€� be reasaE�ably app�•o��ed by the City, to i€�e RFP 5030 Page l 1 of 20 Cit�' G�30t3 CICI1 V�i')� of suel� deli��eraUles to the Citp or at such other ti�ne as the City inay request. C. Additiona[ Assignme��ts. "I'he Co��t�•actor ii��•ther �grees to, aE�d if applicable, cal�se eacl� of its et��plo}�ees ta, eseevte, ack►io«�fedge, aEic� deliveE• a][ ap�3licaEions, specificatioE�s, o�tf�s, assigitments, and all otlier inst�•iimeE�ts tit�hich tt�e City might E•easonabl�� deem neeessarS- in order ta appl}= fo�- and obfai�� cop}�righE proiection, r��ask ttrork registration, iE•aden�aE•k regist�•�tion a�id/o3• �rotection, let#ers p�tent, oE• any sicnilar rigf�ts i�i an�= and al1 coiintries a��d in orcEe�• to assign and con��eJ� io tl�e Cit��, its successo�•s, assigns and non�inces, tlie sole and erclusi��e �•igl�i, lille, and interest in and to �lie deli��erables. T�ie Contc•actot•'s obligations to eiecu#e, ac[:no�i�Eedge, and deli�re�• {or cause to be e�eeuted, ackno�t�Eedged, ai�d delivered) i��str«�nents or �apers sucl� as t[�ose desc3•ibed in tltis Paragraph 38 a., b., and c. shalt conti��ue aftcr the termination of tf�is Contrlct ��ith �•es��ect to sucl� deEi��e�•ables. In the e��e��t tlie Cit}� should not seel: to obt�in eopyright proteetion, n�as� �i�orl: registr�tio�� or patcni pro�cctioE� for any of thc de[ivcrables, buf si�ould desire to keep ihe san�e sec�•et, the Contractor a�recs to trcat tk3e san�e as Cor�fidential Info�•matian under the terms of Paragra�li 37 above. 34. PUSLICATIU�'S: AEI published niaterial and �i�ritten re��orts siEbmittec� tinder tl�e Conh•act �nust be originallp develo�ed n�ate��ial untess other�i�ise specifcally pj'ovidect in tlie Contraci. l�Then �nateei�l not o�•iginall�� de��eloped is ie�cluded iE� a repo�•t in a��y form, the sflw•ce sliall be identified. �ta. ABVERTISII�G: '1'he Contractor shal� not ac3��ertise or p��blish, �i�itho�it the City's prior consent, tlie fact fhat t��e Cit�= has entered into the Co��traei, except to ihe e�tent rec�uired by Ean�. 41. NO C41�TING�NT �'��5: The Contracto�• �t�arrants that �io �eE•so�� or seliing age��cJ� has been emploJ�ed or a�etai�ied to solicit ar secure the Cant�•act upo�� any agrcement o�• understa�3di�tg !'o�• ec�mn3ission, pe�•cent�ge, bE•okeE�age, or conti��ge�tt fee, e�cepting bona fide e�nployces of bona fide established canin�ercial oE• selling agencies maitatai�ied Uy tl�e Contractor for the pi3E•pose of secuE•ing business. FQr UE•eacl� or vio[atio�3 of this ��rranty, the CiE}� shafl ]tave the ��ight, in adciition to atay= atlier ren3edy a<<ailable, to cancel ti�e ContE•act u=ilhout liability and to deduct fi•o�n any amounts ot��ed ta tl3e ContractoE•, or other�i�ise reeo�rer, tE�e full a�no�ant of such corncnissiar�, percenEage, brnke��agc oe conti��gent fee. 42. GRA,'!'LIITJES: The City n�ay, by «�rittei� notiee to the Contracto3�, cancel the Cont�•act ��ithaut [iability if it is determined by tlic City that grataities ��ere offered €�r gi��ei� bp the Cont�•acto�• o�• a�i�= agent or represei�[atii�e of if�e Contractor ta any office�• 03• einplayee of the Cit�� of Denton «�ith a��ie�sr to��ard securiaig tf�e Contract or securing fa��orable #reatinent �i°ith respect to ti�e a«�ardi��g or a�ne�tding or the maki��g of any dete3•ir�inations �;�ith res�ect ta the perfo��7�ing of such eontract. In the event tE3e Contract is canceEed by tl�e Cii}� �ursua��t to this pro��ision, il�e City sl�all E�c en€itled, in addition ia a�ty oiher rigE�ts and remedies, i0 ]'CCOl'CP O[' �5'iik�liold tk�e a��zoi�ait of tf�e cost iiicurred by the Contractor ii� pro��idic3g s�eh gE•ati�ities. 43. PROHIBITION AGAINST PERSONAL II�IT�RES'I' IN CO1�iTRACT,S: No offieer, e►nployee, independe�it consultai�t, o�• elected official of the City ��=l�o is in��olved in tlie de��e[op��lent, eva{a�ation, oj• decision-n�aki�ig �rocess of the pe�•formance of any solicitaiioE� s3�al[ ha��e a financia( inteE•est, direct or ir,direet, in the Contract E•esulti��g froEn tE�at solicitatioE�, AnJ� �i�illfi�l ��iolatia�� of this sectit�Ej sh�fl constit��te iEnp�•4priet�� i�� ofiice, aiid ai��= o�ficer or emplo��ee guilt�� tl�e3•eof sE�all be siibject to diseiplina��y action t�p to atid i�icl�tding dis�nissal. A��y viola#iot� af this prot�ision, ��itl� the l;no��ledge, expressed ar in�plied, of tlic Cont�•�ctor shall �•ende�� the Contract t�oidable by the City. "I'i�e Contractor shall co��plete 1nd s�bmit tE�e City's Confliet oi lnteresf Question[3�ire {Attachu�ent B). ��1. IND�PEN➢ENT COI�ITRACTOR: The Cont�•act shail not be co�istrucci as creating an e�nployer/cui�Jo��ee relatiansliip, a pac-tnership, or a jaint t�e��tu�•e. The Contractor's se��ices shaEl be tliose ofa�� iE�dependent contraetoE•. 7'he Contractor agrees ar�d uilderstands [l�at t{ie Contract does ��ot grant �ny rights or prii�ileges establisf�ed for en��layees of tl�e Gity of benton, Tesas for the pi3E•poses of i�icoine tax, ��itE�hc�Iding, sacial sectu•iiJ� taxes, ��lcatic�n or sick leave benefits, «<orker's cainpeE�satiai�, or any otlieE• City ernp�o��ee be�iefit. Tlie Cit}� shak3 noi have supe�vision aiid control of the Cont�actoc• aE• aEiy em�loyee of the Coi�tractor, and il is e,r•pE•ess1J� understoc�d tE��t Contr�cto�• sliall �erfo�•ni the services l�ereunder accoc•ding #o tlte attached specifica[ions at t�e general dia•ection of'the Cii�� ianager oithe City of Dei�to��, Texas, ar I�is desigiiee under d�is agreeinent. �5. ASSIGNM�N'I'-D�I.�GATJ4N: Tl�e Contrae4 s�a[1 be binding upon a�id c��sure to ti�c l�e�icft af ti�e City and the Contr�cto�• and tiieir �•espective sucecssoE•s a�ui assigns, provided E�a+��e��er, t[�at no right oj• interest ir� the C'ont�•aet sl�all be assEgned anst no obligltion sha[l Ue deiegated by the Cantractor �t�itho�at the prior «�ritten co��stnf of tlie City. A��y atte��pted assignment or delegation Uy the Ca��tractor shall [�c 1�oid unless made iE� eoi�forniity E;�ith tl�is RFF 5430 Page 12 oF20 }�aragra}�i�. `I'he Ca�it�•aef is no! intended fo conf'er rigl�ts or henefils on ai�y person, fie�il oj• cntity not a part�� heE•eto; it being the intentian af the parties tl�at ti�ere are no thi�•d par[}� beneficia�•ies to the CoE�tract. �1G. �VAIVER: No claiEn or rigiit arising out oCa breach of the ContracT can be discharged in �`�hole or in part by a «�ai<<er or re�iu�iciatior� oi'tlie elai�7� or �•ig1�E ai�[ess tE�e ��ai��er or re��miciation is sUpported by �o»s€ae��t�o�� a �s;�, i��riting sig��ed by tk�e agg��ieved �aE-1}�. No ��aiver by either tE�e Contracto�' or the City of any one or �7iore evenis of' defatEli by Fl�e ather party shal[ ope��ate as, ar be constriied to be, a�e�•n��nent �vai��eE• of a�i�= rights or obligatio�is tinder tlie Contc•act, or an c.r•press oi• i�nplied acceptance of'an�� otlier e�isting o�• future default or defaults, �i�hethet• of a siEnitar o►• differe��t character, 47. MODIFICATIOI�S: T}�e Contract ca�i 6e �nodi�ed o�• an�ended only b)� a �i�riting signcd by batii partics. No pt•e-E3ri�tted or si�iiilar ter�ns on an}� the Co�tiractoE• in��oiee, orcfeE• oE• otE�ei• dacume��t shall have any foree or effecE ta ehange t[�e terms, eovenants, and conditio��s of the Contract. �8. TN'J'�RPRETA�'IOH: The Co��traet �s i��te►�ded bJ� tf�e partics as a final, co�nplete and e�clusi��e state�nenT of tl�e terms of their agree�ne�it. 3�o course of prior dealing bet�veen the p��•Eies oe co��rse of perforinatice or usage of 1}�e tE•ade sl�ap be relevant to s�pple�nent oE• esplain a��}� teE�n� used in tlie Contract. Alii3o��gh tlie CoE3tr�ct inay I�a��e beei� subslantia[ly draf�ed by one part}�, it is #he intent af tl�e p��•ties that �li p�•ovisions be constr€ied in a ina�ine�• to 6e f�tir to botl� parties, readi�ig no pc•avisians more st�•ictly against o�ie parEy or the aiher. «Thenever a tern� defi�ied b�� the UniforEn Commercial Code, as enacied b�° tl�e State of Tesas, is used i� tl�e Contract, the UCC defi��ilion sh1I1 eo�itrol, uE7less other�i�ise defi��ed in tE�e Co��Eract. �9. DISPi3�� RESOLUTION: A. lf a dis�ute aj�ises o►�t af or �•eiates ta t��e Cont��act, or the �reacl� tliereof, ihe pariies agree tc� nego[i�te prior to prosece�ting a suit for dantages. I�ot��ever, this section does not prohibit the fiiing of a la�vsuit to toll tl3e �•un��i��g o�'a statUte of liinitations oE• to seek i�tji�nctive re(ief. Eitlier party �nay n�ake a«��'ittei� request for a��eetir3g l�et�t�eec� representati��es of each part�� i�iihi�� Fourteen (1 �) calendar days afte�• receipt of the request or sucl� later periad as �gi•eed by tire �a�-ties. Eacl� p�rt�� shall incic�de, ai a�nini�num, ac�e (1) seitior le<<el individuaE n�itl� �ecision-making autharit�= regarding tl�e ciis��ute. The pu��pose of ihis aE�d any subsequent meeting is to atte�npt in goad faii�� to nega#iate ��•esolutioi� of tf�e dispute. 1F, �i�itl�in tl�iriy {3Q} ca{endar days after such meeting, tlie parties ha��c ��ot ssicceeded i�� negotiating a�•esoli�tion of the dispute, they ��il[ p�roceed direct�� to n�ediation as cfescribed belo��. Negotiatia�� n�}� 6e ��i��ed by a wrii#en agreemenY signed by both parties, in �+=hich event the �arties �na}� proceed directiy to �t�ediation as dese�•ibecf beloc��. B. If tl�e efforts to resol<<e t3ie dis�ute througi� negoiiaiia�� fail, or the parties �i�aiti�e the ��egatiation process, the �a�•ties n�1y select, witl�i�� iEiirty (30) ealcndaE• da}�s, a mcdiata� Erained in mediatio�t skips to assist �i�ith resol�rtion of the dis�ute. Should the}� cl�oose this option; the City and tl�e Co�3tractar agree to act in gQOd faitl� in the seleetion of ft�e mediator �nd to gi��e consideratio�� to gualifed i�dividuals nominatec� to aet as i�3ediato�•. NoEl�i��g i�x flte Cc�ntj�act pre�renls the parties fi•om relying on the s[:ilis of a�ersvn �i�ho is trained in tlie siibiect n�atte�� of tl�e disp►�te or a cont�•act interpretation esperT. lf tl�e paa•ties fail to agrcc ot� a mediator �i�ithiit Eltirt�° (30} calendac• da5�s af initiatio�� of tl�e mediation pE•ocess, ihe mediator sE�alE be se�ecied by t(�e lletaton Cau��ty Alternative Dispt�te Resolution Pro�rain (DCAP). Tl�e parlies agree to plriicip�te iEi �nediation i�i good faith for up to thirt}� (30) calet�da�• days fi•o�it tlie date of tf�e f��st Enediatio�� sessio�i. The City a�id the Conh•�ctor ��=ilt sha�•e tlte ntedi�tor's fecs equally and [he �ac•ties «�ill bear their o�i�� costs of partici}�ation s��cli as fees for any consUlFa�its or aiYOrneys tlic�� tna}� utikize Io E•eprese�i[ ti�en� or ather�l�ise assist then� in it�e �nedi�EioE�. 54. JURISDIC'T`ION AND VENU�: TE�c Contract is �nade u�ide�• and shall be governed by the l��s�s of the S[ate of Te�as, includi��g, �i�Eie3i appiicable, the Ua�ifori�5 Cominej•cial Code as adopted in Te�as, V.T.C.A., I3us. & Co�ttm. Cocie, Cliapte�� 1, excludiE�g a��y rule or princi�,le that tt�oUld refer to aitd appl�� t}�e substanti��e la�s� o#��nother state or �urisdictian. All iss�es acisir�g fi•a�tj dtis Cont�•act shall be resolvecf i�i the courts of' ]7enton CotmEy, Texas aiid Ehe parties ag��ee to suhcnit to the e�cl��si�re pe�:sonal jt�risdiction of such courls. Tlie foregoii�g, ho�veve�•, s13a11 �iot be eanslruecE or inier�reted to lin�it or restric# Fhe right or �bility of the City fa seek a��d secr�re injunctive relief iro�i� aity eompete�it atEil�arity as contemp[ateci herein. SI. IN�'ALIDITY: "I'lic i��validity, illegality, ar unenfarceability of a�ry pravisio�� of tf3e ContE�act sE�ail i�i E3o tt�ay afleet ihe ��iidity ar enforceabilit}� of any otlicr porYion o�• provision aT the Coaitract. �n�� void p��ovision shal[ be deei�3ed severed fi•oi�� Elte Co�tlract aiid tlie E�alailce oi the Contract sl�all be co��striied and e��forced as if the Contract did ��ot cantain tl�e �arEicular �ortion ar prot�ision held to be void. The pa��ties further agree to refoE•nt tltc Contract to RFP 5030 Page 13 af 20 ��e��ace any stric�:en pro��isia�� «-itlt a valid �rovision il�at comes as close as possible lo il�e i��tent of' tlie stricken provision. Tl�e ��rovisio�ts of tl�is section sh��l not pre�reE�t this entire ContraeF fi�oni being vaid shauld a}�c•ovision «�hici� is the esse�ice of the Go��t��act be deter��ined Eo be void. 52. HQLTDAYS: Tf�e follo��ing holida��s are obserred by tl�e Ciiy Ne�v Year's Day {abser��ed) A4LK Day A4e��orial I7a}� 4ti� of tiil}� Labor Day Tl�anksgiving Da�, 17ay After `1'hanksgi��ing Christ�nas �:��e {obser��ed) Cliristmas Day (obse�•ved) I�Fe«� Yea�•'s Day (obscrved) If a Legal Holida�� falls o�� 5a#f�rda��, it ��il[ be obsen�ed o�� the p�•ecediE�g Frid�y. Tf'a Legal Ho(iday falls on Su►�c�a��, [t ��ill be obse��ed o3i tE�e foflotii=ing Mond�y. No�•n�ai hours o� o}�er�tion shall be bet�i�eeE� 8:00 am and �;t3D pm, Mond�y tE�rougl� �'rid�y, e�cludi��g City of Den[on Holidays. An�� scheduled deli��eries or �+�ork perfo�•mance no! �i�itE�in the ��onnal lioei�•s of o�eeatio�3 must be approved by the City A4aitager of Dentoi�, Te�as or his authorired designee. S3. SURYIVABILITY OF OBLIGATIONS: Al] pro��isions oi'the Contrac4 ti�aE i�npose continuing obligafiot�s on the ��arties, incEuding be�t ��c�t lin�ited ta Ehe t;°a�•rant��, indemnity, a��d conlideniialily obligatia��s oi'tl�e parties, s}�all stu•��i��e tlie e��i�•a[ion oE• termination o1'the Cont�•acE. 54. NON-SUSPEt�SION OR DEBARMENT CERTIFICATION: The Ciiy of Denton is prohi�itecf fi�om contracting �sritf� a�• making pri��e or sub-a«�ards to �artics ihat aE•e suspended or de�arred or E��l�ose principals �re suspended or del�arred from l�ederal, State, or City of DenEo�� Contracts. 13y accepting a ConEract �t�ith the Cit��, ihe \�endar cer€ifies tk3a! its fin�i ar�d its prineipals are r�at cuE•�•ently suspended or debarred fi•o�n doing busiitess E��iil� the FedeE•al GoveE•ninent, as i�ir�icated by [lie General Ser��iees Admi�tist�•atio�� List of Parties Ezcluc3ed fi•om Federai ProcuE•emen€ and No►�-P�•oeu�•e��ient Prograi��s, ihe State of Te�as, or thc City of T�entoE�. 55. �QLIAL OI'PORTiJNITY A. Equal En�ploymeni Opportuvity: No Offeror, or Offeror's agent, si�alE engage in an}� discE•i�ninatory emplo}�c��ent practice. No pe�•son shal[, on the grounds of race, se�, age, disability, creed, coior, genetic testing, ar E�ational arigin, be refused the benefits of, or be otlte�'�+�ise subjected #o discri�»ii�atio�� e�nder an�= acti��ities ��es�ilEi�3g from tl�is RFQ. 13. Ame�•icans with Ilisabilifies Act (ADA,) Con�plia�acer No Offc��or, or Ofteror's agei�t, shall engage in ai�y disCrin�inatorST employment practice against individuals r��ith disabilities as de�'ined i�� the ABA. 56. BUY AM�RICAN ACT-SUPPLI�S (Applica6Ie to certain federally� i'unded requiremez�ts) 7'fte follo«�ing fccfera[ly fii��ded req�iirenients ��•e ap�Iicable, i�� addiEio�� to the specific federall}� fiinded requirements. A. Definitiai3s. As i�seti in ihis ��aE•agrap3i— i. "Component" mea�is �n artiele, materia3, or su��}�ly iE�corpc�3•ated directl�� into an end �raduct. ii. °Cost nf camponents" �i�eans - (I) For com�o��ents purch�sed b�� the Conlractor, tl�e acquisition cos[, including tr�nsportatio�3 costs €o ti�e pEace of incorpo�•ation into the end ��roduct (��I�etl�e3• o�• not st�c}� eosts a�•e paid to a don�estic 1i�•n�), anct ��y a�pEicable d��ty (��E�eEheE• or not � duty-#'i•ee eni►•y cea•tiiicate is issueci), o�• (2} Far compo��ents mai��fact��red vy tlie Co��iractor, all eosts associatec� �t�ith the �nai��f'�eta�•e of the coi�3ponent, including tr�nsportaiion costs �s desc��ibed i�i pa�•agrapl� {1) of t}�is defiEiitian, plus a]locable overiiead costs, but ezcluding profit. Cost of con��onents does not niclude ai�y eosts associatect ��ith !he �nanuiacture of [}�e enc� �roduct. iii. "DoEnestic end product" mea��s- RFP sa3o Pa�� 1� fl�aa (1) A�i anmanal'aelured end �rodfict n�ined or p�•oduced in the UniEed �tates; or {2) An end produet �7�anufactured i�t tl�e Uni€ed Stales, if the eost of its compone��ts c��ined, E�roduced, ar manuEaetuE•ed in the United Stales e�ceeds 50 �ercent o1' the cost of a]k its co�i�pone�tts. Compo��ents of i'o�•eign origin of !he same elass or E:ind as ihase it�at ihe ageney determines are noi mi�ted, produced, or �na��uf�ctEaj•ed in su€fcie��t and reaso��ably a��ailab[e co�t�n�ercial quantities of a saiisfactory c�t�ality are tE•eated as do�3iestic. Sc�•�s� geneE•atecl, callected, ancf �repared fo�• processing i�3 the U�3ited States is considered domestic. i�=. °�nd pE•oduci" meaE�s those aE•ticles, materials, aitd stipplies to be acqE�ired u�3der tl�e conEract fo�• p��blic use. ��. "l�oreigi� end prodi�c[" Eneans an end product oiher th�� domestic end ��roducE. ��i, "United States" mea��s the 50 5tates, the i7ist�•icf of ColumUia, and outlying areas. F3. The Buy A�ne�•ica�� Ae! (�11 U.S.C. l0a - lOd) pro��ides a�reierence for don�estie end produeEs %E• supplies aeqaired for �ESe i�i the U��ited Staies. C.'I'l�e Cify does not E��ai�itain a lis€ of'foreign articles tk�at ��ill �e treated as domesEic f'or tl�is Contraet; birt �rill consider for appro��al i'oreig�� artieles as don�estic for Ehis prodi�et it' [lie articles a�•e on a iist - ap�raved by anotl�er Governinental Agency. '1'l�e Offeror shall sub�itit docu��ei�tation �vith tf�eir �ffer cfemanst�•ating that the artic[e is on an appro��ecf Goti�eE•ninental list. D. "1'he Co��iraetor shall deliver o��ly domestic ei�c3 �n•oducts except to ihe extent that it specified deli��ery oil'o�•eign end produets in the �rot�ision of tk�e Solieifation entitEed °i3u}� A�nerica�i Act Ce�-tificate". 57. RIGHT TO INFORMATION: 1'ite Cit�� of llc��ton reserves the rigl�t to use an�� and all infor�nation presented in an�� respo��se to this solici€ation, c��liether amended or not, c�cept as prohibited bp I�w. Seiection of reiection of the stibn�itta[ does nQE �ffect this rigi�t. 58. LIC��iS� �'E�S 4R TAX�S: Pro��ided ihe sotieitation ret�uires an a�varcEed cont��actor a�• se�pplier to be lieei�sed b�r t��e State ofTe�as, any and ali fees a�id tates are the responsibility aftl�e respa��de��t. 59. PREVAILING �i'AGE RATES: Ali res�oncfents r+�ill be required to eomply z��itl� Provisio�� 5159a of "\�erno��'s A��notated Ci��i! Statutes" of tl�e State of `I'e�as �ti�itii E•espect ta the payinent of pre��ailing �t�age �•ates and prohibiting discE•i�nEn�tion in the e�nployenent practices. h ltp://ev�a=u�. aceess.gp o. �t��/d a��isbaco��/tt.lttna 1 60. C4MPLTANC� 1'4'1TH AI.L STAT�, �'�b�RAI., A1�fD LOCAT. LA�1'S: The co��tractor o�• s�pplier sl�atl con�ply «�ith a[l State, Federal, ��id I.aeal la��s and rec�uiE•e�ne��is. Tlie Respandent �niist comply �i�ith ali a}3�licable IaiR=s at all t�mes, iitc[uding, n=ithout lintitation, tE�e %Ilo��ing: {i) $35.p2 of tlie Tezas Pe��al Code, �vl�icl� prol�ibits bribery; (ii) �36.fl9 of the Te�as Penal Code, �R=lticlt prohibiis the offering oi� con%rring of benefits to p►�blic serva�its. Tlie ResE�oE�dent sE»ll give all notices and cninpl�� »�itE� all lar+�s aiid regi�iatia��s ap�Eicable to furnishing ar3d pe►•foE�ina��ce of the CaE�tract. 61. FED�RAL, STAT�, A.NII �.00A�. R�QUIR�M�NTS: Rcspondent siial] dcil�onsta•aie o�i-site coe�ipliance n�ith !he Federa] Tax Refo�•in Act oi 1986, Section 170G, a€��e�iding 5ectian 530 of tl�e Re�=e�iae Aet of af 197$, deaiing s��itl� issuance of Por��i «'-2's !o eo�n�non la�a� employces. ItespondcnE is res�o��si[�[e for both iederai anc{ State uneinplo}�nient i►�surance co�rerage and standard 15'o��ke�'s Compensatio�� insu�•anee eo�rerage. Responc�ent sliafl ei�sure compliance �vith alE Fcdera] and Siate tax lau�s and �i�itl�ho[di��g reqi�ireEnents. The City of Denton slta[1 E�ot bc Eiable tc� Res�ondent oa• its emplayees foe a��y UnempEo��neE3t or 13'orkers' Compens�tion cai�erage, o�' fede►•a! ar State n�ithliolding requirei��cnts. Contractor shall indcm��ifj� tl�c Cit�� of De3iton and sha�l p�y al! eosts, penaltics, or [osses resulting fi•om Respo�tdent`s ainissian oE• bee�cl� ofthis SectioE�, 62. DRUG FREE 1�'ORKPLACE; '�'he co��tractor st��[l eo�npl�� viih the ��plicable �ro>>isio�ts of the Drug-Free llrork 1'lace Aet of 1985 (Pubiic I.a�R� l OQ-69(�, Title \!, Sut�tit�e 17; �E U.S.C. 7Q1 ET SF,Q.) and maintai�i a c�rug- fi•ee �vork en��i�•onmenE; and tEie lin�l r€�le, go��er�3ment-«�ide rec�uire�7�ents for d►�iig-fi•ee ��o�•k p[ace {gE•a��ts), issueci by the Offiee of A4anage�7ient and Buc�get anc[ ihe Depa�•t�nent of Defe��sc {32 CI'R PaE�t 2SQ, �ubpart F) Eo i3i�ple�nenf the pE•QVisions of tlie D��ug-i'ree 1�TOrk Place Act of 1988 is i�ico�•porated by refeE•ence and Ehe cont�•actoe shall caui�ly �i�itl3 tlie re]evant pro��isio��s thereof, ineluciing aE�y ai��endiueE�ts to the final E•ule that may hereafler l�e issued. 63. R�SP�NAENT LIASILITY FOR BAMAGE TO GOV�RNM�NT FROP�RTY; Tlie RespoE�dent slj�ll �e lia€�Ee frn� all dan�ages to go��e3•��ie��#-o�vned, ieased, or occupied prape�•i�� a�id eRuipFne��t caused by the Respondent af�d its e�»}�layees, agents, sui�ca��t��actoes, and sl3ppliers, inelt�ding any deti��ec�}� or cartage compan}�> in connectio�i RFP Sfl30 Page 15 af 20 �i�ith a��y {�e�•forEnance pursaant to ihe CoE�teact. The Respo�ident slt��l notify the Cit�� of DentoE� PI'OCltl'�E7t�ill 1��c�f3c�gC1' lll �i�riting of any suci� da�nage �vithin one ( I) caEencEar ci�y. 64. �'ORC� MAJ�UR�: Tl�e City of De��lo�3, a�3y Customei�, and the Res��a�3dei7t sl�al] itot Ue respo��sible ior perfo��n��ce unde�• the Co�tt��act s]iotEld it Ue pre��enled fi�ai�� per%rinanee by aj� act af �var, orde�• 01' [ega] authority, act o1'God, or other unavoida6le cause ��ot attriUutable to 4he fault or negligence of tlie Cii�� oiDe��to��. In tlie e��er�i of an oceurre�ice under this Seciion, tl�e Respondent �vili �e exce�sed fi�on� any fu�-ti�ee ��erfor�7i��ee oE• ohsc�•v�znce of the rer�uirements so affecied for as lo��g as stich eircu�7�stances �3��evaiE aitc3 tlie Respo�ident continues to iESC coini��erciall}� reasonable efforts to recoE��mencc performac�ce or obsc�•�raE�ce �i�l�cnevcr a��c[ to �i�l�ate��er e�tci�Y possil�le ��ithout delay. The ResE�ondent shail i�nmediately noEifj� the City o!' Denion Procurement Manager by tekephone (to be con�ri3ied in «��•itiE�g ��=itt�iE� five (5) calendar days a!'tE�e incep�tion of sE�ek� oecurrence) �nd desc�•ibe �t a reasonabie level of detai[ thc circu�nstances causing the non-�erfoE•n�ance o�• cielay i�� perforniac3cc. 65. NON-ti'VAIVER OF RIGHTS: Pailure o!' a Part�� to rec��tire peri'orr��ance by anothei• Pa�•ty uE�der the Co�itraet �i�ilE ��ot affect the right o�' such Party ia rec�ui►•e performance in the futare. No dela��, 1'ailure, or E��aive�• ot' eitlte�• Paa•ty-'s exe�•cise or partia[ esercise of any ��igl�t or remedy uncie�• tl�c Co�itract shali operate to fin�it, inspair, preelUde, cancef, ��aive or otherca�ise aifect sucl� ��ight or re�nedy. A rt=ai��e�• b}� a Party af any breach o!' any ter�n of ihe Cont��act will not be constr�ed as a�vaive�• ofa�3�� contiE�uing or succeeding bE•eacl�. 66. NO 1YAIVER OT SOVEREIG�V IMMUNITY: Tf�e Pa�•ties cxpressly agrce that no pro<<isio�i of the Co�itract is i�� an�� a�aS� inieE�de� to coE�stitute a n�aiver by the Cit}� of Dento�� of an}° i�nn�unities froni suit or fi•o�n tiability ihat tk�e Cit�- of Dento�� may lia��c by operatinn oila«�. G7. RECORDS RETEI�'TIOI�I: Tlte f�es�o�deitt shatl retain al] financial ►•ecords, supporting docu�ne�tts, statistieal records, aiid aii}� other records or boof�s rel�ting to tlte peefarinances ealEed fo�- in the Conlract Tl�e Respondent sliall re[ain aIl sucli E•ecords faE• a�eriod of foi«• (4) ye�E•s afler !he expi�'ation of the Co�t[raet, o►• unEil ihe CPA oE• Siate Auditor's Of�ice is satisfied thlt �1[ �udit aE�d ]i#igation �natters ��•e i•esoi<<ed, «�hiche��er period is lo��ger. Tl�e Respo�ide��i sl��ll gra��t access to all baoks, records and docuEnei�ts �ertinent to the Conh•�ct to t3�e CPA, ihe SEate tludito�• a1' Texas, a�id �ny federat governn�entai e��tiE}� that h�s �utho�•it�� to revie«- records due to federal funds being s�ent u�3der the Cc�nt�•act. RFP 5030 Pagc 16 of 24 Exhibit B Special Terms and Conditians Coutracf Ternts The cont►•act ter�n �vil( be one (1) year, effective fi•om date of award. Tl�e Cin� a►�d the An�arded Contractor sl�all have the optio�� to rene�v tliis c�tttj'aet for at� atlditionaf fot�i• (�) one-yeai• pei•iads. The CoE�tract s(iall ca►��inence u�o�� tt�e issua��ce of a Notice of A�va��d U3� the Cit3� af Dentoi� and s��all a�itor��atically rene«� eael� }�ear, fi•om the date of ��vard 6y City Cotc��eil, unless eitl�er �arty notifies the other prio�� to th� sche[�ulet� i•�ne��al t�ate. At the sole optia» af tlje City oF De��toE�, the Co�ltract �na�� be furt}z��• e�tei�ded as t�e�ded, not to eace�d a total af six {6) inonths. Tatal Cou#ract Amount Tl�e contact total for services shall ��ot eseeed $630,000 per tot�E caj�tract terin. Pcicing shall t�e per Eal�il�it C attached. RF'P SQ30 . Page 17 of 20 Exhibit C CTTY OF DENTON RFP FOR ELECTRIC UTILTTY OGPW TRANSMISSION C�NDUCTOR CONFL.ICT OF INTEREST QUESTIONNAiRE FORM CIQ For vendor or other erson doin 6usiness �vith Iocai ove��nmental �ntit Tl�is questionnaire reflects changes made to the law by H:B. 1441, SOth Leg., Regular Session. OFFICE USE ONL.Y This questionnaire is being �led in accordance ivith cf�apter 1'16 af the Local Governinent Gade by a person Date Received who has a business relationship as defined by Section I76.001{I-a) with a locai governi�t�ntal efitity anri the person meets requirements �nder Seetion I76.006(a). By [aw this questionnaire fnust be fifed with the records administ��ator of the Iocal government entity not later than the 7th business day after t��e date the person beco�nes a�vare of facts that require the state�nent to be filed. S'ee Sec#ion 176.006, �,acal Govermnent Code. A pe��son com�ni€s an offe�se if tt�e person kno�vingly v�olates Section I76.006, Local Govem�nent Cade. An offense under this section ts a Class C�nisde�neanor. 1 ATame of persan who has a busiaess relationship with local goWernmental enfity. ❑ . 2 Cheek this 6ox if you are �ling an updafe to a previausly �led questionnaire. {The la�v €eG€�ires that you fi[e an updated completed questio�u�aire with the appropriate filing authoeity not fater than the 7�' business day after the date the originally filed questionnaire beconies incomplete or inaccurate.) • 3 Name af local governmeni officer with �uhom fi[er has an ernptoyment or business relationship. l�Iame of Of6cer l"his section, {ifem 3 including subparts A, B, C& d), must be complefed for each offic�r with whom the filer has an employment or ofher business relatianship asr1L�ed by Section �[76.a6�, Local Governmenf Code. Aftach additional pages fo this Form CIQ as necessary. LJ � y � A. Is fhe [oca] goverr�ment o�cer named in this section raceiving or likely io receive faxable income, other than invesiment inco►ne, #rom the fi�er of the quesiiannaire? � Yas �No 8. Is the fler of fhe questionnaire reeeiving or Iiltely io receive iaxabfe incame, ofher {han invesfinent income, fro[n or ai tF�e direcfion af the ]ocal governmenf offcer named in this section A[�D fhe faxable incame is not received frorr� ihe loca] gavernmentai entify? Yes No C. ls the file�is questionnaire empl y a corparaiion or other business entiiy wifh respect ta which the locaf governrrsent o(f€cer serves as an officer or director, or halds an awnership of 10 percent or rnore? Yes �a D. Describe each affliation or business refationship. �la� a��ic�t��e. � O� . O� �eY � o�T1?- Signature of person doing busin�ss wiih the governmental entity �ate . � . . �7��7�k3i� Exhibit D CITY Or D�I+tTOI�i RFP I'OR EI,TCTItTC U'�'IT�ITY OGPW TRAEVSMTSSION CONDUC'�`4R BUS��SS OV'�RVYE'V� QU.�ST�QNN�IlZE AND TORMS 1, Ca��Lacta� Na�3ie, �CC�1� ivt� , �ne , 2. Adc�ress (�'�•ix�cipal Place ofBusiness): ��-}�oi ��t►� S-�� aY� if�Fb�$�, �� 76�1� 3, Does Staur ca��pai�y ��ati�e ai� establislieci �laysical preseiice in tl�e State of T�xas, or fize Ci!}� c�f Ae��ion? '°�e� �. Ta� P€�yei• ID#; I ' � �' `° ��'b�� "� 2 5. E�i�ail Add�•�ss af P�•iix�a�� cont�ci: hG�v� `x °�'2c��2"i,�C . ramn G, V�Tebsite Ac�d�•ess: h�f��s'. i��,`�v ."�ec��l�1�. ��c .�ow�� 'i. Teie�lioile: $1 `� � � 6 f � "{°� o 0 8, Fax: `bl��561� `��o�. ��.s�EVti , �v�.�t1\o , 9, 4tl�er Locations: ��.��. � `-�� ] 0, 4rga��iz�ation Class; ��•tnership Ltcii��iclual / �;Ol'�301`c�fl�ll �! Asspciafion 11. Date Esta�Iishec�: �`� g� 12. �ax��tle�• B�isiness Na�ne: J�� 13. Date of Dissoh�fion; 1�� . �u�isi�ia��f a#' N�� o�t��1�41�, , t v�,�Sb'�4., %YC7�- �K ��'n ��4NEt7 � Vc�Y� L��ea 'P�oc�, �`�. i ��t�av��'t�, I5. Histo��icatl}'UI1C��i'€IIIII��f� BEiS�i1�S5: Y��o N� ��Q�e� �� , �o�, t��too�ie � �G, Pri�icipals a►3d Officers: I.e�� e� " ��d ��°Q ��n•i��1� -- �1� 13.��,�, SLaw��n�¢� �- coo �lease deta�l r�sponsibi�ities 1��i#l� the ��a«ie of each t{�rii� ipal o�� of�'icei•, � [��0��,�, [JaKY�rilq�1�, �Cf��SuY+4 t ��",da�e � apQ�a�lav�, �S(s�2svut� 17. Ke�=1'e�•sa��el and Res�oi�sibili#ies:'�1'`oc�e� ��Cto�Ni�Vti�� 1nt�,v�.��,, �aYc� ��;��p� `s�gv.��`i'� O��Y0.'��]( `o�ts�� i �Ep" �t � � � �?��1bev�.'. CJ•'�`T �`o�C 'l��ti1�4� 'r�r�Y Please aet�il ��es�nj�sibilities ��i#�� t��e ��a��e ofe�cl� ke�� ersoi�iel, �r,n{{1�•. �.'Yx, �v. e�t, r NM r 1=5 "�e+�`tt� 1�wwr.�.��r RFP 5630 PAGE �1 OE' t2FP #�430 Page 18 of 2Q CITY OI� J3�I�TQi�T R�+'P 1+�R �L�CTRIC UTIL,ITY UGP1V ZItANSMISSION CONDUCTOR I S. Nu��ibez• af Pecso��nel �y Disci�line: Disci��iine � 10 Ntit��ber of Siai� �# Registered 19. �-�as 3�oi�r company fited o�• bee�i �f��i�ed in any litigatio�i i�ival��i��g ��o��• eo��pa��3� a��d tlie �«�iie�• o�� a contrac� «<i#l�iu tiie last iil�e yea�•s �►ade�� y�our curi�e�� coii�pa��y ita�i�e or an�= otl�er co�i�pany i�a��e'? If so provide details af tl�e issues a�id �•esol�atio�i if a�r�ila�Ie. Iiiclude lati��st�its «rlie��e Oru�ie�' 1VaS IEIZ'0�1'�C�. �1�� 2a. �'lease p�•o�lid e at least (3) tf�•Ee referenees {�ir�efer•ubly t1tt��rciprtliticsj a��d co��ti•act a�l�aui�ts, Incluci� �n•oj�ct descripiioii, coztt�ct xian�es, posiiiau, and orga��izatioi� �1ai��s ai�d telepl�ozie ��z�n�ber �'o�� aacil reFerence listed. See Attacl��ie��t �'. 2[. Haj�e �jo�t e��er c�ef�ulted on �� iailed [o con�pleie a cantcact unde� }�ou�' Cl�Yi��t co��l��i�� ia��e o�� a►3y otlie�� coii��any� ��a3ne? If so, ��tliere and j��li3,? Gi��e na»ie a�fd �elepl�ane �i��e�� of ��ti��ie�•. �1 �� 22. Hajre ��o�a e��er l�ad a co��li�ac� t�j�inii�ated l�s� ttze 4ti;Tne�? I�so, e��l�ere at�c� ��rh�,? Gi�re na�iie a�id �cleplio�fe iva�aiber (s} of Oi�F��er (s). N��. 23. Has 3�ouz� co��pany i�uple�nciited au �jnpia}�ee I-lealth �nd S�fet�� 1'�•agr��n eomplia�st ��ith 29 C;FR 1910 "Geiaez•aI It�c3��stcy� Sl��rctards" ai�c�lor 29 CFR 1926 "Gei�ei•al Co��st�'1lC�fOi1 Stauc��eds" �s tlxe}' �pI31y to ��OZ11' C41Yl�c'�tl3T's citstoj�iary acti�=ities? l�tt��;//�i�3��=.oslia.Qatr/plslosl�ari7�bla�c�=asi•cl�►,seareli foi�n�7}� clac type=�T ��DARDS& toe fevel=lcX, � f�e ��ali�e=1926 RFP 5fl30 PAGE �2 OF RFP �� .riQ30 page 39 of 2Q � m � m N G O N 6 �Xf1It%�t � RCSponder.t's Name: TECHIJNE, If�C. Ft�P 5030 - Pricing Sheet forSUPPLYOF C3PGW 7RAIV5M[55EON CONDIICiOit AND AGCE550R1ES Thcrr.porr6em:ha!lwmplczc:hcfollowingscctlon,whit,AClrecilycorre;pandstathespedfkrrtlnrr Thecanrraaorshallrro:mckrcha�gcseorhk;o�maG � ��srnia+unL�tJpM Prod�sttDescriptian I 1.Snit7ricC �ndedPrice EsrleeratodDCllvcry aw (EsxAanual} aRO(wceks) Condottot {AFL DN(�8I.58 ONLI� -WOOD REELS Tt07"�: M�nimum Manufar.tyrrng qty � g,340f� OPGw TolCronae -061e, +2% PaymerstTerm �r$cwrr�,s ?aymenc tcrM: ior che q,y of �enwn are typ�calh�30 day:. FFecse ind4eate :ho add�tWnsl d7�courtt excended t�o each mortthly Ir.voice [ha:ls paid w;thtn the tlme period lndlc�ed below, .. .. . . . � _ .:ti 'ii V i- i i i r . . .. _. . .. . y � , t �:s i y'i � . �a i>. a �i�'N 11Pa enf!Tenns ,,.,,i- �.�... -1 =i, ..;r�� x_,��.,7�;AcfdltJOnal:Discodi�4�k ,..i,,...,1.:�,�.�.� i� i,�.� n��-�a., O.OQ°1 O.RO % Invoic@ pofd in � 0 0.00°k 'Atl pricingshaSi Inctudc ail costs to shi� prodvtt as spctlfi¢d FO6 nestina;ion ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF FIBER OPTICAL GROLJND WIRE (OPGW) FOR DENTON M[_JNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FLJNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5030-SUPPLY OF ELECTRIC UTILITY OPGW TRANSMISSION CONDUCTOR AWARDED TO TECHL,INE, INC. 1N THE NOT TO EXCEED AMOUNT OF $630,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of electric utility fiber optic ground wire (OPGW) for Denton Municipal Electric in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP N [_JIVIBER CONTRACTOR AMOUNT 5030 Techline, Inc. $630,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or pernutted to be performed by the City of Denton under the RFP 5030 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNg'ER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ____ ��'"��---.� --�� BY: 4-ORD-RFP �030 tl�tl11111,"�tl;"IIIIu �'"h�,�',tl"II'lltl.�.,q 4�u AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Phil Williams at 349-8487 ACM: Bryan Langley „�..��.. SUBJECT Consider adoption of an Ordinance accepting competitive proposals and awarding a contract for the purchase of 691cV and 1381cV substation switches for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5071-Supply of Electric Utility 691cV and 1381cV Substation Switches awarded to Southern States, LLC in the not to exceed amount of $5,850,000). The Public Utilities Board recommends approval (6-0). RFP INFORMATION Denton Municipal Electric (DME) has substation projects approved in its Five-year Capital Improvement Plan that will require the installation of 1381cV switches. Substation switches are installed to make it possible to isolate transmission lines, substation busses and equipment for repairs and maintenance. All new substations will be constnicted to operate at 1381cV whether located on the 1381cV portion of the transmission system or on the 69KV portion. Use of the 138kV voltage level is in anticipation of conversion of the 69kV system to 138kV near the end of the Capital Improvement Plan period. Consequently, the maj ority of the switches purchased will be 138kV. 69kV switches were included in the request for proposals to provide a source for replacements in the event of failures at existing 691cV stations. The space available in existing 69kV stations will not allow installation of 138kV switches. Quantities used in the evaluation are reflective of this plan. Orders will be placed based upon project needs. Request for proposals were sent to 237 prospective suppliers, including two Denton firms. In addition, specifications were placed on the Purchasing website for prospective suppliers to download. Five proposals were received. Proposals were evaluated based upon published criteria, including price, delivery and probable performance by the supplier. Southern States' proposal provided the highest evaluated score, resulting in the best value for the City. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 12, 2012, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve a one year contract, with four renewals, with Southern States, LLC in the not to exceed amount of $5,850,000 over the potential contract term. Agenda Information Sheet December 4, 2012 Page 2 PRINCIPAL PLACE OF BUSINESS Southern States, LLC Hampton, GA ESTIMATED SCHEDULE OF PROJECT The initial term of this contract is for one year ending December 4, 2013. The City and Southern States, LLC shall have the option to renew this contract for four (4) additional one year periods. FISCAL INFORMATION The cost for material purchased under the proposed agreement will be funded from project accounts on an as needed basis. The worlc proposed will be in the transnussion category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission Transmission Cost of Service Program (TCOS). EXHIBITS Exhibit 1: Evaluation/Ranlcing sheet Exhibit 2: Draft Public Utilities Board Minutes Exhibit 3: Contract Respectfully submitted: � �� Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1 =AIS-File 5071 E�ibit 1 Pricing and Evaluation for RFP 5071 Supply of Electric Utility 69kV and 138kV Substation Switches November 12, 2012 Keas er Sa es, LLC A ternate PI'OpOS¢d PY1Clllg(FOB DESTINATION): KeaslerSales, LLC Proposal PascorAtlantic) Southern States/Preferred Sales PASCOR PascorAtlantic EST. Estimated Estimated Estimated Estimated Esdmated Delivery Delivery Delivery Delivery Delivery ITEM # ANNUAL UOM Type of Product Requested Unit Price Extended Price �eeks Unit Price Extended Price ��kg Unit Price Extended Price �eeks Unit Price Extended Price ��kg Unit Price Extended Price �eeks QTY � ARO) ARO) ARO) ARO) ARO) 1 1 EA 69kV, 1200 Amp, Vertical Break $ 9,755 $ 9,755 16 $ 9,754 $ 9,754 16 $ 9,216 $ 9,216 14 $ 8,640 $ 8,640 20 $ 9,237 $ 9,237 16 2 1 EA 69kV,2000Amp,VerticalBreak $ 9,755 $ 9,755 16 $ 1Q567 $ 1Q567 16 $ 9,216 $ 9,216 14 $ 1Q184 $ 1Q184 20 $ 1Q007 $ 1Q007 16 3 1 EA 69kV,3000Amp,VerticalBreak $ 1Q568 $ 1Q568 16 $ 26,879 $ 26,879 16 $ 1Q161 $ 1Q161 14 $ 11,195 $ 11,195 20 $ 25,454 $ 25,454 16 4 1 EA 69kV, 2000 Amp, Interrupter $ 26,880 $ 26,880 16 $ 25,292 $ 25,292 16 $ 18,824 $ 18,824 14 $ - $ 23,951 $ 23,951 5 3 EA 69kV, Hookstick Power Fhse $ 2,996 $ 8,988 10 $ - $ -$ - 6 6 EA 69kV, Fuse Kit, 10 Amp $ 150 $ 900 6 $ - $ -$ - 7 3 EA 69kV, Hookstick Blade Disconnect 2000 Amp 16 $ 1,845 $ 5,535 16 $ 1,694 $ 5,082 12 $ - $ 1,747 $ 5,241 16 8 8 EA 138kV, 1200 Amp, Vertical Break $ 11,575 $ 92,600 16 $ 11,575 $ 92,600 16 $ 10,798 $ 86,384 14 $ 11,182 $ 89,456 20 $ 1Q961 $ 87,688 16 9 3 EA 138kV, 2000 Amp, Vertical Break $ 11,575 $ 34,725 16 $ 12,433 $ 37,299 16 $ 10,798 $ 32,394 14 $ 12,821 $ 38,463 20 $ 11,774 $ 35,322 16 10 51 EA 138kV, 3000 Amp, Vertical Break $ 12,433 $ 634,083 16 $ 29,071 $ 1,482,621 16 $ 11,606 $ 591,906 14 $ 13,756 $ 701,556 20 $ 27,529 $ 1,403,979 16 11 8 EA 138kV, 2000 Amp, Interrupter $ 41,830 $ 334,640 16 $ 42,689 $ 341,512 16 $ 2Q870 $ 166,960 14 $ - $ 4Q425 $ 323,400 12 3 EA 138kV, Hookstick Power Fhse $ 8,125 $ 24,375 12 $ - $ -$ - 13 6 EA 138kV, Fuse Kit 10 Amp $ 310 $ 1,860 6 $ - $ -$ - 14 3 EA 138kV, Hookstick Blade Disconnect 2000 Amp $ 5,422 $ 16,266 14 $ - $ -$ - 15 4 EA Ground Switch for Installation on Vertical Break Switch $ 6,646 $ 26,584 16 $ 6,646 $ 26,584 16 $ 9,926 $ 39,704 14 $ 2,330 $ 9,320 20 $ 6,294 $ 25,176 16 15A 4 EA Altemate Ground Switch offered by Southem States for Line 15 $ 4,995 $ 19,980 14 16 4 EA Mecharucal Operator Interlock for Ground Switch $ 603 $ 2,412 16 $ 603 $ 2,412 16 $ 494 $ 1,976 14 $ 90 $ 360 20 $ 571 $ 2,284 16 17 8 EA MotorOperator $ 3,560 $ 28,480 16 $ 3,560 $ 28,480 16 $ 3,516 $ 28,128 14 $ 4,880 $ 39,040 20 $ 3,371 $ 26,968 16 18 51 EA Manual Crank Operator $ 800 $ 4Q800 16 $ 800 $ 4Q800 16 $ 667 $ 34,017 14 $ 760 $ 38,760 20 $ 758 $ 38,658 16 19 3 EA Manual Swing Handle Operator $ 200 $ 600 16 $ 200 $ 600 16 $ 250 $ 750 14 $ 266 $ 798 20 $ 189 $ 567 16 20 60 EA Auxiliazy Switch for Indicating GOAB Switch Position, 4 pole $ 365 $ 21,900 16 $ 365 $ 21,900 16 $ 295 $ 17,700 14 $ 294 $ 17,640 20 $ 346 $ 20,760 16 20A 60 EA Altemate AwYiliary Switc}i, 2 pole $ 250 $ 15,000 15 Total Estimated Annual Cost of Switches, Interrupters, and Operators (all items listed in the g 1,273,782 16 $ 2,152,835 16 $ 1,1OQ083 14 $ 965,412 20 $ 2,038,692 16 response) Total Estimated 5 YR Cost of Switches, Interrupters, and Operators (no escalation) $ 6,368,910 $ 10,764,175 $ S,SOQ415 $ 4,827,060 $ 1Q193,460 Evaluation Cost (based on line items that all vendors proposed) $ 1,273,782 $ 2,147,300 $ 1,027,612 $ 1,312,763 $ 2,033,451 Estimated Five Year Cost, Selected Vendor (3% escalation in years 2 through 4; included all line items except Line 1� $ 5,840,490 => Round to $5,850,000 EVALUATION 10 Probable Performance 10.00 10.00 10.00 10.00 10.00 15 Delivery 13.13 13.13 15.00 10.50 13.13 75 Cost 60.51 35.89 75.00 5891 37.90 TOTAL EVALUATED SCORE 83.63 59.02 100.00 7921 61.03 Additional Additional Additional Additional Additional Payment Terms Discount % Discount % Discount % Discount % Discount % Invoice Paid in 20 days 0% 0% 025 % 0.00 % 0.00 % Invoice Paid in 15 days 0% 0% 025 % 0.00 % 0.00 % Invoice Paid in 10 days 0% 0% 025 % 0.00 % 0.00 % 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 DRAFT MINUTES PUBLIC UTILITIES BOARD November 12, 2012 After deternuning that a quonim of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, November 12, 2012 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Absent: Chairman Dicic Smith, Vice Chair Billy Cheelc, Randy Robinson, Barbara Russell, Leonard Herring and Li1ia Bynum Phi1 Gallivan (absent) Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: CONSENT AGENDA: 1. Consider recommending approval of a contract with Southern States, LLC for the purchase of 1381cV and 691cV substation switches (RFP #5071- awarded to Southern States, LLC, in an amount not to exceed $5,850,000). A motion to approve item 1 was made by Board Member Cheek with a second by Board Member Herring. The vote was 6-0. Adj ournment 9: 53 am Exhibit 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND SOUTHERN STATES, LLC {RFP 5071) THIS CONTRACT is �nade and ente�ed inta this day of A.D., 20 , by and betwee�� Souti�ern States LLC a corpocatio�i, w�ose address is 30 Gear�ia Ave, Hampton, GA 30228, hereiz�afte�• x•efe�•red to as "Supplier," and the CITY OF DENTON, TEXAS, a home iul� mur�icipai corpo�•ation, hereinafter referred to as "City," to be effective upoi� approval of the De��ton City Cour�cil and subsequent execution of this Cant�•act by the Denton Ciry Manager or his duly autliorizecE designee, For and i�� consideration of the covenants and ag�•eements contained �ierein, and for the rnutuaI bex�e�ts to be a6tai�ied hereby, tl�e parties agi-ee as follo��vs: �COP� OF SERVICES Supplier shal� provide products in accordance with the City'S RFP � SO�I- St1Up�y O� Electric Utilitv b9kV azxd 138kV Substation Switches, a copy pf ��hic� is o�i fite at tlie ofiice of pucchasing Agent and incoiporated 3�erein for all purposes, 'The Cant�•act consists of this w�itten agreement and the following i#ems which are attached hereto, or on file, ai�d ii�corpo�•aied lierein by reFerence: (a} Special Terms and Conditions (�xhibit "A") (b) City af Dentoi�'s RFP 5071 (o� file at fhe office of #he Purchasing Agent} (c) Standard Terms and Conditioi�s (Exhibit `B") (d} Supplier's ProposaL (Ex�iUit "C"); Tiiese documents make �p the Contract docurnents and what is called for l�y one shall be as binding as if called for by alI. In the e�e�rt of an inconsistency or eonflict in any of ihe provisions of the Contraet documents, t�e inconsistency or conflict shall be resolved by gi�ing precedence first to t�xe w�•itten agree�nent tt�en to tl�e contract docutnents in tl�e o�•der i� whieh tl�ey a�•� lisied above. TlZese doeuments shall be �•efer�•ed to collectively as "Contract Docume�its." RFP 5071 Page 1 of 22 IN WITNESS WHEREOF, the parties of tliese presents liave executed tl�is agreelnei�t in tl�e year and day �rst above �rrit�en. ATTEST: JENNIFER WALTERS, CITY SECRETAItY � APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY AT7'4RNEY : SUPPLIER BY: G""�"'t' �Gr.c� AUTHORIZED SIGNATURE D�t�: 1//r �/i�. Na�ne: �v� � � � ��- Tit�e: /•�(�-� c. � c .� c�,.e � ,S�tI�N-�t�,.�-� ��=�-�� L� c. � � � � d — `j `-�-C — t f-� 6 �. PH4NE NUMBER -� 7 0�— `l zt-� __ g 1�> _� FAX NUMBER CITY OF D�NTON, TEXAS BY: GEORG� C. CAMPB�LL, CITY MANAGER Date: RFP 5071 �'age 2 af 22 Exhibit A Special Ter�ns and Conditions Co��tract Terms The cont�•act term vvill be o�e {1) year, effective fi•om ciate of awa�•d. T��e City and the Awa�•ded Supplier shall have the option to rei�ew this contract for a�i additiotial four {4) one-year pe�•iods. The Cantract shali commence upon the issuance of a Natice of Awa�•d by tlie City of Det�to�i a�1d shall autQmaticaliy renew each year, from the date of award by City Cou�icil, ttnless eitlie�' pat-�y noti�es the other p��ior to the scheduled renewal date. At the sole option of the City of Denio�f, the Contract �nay be fui�ther extended as needed, not to exceed a totai of six (6) mo�iths. Price Adjust�nents Prices are �rrr► fo�• a pe�•iod af one yea�• fio�n date of cor�tz•act award. The price adjustiment �rtust be based o�i the, U.S Department of Labar, Bureau of Labor Statistics, Producer Price Index (PP� Switchgear and switel�board appa�'atus mfg (PCU3353 � 3335313) as found at {http:1/«�w.bfs.�OVIIlUII}1Q171�.�t�n). The price ��i11 be increased o�• decreased based upon tlie arui�aal percentage cl�ange in the PPI. The escalation ��ill be determined at�n�zally i�i Decembez•. Should the PPI chai�ge exceed a mii�imum ihresliold value of +!-1%, then the stated eligible prices shall be adjUSted in aceardance with the PPI change. Coanperati<<e Purchasing/ Pi��yback 4ption This section v�riIl i�ot apply as stated i�� the o�•iginal RFP document Section 1, Item 11. Other govei•nmental agencies vvill not be allo��ved to �iggy back the contract agre�rnent �n place witli the Supplie�•. Price Discouaat Supplier will offer a I/ % discount for ir�voiees paid in Iess than 20 days. Toial Contr�cf Amount The contact total for services shall be per Exhibit C aitached. sl�all �aot exceed $5,850,000 for tl�e tatal contract term. Ptieing RFP 5071 Page 3 of 22 EXn�bir B City of Denton Sta�adard Purchase Terms and Condi�ions These standard Ter�ns a��d Conditions and the Terins and Conditioiis, Specifications, Dra�vings and other requireinents included in the City of Denton's so�icitatian are applicable to ContE'acts/Purclfase 4rders issued by the City of Denton hereinafter �•eferred to as tl�e City or Buyer and flfe Seller liereizj after referred to as the Bidde��, Contractor ar Suppliet'. A��y deviatioifs inust be in tivriting and signed by a representative of the City's Pracurement Departznent and the Sup�lier, No Terms and Conditions conta�ned in the Sellers Proposal �•espottse, Invoice or Staieinent sl�ali serve to inodify the terms set forth Iiereiu. If there is a eonflict between the pravisions o�� the iace of the ContractlPurchase Order tl�ese �vriiten pro�isions wali take precedezice. By subt�nitfing an Offer in response to the Solieitaiio�, the Contt�actor agrees that tl�e Contract s3aall be governed by the following ternis and conditions, unless exceptians are duly noted and fiiliy negotiated. Ui��ess ot�ierwise specified i�� the Contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 3G shall apply only ta a Solicitatio�� to purchase Goods, a�id Seeiions 4, 10, I1 and 22 shail apply only to a Solicitation ta pu�•e3iase Ser�ices to be perfori�ied principally at the City's prexnises or otx public rights-of-way. 1. CONTRAC'X'�R'S OBLIGATI4NS. The Confractor shall �'ully and timely provide all deliverables described iu the Solicitation and in the Contraetor's Offer in sirict aceordance with the tern�s, covenants, and conditions of tlie Contract and all appiicable Federal, 5ta#e, and local laws, rules, and reg��latio�is. 2. EFTECTIVE DATEfTERM. Unless otherwise speeified in tlie Solicitation, Ehis Cant�•aet sha91 be ef�ective as af the date tl�e contract is signed by tlie City, and sliafl co��tinue in effect �mtil all obligations are perforn�ed in accordance wit1� t�e Contract. 3. CONTRACTOR TO PACKAG� D��ZV�RABLES: T�ie Contractor will package cfelivera�les i�i accordance ��ith good con�mercia( practiee and sliall include a packing list sitowing tl�e description of eac�i item, the c�uantity and unit price u�iless otlier+vise pro�ided in the Specificat�ons or Supplemei�tal Terms and Conditians, each shipping container shall be cleady and pernianently a��arfced as fol�aws: (a) Tiie Co��tractor's name ai�d address, (b) tl�e City's name, address and purciiase order or purchase release i�ui��ber and the price agree�nent niirn6er if ap�lieable, (e) Container number and total m�mber of containers, e.g. boa 1 of 4 boxes, and (d) the number of t�ie container bearing tE�e packii�g list. The Contractor shall be�r cost of packaging. Deii�erabies sl�all 6e suitably packed to secure �o�vest tra��sportation casts and to conform to al) the reqt�irements of co�nmon carriers and any applicable speci�eation. 'I'he City's count or weight shalt be �na) and conclusive on shipments not accompanied by packing fists. 4. SHI�M�:�fT UND�R RES�RVATION PROHIBITED: The Contractor is not autliorized to sl�ip the deliverabies i��ider reservatio�i aud no tender of a bill of lading �vill operate as a tender of deliverables. 5. TITLE & RiSK O�' I.OSS: 'I'itle to and risk of loss of the defi�erables shall pass to the City onty wheit the City actually receives a�id accspts the deliverabfes. G. DELIVERY T�RMS AND TRANS�OR`i'ATI4N CHARGES: Deliverables shall [�e shi�ped F.O.B. point of delivery u�i[ess otlier�vise s�ecified in the Suppleine��tal Tenns a��d Conditioi�s. Unless othenuise stated in tlie Ofi'er, the Contrackor's price sI�aII be deei��e� to include aI) deiivery a�id tra�isportation eharges. Tlie City shall l�ave tlae right io desigi�ate what �i�etE�od of txanspattaiion shall be used to ship the deiiverables. The �lace of delivery shall be that set farth the purcl�ase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rig]its under law, including, but 3iot lianited to the UE�iform Commercial Code, to inspeet i�e deliverables at delivery before accepting thetn, and to rejecc defective or non-confoi-��ting deliverables. If tlie City has the right to ins��ect tE�e CoTStractor's, or the Contractor's S�bco��tractor's, faeilities, ar the deliverables at fhe Co�itracfor's, or the Contractar's Subco�itractor's, pre�nises, tE�e Contractor shall furnish, or cause to be furnislied, wi[hot�t additionaf cE�arge, �ll reasanable faeilities aE�d assistaaice to the City to facilitate sucl� inspeclion. RFP 5071 Page 4 of 22 8. NO REPLACEMENT' OF DEFECTIVE TENDER: Every tender or deiivery of deli�erables must fully eomply «=ith all provisions of the Contract as to time of delivery, quality, a�d q�antity. Any noi�-complying tender shall constitute a breach a��d the Confractor shali not have the right to substitute a confonning tender; provided, �vhere tf►e ti�ne for }�erformance has �iot yet eapired, ihe Contractor may notify the Cify of the i�xte3xtion ta cure and may then �nake a confor�ning tender �vithin tlie tiane allotted in the contract. 9. PLAC� ANA CONDTTIQN OF �'VORK; The City s1�aE1 prov9cfe the Conlractor access to the sites �vhere the Contracior is to per%r�n the services as required in order for tlie Contractor to perform the set��ices in a ti�nely a�id efficient ma�tner, i� sccordance ��ith and subject fo the applicable security laws, rules, and regulatioiis. Tk�e Contractor ackno�vledges t}kak it has satisfied itself as lo tlie nature of the City's service requiremer�ts and apecifcations, the ioe�tioti artd essential characterisiics of the work sites, t}�e quality a�id €�uaiztity of �naferials, equip�nent, labor a�id faciiities necessary to perform tlie services, and any other condiTion or sEate of fact which co�ld in any way affect performance of the Contraetor's obligaTions iinder tl�e contE•act. The Contractor hereby releases and l�olds the Ciiy ltar��less from a��d against any liability or c�aim far daEnages of any �Cind or nah�re if #ne actuai site or service coi�ditions differ fram expected conditions. 10. �'4'ORI{TORCE tl. Tlie Cof�tractor shall e�nploy only orderly �nd campetent workers, skilled in tlie performance of fhe sen�ices which they will perform under the Contract. B. The Contraetor, its employees, subevniractors, aiid subcontraetor's emp3oyees �i�ay not wl�ile engaged in participat.ing or respo�iding Eo a salicitatio�� ar while in the course and seope of delivering goods or services under a City of Denton confract or on the City's pro�erty . i. use or possess a firearm, including a concealed handgun tliat is lice��sed under state law, except as requireci by the terms of tiie contract; or ii. use or possess alcoholic or otlier intoaieating beverages, iltegai drugs or control[ed s�ibstances, nor may s�ch workers be i��to�icated, o�• under the i��fluence of aleohol or drugs, on the job. C. If the City or the City's representative notifies #he Contractor ihai aE�y �varker is incoinpetent, disarderly or disobedie�it, has kno�vingly ar repeatedly violaked safery regutations, has possessed any frearms, or has passessed ar �vas utider tlie influe�ice of a[eohol or drugs on tlie �ob, the Contractor shall immediate[y ren�ove sucli �vorker from Contract serviees, a►;d �nay �iot employ such ��orker again o�i Contract services without the City`s �rior writie�t consent. Immigration: The Co�itractor represe�iis �nd �i��rrants that it shall co��pl}' with the reqE�ire��zents of fhe I��i�►igration Refor�n and Controi Act of 1986 and 199fl regarding empioyment verification and rete�ation of verification forms for aj�y i�idividuals liired an or after November 6, 1986, w3io tvill perforii� any labor or services �nder ti�e Co�itract and the Iliegal Immigratioj� Refonn and I�nmigE•a��l Respoi�sibility Aet of 1996 {"IIRII2.A) enacted on September 30, 199G. 11. COMPLIANCE VV1TH HEALTH, SAFETY, AND ENVIRONMENTAL REGULA't'ZONS: The Cantractor, it's Subeantractars, and tl�eir respec#ive e�t�ployees, shaEl comply fully �vitli all applicable feder�l, state, and foeal health, safety, and eE�vironmenta) la�ys, ordinances, r�iles a��d regulaiions in ihe perfor►iza�ice of the services, inciuding b�t nat Iimited ta those promulgated by the City a��d by the Occupational Safety and Hea�tli Ad��i�iistration (OSHA}. in case of couflict, tlie �nost siringent safety requirenieait shall govem. The Co�3iractor shail indemnify aE3d ltold the Ciiy hannless £rom and agai��st afl clai�ns, deinands, s�its, actions, judgrnents, fines, penalties and liability of every kiud arising from #he breach ofthe Contractor's ohligations u�ider this paragraph. Ei�viro►��ne�ital Protectiai�: The Respoi�dent shall be in compliance ��ith aEl applicable stanciards, arders, or regulations issuecf p�rsuant to ilie mandates of t13e Clean Air Act (42 U.S.C. �740I et seq.} and tt►e Federaf Water Pol[ution ControE Act, as amended, (33 U.�.C. 51251 et seq.). 12. INVOICES: A. Tl�e Confraetor shall s�i�mit separate in�oices in dupiieate on eacli purchase ozder or purchase release af�er each delivery. Tfpartial ship�neE3ts or deliveries are autf�arized by the City, a separate invoice mt�st be sent for e�cl� sliipment or delivery made. B, Proper Invoices must i�icl�de � unique invoice ni�mber, the pu�•chase order ar delivery orcler �umber and the masfer agreemenf num�iei• if applicable, the Department's Name, and the name of the point of confacf for fhe Department. I��oices sliall be iteinized and iransportation RFP 5071 Page 5 of 22 charges, if any, sl�a[1 be listed separateiy. A copy of the bill of lading and the freigltt �vaybill, when applicable, shall be attaclied to tlie iii�oice. �'he Co��tractor's name, remittance address and, if applicable, the tax idenii�cation number on the i��voice must e�actly �nateh tE�e infarmaiion in the Vendor's registrativn v��iih thc City. Unless otlier�nise instruc#ed in wri#ing, tE�e Ciry m�y rely nn tlie ren�i�tance address specified on ihe Coirtractor's i��oice. C. Invoices for labor shall i��clude a copy of ali time-sheets �vltl� irade labor rate and deliverabies order numher cleariy identified. I��voices shall also include a tabulaiion of ��ork-i3ours at the appropriate rates and gro�ped by work order num�er. Time bilied for labar sl�all be li�nited to hours actually �vorked at tiie �vork site. D. Unless other�vise expressly avthorized in the Co�stract, the Co�traetor sliall pass through all Subcazttraet a��d other authorized expenses at actual cost �viE��out marku�. E. Federal e�cise taxes, Staie taxes, or City sales taxes must nat be incEiided in the i��voiced amouut. The City �vill furnisl� a tax exe�7fption certi�ieate upo�� rec�uest. 13. PAYMEIVT: A. All praper invaices need tv be sent ta Accounts �ayable. Approved i�ivaiees will t�e �aid within thirty (30) calendar days of the City's receipf of the deli�erables or of the i�ivoice being received in Accou�its Payable, whicliever is later. B. Ii payment is nat fi�nely niade, (pe►• paragrapli A); i��terest shall accrue on the unpaid balance at the tesser of the rate specificd in Texas Government Co�e Section 225iA25 or the �ttaximu�n l�wful rate; sxcept, if payn�ent is not timely znade for � i•easoa� for which t��e City may withhold payinent l�ereu��rier, interest shall not accr�e unfil ten (IO) cale�idar days after thc grounds %r witl�ho�ding p�yment l�ave been resolved. C. If �artial sl�ipn�ents or deliveries are authorized by fhe City, the Cantraetor tivill be paid for the partiai sl�ip��3e��t or deliveiy, as stated above, provided that tlie invoiee ��atches fhe s1�iJ�ment ar delivery. D, The City may ��ithliold or set offll�e entire �a}�nte�it or part of any payrnent ot}�envise due tlie Contractor to se�clt exte��t as �nay be necessary on accau�rt of: i. delivery of defective or non-conforming deliverables by the Co�itractor; ii. third party claims, ��liicl� are ��ot covered by tl�e insurance which the Co��tractor is reqitired to pro�+ide, are fIed or reaso��able e�ide��ce indicati��g prabab]e filing of sucli clai�ns; iii. failure of the Co��tracior to pay Subcontractors, or for labor, materials or eGuipn3ent; iv. dai�3age to the property of fhe City ae the City's agents, empIayees or coi�tractors, �vhicl� is not coveced by insurance required to be provided by tlie Concractor; v, reasonabie evidence lhat tlie Contractor's obligations ivill not be completed wiihi�i tlie time specified i3� tlie Contract, and that the unpaid balance would pot be adeq�ate to cover actual or liq�idated dantages for the anticipated delay; vi. failure of tiie Co�iiractor to submit proper invoices wilh pvrcl�ase order number, �vith all required attach��ents and supporting documez�tation; or vii. failua•e of t�e Contractor to eomply ��ith a�ry material provisia�i of the Co��traet Documenis. E. Notice is hereby given thaT any awarded firm wlio is in arrears to the City of Denton far delinq�ent ta�es, tt�e Gity may offset indebtedness owed ttie City fliro�gh pay�ne��t withl�olding. F, Payment will �e made by clieck t�nless the paE�ties �nutualEy agree to paymetit hy credit card or electronie transfer of funds. The Co��tractor agrees tl�at there shatl be no additio��al charges, surcharges, or pei�alties to ttae Ctty far payments made by credit card or electronic fi�nds tra�isfer. G. The awarding or conti��uation of tl�is eo3�tract is dependent upon tl�e availability of fiuiding. The City's pay�nent o�ligations aee payable only and soleiy frorn fi�nds Apprapriated and available for this co�rtract. The absence af Appropriated or otlier la�vfulty available funds s�a[1 render the Go�itract null and void to tlie axte�it funds are not Appropriated or available aizd any deliverables delivcred but unpaid sliall 6e returned io il�e Contractor. '1'lie City shall pravicfe the Coniractar �vritten notice of the failure of the City io make an adequate Appropriaiion for a�iy fiscal year fo pay the aroounts due t�nder The Cantract, or the reduetion of a�iy Appropriatio�� fo a3i auiauni insuffieient to per��zit tl�e City fo pay its obligations uiider t�ie Cnntract. In tlie event of i�one or inacfequate appropriatio�� of funds, tl�eE•e wI![ be no penalty nor re��foval fees charged to the City. } 4. TItAV�.L EXP�NSES: All travel, lodging a��d per die�r� expe��ses in contzeciiof� �vith the Contract sliall be paid by the Contractor, unless otiierevise stated i�� ihe contract terms. 15. �X�AL �AYMENT AND CI,�SE-OUT: RFP SO'71 Page 6 of 22 A. If a D]3E/MBEI�VBE Progra�n Pl�n is agreed to and tlze Contractor has ide��tified Subcantrac#ors, tlie Con#ractor is required to s€�bmit a Coutract Close-Out MBE/WBE Complia�ice Repo��t to fhe �urcl�asing Manager no i�ter thaa� tlie 15tt� calendar day after completion oi all wor�C u�tder the contraet. Final payment, retainage, or both may be �vitl�held ifthe Contractor is nat in cautpliance tivifh the requirements as accepted by the City. B. The making a�id accepiance of final pay��ient wili constitute; i. a waiver of all elaims by tlie City agai��st the Contracior, except claims (1) whic� have been previously asserted in writing and not yet setTled, (2} arisi��g from defec#ive work appearing after final ii�spectio��, {3) arising �rom failure of the Co3tfractor to comply �vith the Confract or fhe terms of any �varranty speeified herein, (�4) arising fxo�� the Contraetor's continuing ab3igatians ��nder the Co�itract, i��eluding but not limited to inde�nnity and rvarra��ty obligations, or (5) arisi��g under the CiEy's rigi�t to a��dit; and ii. a waiver of aIl claims by the Contz�actor againsk khe City other #han those previously asserfed ii� writing and noi yet seliled. �G. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated o�i the Offer includes the cost of any speeial tooling or special test eq�iiprnent fabricated or required by the Cantractor for the purpose of filling tl�is arder, such special tooli��g eqaipment a3id a�iy pracess sheets reiated thereto shali heco�iie the properEy of the Ciiy and sliall be ide3tti�ied by the Contractor as sue��. I7. RIGI�T TO AUDIT: A. The City shall have the right to audit and maka copies of tlie books, records and corriputatio��s periaining fo tE�e Coi�tract. TE�e Conlractor sltall retain suel� 600ks, records, doeuments and oti�er evidence pe�iaining to the Gontract �eriod and five years tE�ereafte�•, exce�t if an audit is in progress or audii #indings are yet u��resolved, in which case records shall be kept until all audit tasks are co3npleted aEid resoIved. Tl�ese books, records, docii�nents and otlier evidence sl�all be available, witliin ten (l�) business days of written rec�uest. �'u��ther, the Confractae shall also req[�ire ail Subcontractors, �naterial suppliers, anc� olEier payees to retain all books, records, doc�n�e3tts and other e�idence pertaining to the Co��tract, and to allow #l�e City si��ilar aceess to thvse doci��neE�ts. All books and recards will be rr�ade available �vithin a SO mile radius of the City of Denton. The cost of the audit �vill be borne �y the City unless the a�dit reveals an overpayinent of 1% or greater. If an overpayment of 1%or greater occ�rs, the reaso��able cost of the audit, includi�ig a�ry travei costs, ��usf be barne by tlie Contractor �vlzich must be payable within fi�e (5} busi��ess days of receipt of ai� invoice. I3. �ailure to eomply with tha pravisions af this section shall be a material breacii af tiie Contract and s1�aI1 constitute, in the Ciry's sole disc�-e#ion, grounds for termination thereo£ Each of the terms "books", "records", "dacu�nents" aud "other evide�iee", as used above, sliall �e construed to include c�rafts ai3d elecf�•onic files, even if such drafts ar electronie �les are si�bsequently i�sed to generate ar prepare a final printed docu�iient, 18. STJ�CONTRACI'ORS: A. If the Contractor identified Subcontractors in a DBEIMBEIWBE agreed to Plan, the Co��tractor shall camply with all requireuients approved by tlie City, The Contractor sliall not initially eniploy a�iy Subco��tracEor exeept as pro�ided in tlie Co�3traetor's Pla��. Tlie Contraetor sltall not s��bsti#ute any S��bcontractor identi�ed i� the Plan, unless #iie si�bstit��te has been accepted by the City in writi�ig. No accepta�ice by the City of any Subcontractar shall eonstitute a tvai�er of any rigl�ts or remedies af the City with respect to defeetive deliverables provided by a Subcontractor. If a Pla�i has been approved, ilie Caz�tractor is additionally rec�uired ta submit a monflily Subcontract Awards aiid Expenditures Repo��t to Ehe Procuremeni Manager, no later than the tenth calendar day oi each month. B. VVork perfa��med far the Contrae#or by a St�bcoz�tractar shall t�e pursuant to a lvritten contract l�etween the Contractor and Subeontractor. Tha tern�s of the sui�contract may not conflict with the terms oithe Cantract, a��d sl�alI eontai�; pravisio��s tliat: i. reqt�ire that all deliverables to be provided by tl�e SiEbeontractor be provided in strict accordance witli the provisio��s, s�ecifications and tern�s ofthe Cantract; ii. proliibit the Si�bcontractor from further subcontracti�ig any portion of the Contract �vithout tt�e prior rvritte�i eonse��t of the City a��d the Co��tractor. The City 3��ay requice, as a eondifion to such further si�bcontracting, that the Subcontractor post a payment bond in forn7, si�bsta�ce and arnount accepta��e to the City; iai. rec�uire Subcontractors to submit alf i��voices and applications for paymenks, inciuding any elaims for additional payments, damages or ntlierwise, to the Contractor in suf�ieie��t ti�ne to e��ble t;ie Contractor to include same �vit�� its i�rvoice or application for payn�ent to tl�e City in accardance wii�► the terms of the Co��traci, iv, require thaE all Subeoi3traetors obtau� and mai�itai��, tlaroughout tlie tenn of their eontraci, insurance in llie type and amounis speeified for ilie Contractor, �vitl� tl�e City being a nau�ed insured as its interest shall appear; and v, require tliat the Subeo��tractor indemnify and hold tlie City liarmless to the same extent �s the Contractor RF�' S071 Page '1 of 22 is required to indemnify the City. C. 'I'l�e Contractor sha[I be fu31y respoi�sible to tlie City for all acts a►id omissioiis of the Subcontr�ctors jiist as tha Contr�ctor is responsible for the Contractors o�v�� acis and oinissio��s. Nothing in fhe Co��tract snall creat� for the 6enefit of any such Sabcantractor any contract€�a1 relations}�ip bet�veen tl�e Ciry and a�ry sucli Subco��tractar, nar shali it create any obligatio�t on tlie part of the Ciry ta pay or io sea to the pay�nent of a��y mo�ieys due any such Subconfractor eacept as �nay othenvise be rec�uired �y la��. D. Tlie ContracEor sl�all pay eacli Subcoi�tracior its appropriate sliare of payments anade to tlia Co��tractor not later than ten {10) calendar days after receipt of payment from the City. 19. '4�'ARRANTY-PRICE: A. Tf�e Contractor �varrants tlie prices quoted in tlie Offer are no liighcr tl�an the Coutractor's current prices on orders by otl�ers for like deliverables u��der siEnilar ten��s of �urcl�ase. B. Tlie Cont.ractor certifies that tl�e prices in the Offer have been �n•ived at indepeE�de��tly ��ithout co��sultatio�i, eommt�nicakian, or agreement for tl�e purpose of restricting co�a�petitio��, as to a�ry matter relating fo such fees wiili a�iy other fir�n or �vitii any coinpetitar. C. In addition to any other remedy available, the City �nay deduct fi•om any amounEs owed Eo the Contractor, or otherwise recover, any amottnts paid for items in excess of the Co��traetor's current prices on orders by otliers for like deiiver�bles under simi3ar ternis of purchase. 20. WARitAN`I'Y —'I'1TL�: Tlie Contractor �varrants that it f�as gooc� and iiidefcasible title to all deIiverables fi�rnished �inder tlie Contraet, and that the delivera�les are free a�id c�ear of ail liens, elain�s, security iE�terests and e�3cumbranees. The Contractor sl�all iitden��iify a�id hold the Ciiy harn�less frorri and against all adverse fit[e clait��s to the deliverables. 21. '4VARRANTY — D�LIV�RA,BL�S: The Contractor warrai;ts a�id represents that all deli�erablcs so�d the City under tiie Corttract shall be free fro�n defects in desigi�, workrna�tship or �t�ani�faeture, and co��form in a!1 i��ateriaf respects to tl�e specificatioi�s, drawings, and descriptions i�� the Soficitation, to a�3y samples fi�rnislied by flie Coniractar, ta the ter��s, covenants and condiEians of tl;e Co��tract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless othen��ise stafed i�i the Solicitatio�i, the delivera�les shall be naw ar recycled merchandise, and not used or reconditioned. A. Reeycled delivera6les shall be clearly identi#ied as such. B. The Cot�kractor may not li�nit, exclude or disclai�n the foregoing �varranty or auy tivarranty implied by �aw; a��d any attempt to do so shall be witha��t farce or effect. C. Unless othen�ise speci�ed in the Contract, tl�e �yarranty �eriod shalt be at least o��e year froi�i the date af aeceptance of the deli�erables or fron� the date of acceptance of a�y replace�nent delivera6tes. If during the warranty period, one or more of fl�e abo�ve warranties are breached, ti�e Contraetor shall promptly upon receipt of demand eilher repair the no��-conforn�ing deliverables, or replace the nan-confvrming deliverables �vit1� ful]y confoz�ning deliverables, af tk�e City's option and a# uo addiTional cost to the City. A11 costs incidental to sucli repair or replace�uent, including but �iot Ii�niteci to, a�iy packaging and shippirtg costs shall be bome excl�sively by fkie Cant�•actar. The City shall endeavor to give the Contractor �vritten notiee of tlie breacl� of warra�ity withi�i tl�irty (30} calendar days of discovery of the breaeh of warra�ity, but failure io give timeIy notiee shalE not imp�ir the City's rights under this section. D. If tlie Cat�tractor is u��able or �3��wi19ing ta ��epair ar replace defective or �ta��-canforEning deliverables as rec�uired by tE�e City, the�� iEi addition to a��y other available reinedy, the City may reduce the quantity of deiiverables it may be reyt�ired fo purchase �mder lhe Co��tract fro��i the Coi�tracfor, and piirct�ase confor�ning de�iverables froin other sources. In such event, the Cojztractor sE�afl pay to the City upon cEemand tk�e increased cost, if any, inc��rred by Ehe City to proci�re sueh deliverab{es fro�n another source. E. If tlie Contractor is not thc manufacturer, aE�d the deliverables are covered by a separate n�aniifactu�•er's warranty, tl�e Cor�tractar shalI traj�sfer and assign such manufaeturer's t��arranty to ilie City. If %r any reasan the t�ianufaciurer's warranty ca�mot be fiEliy transferred to tE�e City, the Contracior shail assist ai�d coaperate with ilie City to tl�e fi�llest extent to anforee such �nanufaeturer's �varranty far the beE�e�t af tl�e City. 22. �'VARRANTY --- SERVICES: The Contractor warrants and represents that al! services to be provided the Gity under ilie Co�3tract �vill be fully a��d timely performer� in a gaod a��d 4vorkmanlike ma��ner if� accordanca with ge�ierally aecepted ind��stiy standards and practices, the tenns, co�tditio��s, and coveva�its o£ the Contract, a�id alI applicable Federal, State and local la��s, rules ar regulatio�is. A. Tl�e Contractor �itay not li�nit, exclude or disclaim the foregoing warranty or any �varranty in�plied by la�v, a�id RFP 5�71 Page 8 of 22 a�iy attempt to do so shall be �vilho�t force or effect. B. Untess othe�•wise specified in the Gantraet, the �;�arranty period sI�all be at ieast one year from the Accepta�ice Date. If during tlie �varranty period, one or �nore of tl�e abo�e ��arranties are breached, tEie Contractor shall prompt�y upo�� receipt of de�nand perform the ser�ices again in accordance with abave standard at no addition�l eost to tl�e City. All costs i��cidental to such additio�tal performance sha1E be borne by the Contractor. The City shali endeavor to give the Contractor lvritten notice of t}�e breach of warranty withi�� thirty (3fl) calendar days of diseovery of the b�each warranty, but �ailure to give timely notice shall i�ot impair tl�e City's rig�its under ti�is section. C. If the Co�itracior is t��iable or unwilli�ig to perfor��i its services ii� accordance �vith the above standard as rec�uired by the City, then in addition to any other avai3able re�nedy, the City may red�ce the amount of services it n�ay be required to purehase under the Contract from the Contractor, and purchase coi�forming services £rom other sources. In such event, the Contractor shall pay to the City upon dema��d tlie increased cost, if a�iy, incurred by ihe City Eo procure such services froin another source. 23. ACCEPTANCE OF INCOMPLETE OR NOI�-CONFORMING DELIV�RABLES: If, instead of requiring immediate correction ar remo�al and re�facen�ent of defective or i�on-co��forming deliverables, tlie City prefers to accept it, the City �nay do so. T��e Co��tractor sliail pay ali claims, eosts, losses �nd danaages attributable to the CiTy's evaluation af and determi�iatio�i to accept sucl� defective or non-co��fonning deliverables. Tf sny such �cceptance oecu�•s prior to fi��al payment, tl�e City n3ay deduct suck� a��aunts as are necessary to compensate the Gity for the diminished va]ue af the defective or no�i-conforming deliverables. If the aeceptance occurs after fi3ial payi�ient, such amowit will be refunded to the City by tl�e Contractor. 24. RIGHT TO ASBURANCE: lVhenever one party to the Contract i�� good faith has reasoit to questiofi tlie other party's i�ttent to perform, dema�id may be �nade to the other party for �vritfaii assurance of tlie i��te�it to perfor��. In the event that no assur�nce is given �vithin the tinie specified a{ier dema�id is �nade, the dema��ding party may trea# tliis failure as an ant�cipatory repudiation af the Co��tract. 25. STOP WORK NOTICE: Tl�e City may issue a�i imn�ediate 5top VVork 3�TOtice in tlie event tlie Contractor is obse�ved performing in a ma�i��er that is it� violation af Federai, State, or local guideli��es, or i�i a��at�ner that is determined by the City to be unsafe to either life or property. Upan notification, the Contractor will cease all work uE�til notified by tlie City thai the violation or unsafe condition has bee�� eorrected. The Contractor shali be liable for all eosts i��cu�red by the City as a result of the isstaance of such Stop Work Notice. 26. DEI+AULT: Tlie Ca��#ractor shail be in default under the Con#rae# if t�►e Cor�tractar (a} fails to fully, iimely and faithfully perForm at�y of its material o�ligations under tE�e Co��tract, (b} fails to provicfe adequate assurance of perfonna►�ce under Paragrapli 24, (c) becomes ij�solvent or seeks relief under the bankiuptcy ]aws of ihe United States or {d) makes a�naterial misrepreset�tation i�i C'ontractar's Offer, or in any report Qr delivcrable required to be submit#ed by the Contraetor to tlte City. 2i. T�RMiNAT1�N �'OR CA,US�: In tl�e evant of a default by the Contractar, tiie City si3�11 t�ave tlie riglit to terminate the Contract for cause, by writteii i�otice effective ten (10) ealendar days, w�less other�vise specifiect, af�er the date af such noiice, i��iless tlie Conkractor, within such ten (10) day period, cures s�ch defa�ilt, or provides evidence sufiicient to pro�e to the City's reasonable satisfaction tf�at such default does not, in fact, exist. �n addifion to ai�y o#her remedy a�ailabie under taw or in eq��ity, ihe City shall be entitled to 3•ecover �31 actual damages, costs, losses and expenses, inciirred by the City as a resiilt af the Contractpr's default, includi�ig, witliout limitation, cost of cover, reasonable attor�ieys' fees, court costs, and prejudg��enf and post judg►nent interest at the maximun� Ia�r�ful rata. Additionalfy, in the event of a defai�lt by the Co��tracfor, the City may remove the Co��tractor fro�i the City's ve�idar list for tl�ree (3) years aExf any Offer submitted by ihe Coniractar may be disquaiified for up to three (3) years. All rigl�ts and re��edies under the Contract are cu�nulative and are not exclusive of any other right or remedy pro�ided by law. 28. TERMINATION �V1THOi1T CAUSE: Tlie City shalf ]tave ti�e right to terminate the Contraet, iEi ivhole or in pa��t, without cause any time upon fhirty {30} caiendar days' priar �ti�ritten �iotice. Upon receipt of a notice of termination, the Contractor sl�al[ pron�ptly cease all further work pursuant to the Contracf, �vith such excepfions, if any, specified in the �iotiee of terrt�ination. The City shall pay tlie Contractor, to tlie extent of funds Appropriated or otlier�vise legally available far such purposes, for all goads delivered and services perfarmed and ob[igatio��s inc��rred prior to the date of terminatio�i in aceordance with the tern�s hereof. RFP 5071 Page 9 of 22 29. FRAUD: Fraudulent statetnents by tlia Contractor on any Of�'er or in any report or deliverable re�uiced to be sub�nitted 6y the Co�itracior io the City shall be grounds for the terminatEOn of tiie Conkraet for cause by the City and may result in legal action. 30. DELAYS: A. 'f�ie City n�ay delay scheduled delivery ar atlier due dates hy written notice to tl�e Contractor if the City deems it is in its best interest. If sucf� delay causes an increase in the cost of tlie work under the Gontract, the City and tlie Contractor shall negotiate an equitable adjustment for costs i��curred by tlie Contractar i�i tiie Contract price and execute an amendment to the Contract. The Contractor n�ust asser� its right to ait adjustment �vithin tliirfy {30) calendsr days from tlie daEe of receipf of the �iotice of delay. Failure to agree on any adjusted price shall be handled under tl�e Dispute Resolution process specifiecf in paragrapli 49. Ho�vever, nothit�g in this provision shall excuse tlie Contraetor from delaying the delivery as notifed. B. Neither party sl�all be liable far any defautt or delay in the performance of its abligations u�ider ihis Co��tract if, while and to the extent sucli default or de�ay is caused by acts of God, fre, riots, civil com�noiiof�, labor disruptions, saliotage, sovereign conduct, or any otlier cause beyond the reasonable controt of such Parry. Tn tf�e eve3it of default or delay in contract perforn�a�ice due tv any af fhe faregoing causes, tfae�i tE�e tia��e for completio�� of the services �vili be extende�, provided, however, in such an event, a eonfere�ice ��ill be he1cE within tl�ree (3) busi�iess days to establish a mutually agreeable period of time reasonably necessary to overcofate the effect of sucl� fail�re to perforn�. 31. IND�MNITY: A. De�nitions: i, "Jnden�ui�ed Clain�s" sl�al! i��cl��de any and all clai�i�s, deniands, suits, causes of �ctio��, judg�ize��ts and liability of every character, type or description, including ali reasonable costs and expe�ises of litigation, mediation or other alten�ate dispute resolutioi� ��ecl�ai�ism, including attorney a�d other professional fees for: (1) da�aage to or loss of the property of any person (ineluding, but not lin�iied to the City, the Co��tractar, their respective age�tts, officers, emp�oyees and subcontractors; the of�icers, agents, and eit�pioyees of such subcontractors; and third pai�ties); and/or (2) death, bodily i�ijury, illness, disease, �vorker's compensation, lass of serviees, or lass of ineo�3ie or �vages to a��y perso�t (i�icEuding but ��ot limifed To the agents, officers and empioyees of the City, the Contractor, the Contractor's st�bco�itraetors, and fhird parties), ii. "Pau�k" shalf incle�de the sa�e of defective or no�t-co�ifarming deliverables, negiigenee, willful u�isconduct or a breach of any legaily impased strict iiability sta�3dard. B. TI�E CONTRACTOR S��ALL I}ETER'➢ {AT THE OPTIO\ OF THE CITY�S lnA�.111IVIFI'� AND IiO1.A 3'IIF, CTi'1`� I'I'S SUCCESSORS� A55IG3VSs OFFTC�:RS� Enfl LO'�'Ek:3 A\ll �T.�.C"I'En OI'FICiA1,5 TIAR11fLF55 FR01i AND ��GAIn5T 1�LL II�D�:�INIHIED CI.AI,1fS DIRECTLI' AAISInG OUT dI', IlVCIDENT TO, CO\CEIiNIl\G OR 1tESULTI,\G F12Qi4'f}��'. �AUL'i' O�"F3�E CONTItACTOR� OR TI�E CONT�1 CTOR'S AGENTS� E1IPLDI'EES OR SU13CO\'1'1tACfOltS� IN 'L'HE I'�:1iP014DiANCE Ol� 7'�iE CO\TRAC"FOR'S 013tTGATiOi�`S i3NDFR TI�E CO\TIiACT. NOTHING HEREL�i SHtiLL i3E DEEifED TO LLiSTF THE RIGHT3 OF THE CI'fY pIt THE CO\''I'R iCTOIi (INCL.U�INGs I3UT 3�OT I.�i[TFD TO� THE RIGIIT TO SEF,K COI�`TItI13iTi'IOAFj AGA7NST Ai\Y TIIiRD P11Rf1"V4'I�TO 4iA�' 13�. LIABT�E f'Oli AN I1VD�;,�ii\iFIF,D CLr1Ilf. 32. INSURANCE: The folfowi�� ins��rance rec�uireme;tts are applicahle, in addition to the specifie insurance require�ne�its defailed i�i Attacl�ment A. Tl�e successful finn shaEl �rocure and mai��tain inse�ra�ice of the types and i�i #he minimuti� an�ounts acceptable to the City of Denton. Tlie insura��ce s��all l�e ��urit�en by a cofnpany lice��sed ta da business in the State of Taxas and satisfacfory to the City af De�ifon, A. General Requirements. i, The Contraetor shall at a roinimum carry i3�surance in ihe Eypes and amounts iiidicated and agreed to, as sub�nit�ed to tlie City and appraved by the City �vithin the pracurement proeess, for !he duration of the Contract, including extension aptions and hold over periods, a�id dttring any wan�anty period. ii. Tlie Contraetor sha{I provide Cer#ificates of Insurance �yith the cauerage's and eiidorsenients reqttire� to the City as verification of co�erage prior to contract exeeutioi� and �vithi�i fourtee�i (l�i) ca[endsr d�ys after written request from the CiYy. Failure to provide the rec�E�ired Cerfi�cate of Insura�ice may sub�ect the Offer to d�sc�ualificaiion fro�n considerafion for a►vard. The Contractor must also for�vard a Cerfiftc�te of I�3sura�zce to !he City whe�3ever a previousiy identified policy period itas expired, or ai� e�ension optio�� or haEd over period is exercised, as verifieation of co�itin�iing coverage. iii. Tl�e CantracTOr sliail nat cammenee work u�til the reqt�ired insurance is aE�tained and u�itil such insurance I�as been reviewed by the City. Approval of insurance by the City sl�a�i not relie�e or decrease tlie liability of tlie Contractor herevnder and sliall not ba copstrued to be a limitation of liability o�� tlie part of the Co�itractor, iv. The ContracEor tnust subtnit certi�cates of insurance to the City for all subeo��tractors prior to tlie RFP 5071 Page 10 of 22 subconiractors comEnc�ici�ig �vork on the project. v. Tlie Contractor's and atl subcontraclors' insuranca covarage shal! be wriiten by contpanies licensed to c�o business in the State of Texas at the tirne tl�e policies are iss��ed and shall be ��ritten by ca�7zpa�3ies wit3� A.M. Best ratings of A- VII o�• better. The City ��ili accept �vorkers' con�pensation caverage written by tlie Texas �'Vorkers' Con�pensatioi� Insurance Fund, vi. All endorseme��ts �ia�ni��g the City as additional insured, waivers, and �iatices of cancellation endorsements as we11 as the Certif cate of I�isurance shall contain tha solicitatioi� number and the fallo�vii�g ij�fo��tnation: Citp oiDenton Materials Ma�3agement Depart��ient 9E}1B Texas Street Denton, Teaas 76209 vii. The "other" inst�rance clause shall not appIy to tlie City �vhere the City is an additional insured shov��n o�� any palicy. It is i�ite��ded that policies required in the Contrac#, covering both the City and the Contractor, shall be considered primary coverage as applicabte. viii. If insura�ice policies are not �vritken for aniounts agreed to with fhe Gity, the Contractor shall carry Umbrella or Excass Liability Insurance %r any differences in a��iounts speci�ed. If Excess Liabiliiy Lnsurance is provided, it sh�ll follow tE�e forni of the primary coverage. ix. Tfie City shall be entitled, upon reqaesf, at an agreed upon locatian, a�id without expe�ise, to revie�v certified copies of policies and e�idorse��eiits Tliereto a�id may make any reasonable requests for deletion or re�isio�i or modi�cation of particular policy ter�ns, conditions, li�ni#afions, or axclusions except where policy provisio��s are established by law or regulations bi�iding u�on either of the parties iiereto or the �ntden�riter o�� a��p si�eh policies. x. The City reserves the right to review the insurance requirer�zents set fa�#h during the effective period of the Contract at�d to inake reasonable adjustme�its to i�isurance eoverage, limits, and exclusions when deemed ��eeessary and prudent by the City i�ased i�pon cl�anges in siatutary la�v, co�rt decisions, tl�e claims }3istoiy of the industry or �nancia! candition of the insurance con�pany as well as the Co3�lractor. xi. The Contractor sliall not cai�se any insurance to be canceled nor �ermiE any insuranee to lapse during the ter►n of the Contract or as required in the Coutract. xii. The Co��tractor sliaiI be responsib�e for pre�i�iums, deductibles and self-insured reientions, if any, siated ir� poEicies. Ali deductibfes c�r self-insf3red retentions shall be disclosed on the Certi�cate o#'I��surance. xiii. 'I'iie Contractor sha�l endeavor to provide the City thirty (30} calendar cEays' writte3� not�ce of erosian oftl�e aggregate li�nits beIo�v occurrence limits for att applicable cover�ge's indicated within the Contraet. xi�. Tlie insura�ice coverage's speeified in wifhi�i fhe solicitatio�i aEid req�irenients are req�ired 3ninitn��its and are not i�3teiided to liinit the respoi�sibility or lixbility of the Co�itractor. B. Specifie Co�erage Require�nents: Specific insurance rec�uirements are co�ilained i�� flie solicitatioi� iiistrun�ent. 33. CLATMS: If a�3y cfain�, demand, suit, or other actio�i is asserted against tlie Confractor wi�ich arises u��der or concerns the Contraef, or w��ich covid ha�e a�i�aterial ad�erse affect on tl�e Contractor's ability to perform thereunder, the Contractor sE�all give ��ritten notice thereof to the City �vithin ien (10} ealeE�dar days a�er receipt of �iotice by the Contractor. StECh notice to the City sliall state tlie date of notification of any s�eh claim, demand, suit, or other action; flie names and addressas o£ the claimant(s); tha basis tliereof; and tlie ��anie of each �erson �gainst �vhom sucf� claii�� is beii�g asserted. Such notice sE�all be clelivered personally or by �t�ail a�id shall be sent to tlie City and to the De��tor� City Attorney. Personai delivery to the Ciry Attorney shatl be to Ciry Half, 215 ��st MaKi�mey Street, Denton, Teaas 7G201. 34. NOTICES: Unless otl�er�vise speci#ied, all notices, rec�uesls, or oflier comi��unicatio��s required or appropriate to be given tmder tlie C`antract shall be in tivriting and shall be deenied delivered three (3) business days after pastn�arked if sent by U.S. Postal Service Ceriified or Registered Mail, RehErn Receipt Requested. Notices delivered by other means sttall be deemed delivered upon recai�t by the addressee. �toutine communications may be made by first class mail, tefefax, or other commercially accepEed means. Natices to tE�e Co�itractor sliall be sent to the address specified in the Confraeior's Offer, or at such other address as a party may notiiy fhe ofher i�i �vriting. Notiees to the City sl�all be addressed to Elie City at 9018 Texas Street, Denton, Texas 76209 and mar[ced to the atie�ition of tlie Purchasing Manager. RPP 5071 Page 11 of 22 35. RIGHTS TO BID, PROPOSAL AND COI�TRACTUAL MATERIAL: All ��ateria[ subinitted by the Cantractor to the City sltall beeame properiy of fhe City upon receipf. Any par�ions of such n�aterial cfaimed by the Contractar to be proprietary niust be clearly marked as such. Determination of tl�e public nature of the material is subjeet to tlie Texas Public Infonnatio�s Act, Cha}�#er 552, a�3d Texas Government Code. 36. NO ��'ARRANTY BY CI'TY AGAINST IN�RINGEMENTS: The Cont��actor represents and warranis to the City that: (i) the Contractar slaall provide the City gaod and indefeasible title to the deliverables ancf (ii) the deliverables suppIied by tlie Contractor i�� accorda3iee witl� the speeifications in the Coniract �vill not inf�inge, direc#ly or contril�uforily, any patenl, trademark, copyright, #rade seeret, or any otiier intellectual property right of any kind of any tliird party; that x�o clai�ns have been �n�de by any person or entity with respecE to the ownership or operation of the deliverab�es and the Cof�traetor does not kno�v of any ��alid basis %r any such c9aims. The Contractor shall, at if.s sole expense, de%nd, indem�iify, a�id ho�d the City harmiess fram and against all liability, dantages, a��d costs (i�icluding court costs a�id reasonable fees of attorneys a�id otiter pro%ssionals} arising out of or resulling from: (i} a��y elai�n that the Cily's exercise anywhere in the �yorlc3 of ti�e rights associaied �vifh the City's' o�v�iership, and if app�icable, license righis, aaid its use of ff�e delive��ables infringes tt3e intelfectual property righ#s of a��y tliird par�y; or (ii) the Contraetor's 6reacii of any of Co�ttractor's representations or warranties stated in this Co�i#rae#. I�� t�e event of any such clai��, tlie City sliall ha�e the right to mo3iitar sucli claim or at its option engage its o�v3� se3�arate counsel to aet as co-counsel an the City's behalf. �urther, Co��tractor agrees tltat tlie City's specifications regarding the deliverables shall in no �vay dimia�ish Contracior's �i�airanties or obligations u��der this paragraph and the City it�akes no ��arraniy that t�ie productioi�, de�elopmept, or delivery of s��ch deliverables wiil iiot impact such warranties of Contractor. 37. COl!'FID�NTIALITY: In order to provide tl�e deliverabies to the City, Contractor may rec�uire access ta certai�� of the City's and/or its licensors' confidential infor��ation (including inventions, emplayee information, trade secrets, eonfide�itial know-how, confidential business information, aiid other information �vhich the Gity ar its lieensars co�isider eonfideiiiial) (eollectively, "Co��fidential lnfor�natioit"). Cantractor xck��owledges and agrees tliat the Confdential �nformatioE3 is the valuable property of the City �ndlor its licenso�•s and any �mauthorized use, disclos�re, dissemination, or other release ofti�e Co�ifide�itiai Information wilt substantially injure the Ciry and/or its licensors. The Contractor (including its employees, subeontractors, agents, or representati�es) agrees tliat it ��ill �nai�atain tf�e Co��fide��tial I��formafion in siric# confidence a��d sl3all noi disclose, disseminate, capy, di�utge, recreate, or otl�envise use tE�e Co��fidential Infar��tatio�� withot�t ll�e prior written co��seiit oitlie City ar in a ma��ier ��ot expressly permitted u��der this Agreement, unless the Confidential Informatio�� is required to be disclosed 6y law or an order of any cou�t or otlier governn3ental auEliority with proper jvrisciiction, provided tlie Coi�tractor proinptly ��oti�es the City t�efore disclosi�ig sucli i�ifarc�iation so as to pen�iit the City reasonable tiine to seek an appropriate �rotective order. The Contracfor agrees to use protective ineasures no less stri��ge3�t ihan the Coi�tractor uses �vithin its o�vn business to protect its own most �aluable i�iforma#ion, tivhich protective ��easures sf�ali under all circamstances be at least reasonable rr�easares to ensure the continued confidentiality of the Coi3fide��Eia1 Informatipn. 38. OVVNERSHIP AN➢ US� OF DELIVERABL�S: Tl�e City shail o�vn atl rights, titles, and interesis tl�roughot�t the �vorld i�i and to the deliverables. A. Patents. As to any pate��ta�le subject ��atter contained in tlie deiiverables, t3ie Contractor agrees to disclose sucii paEentable subjeci matter to the Ciiy. FFirther, if requested by lhe Ciiy, the Contractor agrees fo assign and, if necessary, cause each of its employees to assig�i the entira right, titie, and interest to specifc inventio��s under stECh patcntable subjeeT i��atter to the City a�id to e�eeute, ackno�vledge, and deliver and, if neeessary, cause eacli of its e��pioyees to eYecute, ack��owledge, ai�d deliver an assigm��ent of letters pale��E, i�� a forcn #o be rcasonai�ly approved �y tl�e Cily, to the City upon re€�uest by the City. B. Co�yrights. As io any deliverables containing copyrightable s�bject mafter, the Contractor agrees lhat upo�i their creatian, such deli�erables shall be eo�isidered as �vork xz3ade-foz-hira by the Cantractor for the City and the Ciiy s)iall own all co�yri�hls in and to such deliverables, provided I�owe��er, that nothing in this 1'aragrapl� 38 shall negate tlie City's sole ar,�oin# owuership of any suc}� deli�erables arisiE�g by �irt��e of the City's sole or joint aUthorship of suck� deliverables. Should by operatian of la�v, such de�iverables not be considered Fvor[cs m�de-far- liire, tlie Contraetor hereby assigns to thc City (a�id agrees To cause each of its en�ployees providing services to the City hereunder to exec��te, ackno�viedge, and deiiver an assignment fo the City a� all worldwide right, title, aud interest in and to sucli detiverabies. With respect to such work made-for-3iire, the Co�itractor agees to execute, ackno�vledge, and deliver and cause eac}� of its empEoyees providing services to tl�e City hereunder to exec�ite, acknowledge, and deliver a�vork-n�ade-for-hire agreement, iii a form to be reasonably �pp�•aved by #he City, to the RFP SQ71 Page 12 of 22 City upon delivery of such deliverab2es to tl�e City or at such aiher fi�ne as the Gity xnay rec�uest. C. Additional Assigi�rr►ents. The Contractor fur�her agrees to, and if applieable, ca��se each of ifs employees to, execuie, ackno�vledge, and daliver ail applieakions, specificatio��s, oaths, assignments, and all oTher instrutnents �vliicl� the City n�ight reasonably deef�� iecessary in order to apply for a�3d obtain copyzight protection, mask work registratia�i, h'ade��ark ragistration a��d/or protection, letters patent, or a�iy si�nilar rights in any and all countries and in order to assign and convey to t}ie City, its successors, assigns and not��i��ees, fhe sole and exclusive right, titie, aiid interest in and to tlie cfeliverables. The Cotiiractor's obligations to executa, acknowEedge, and deliver (ar eause to be executed, acknawledged, and delivered) instru►nejits or papars such as t}�ose described in this Paragraph 38 a., b., and c. shall continue after the terminatiou of tl�is Co��iract with respect to such deliverables. In tlie event tlie City s��ould not seei� to obtain copyrigl�t protection, mask �vork registration or pafent �rotection for any vf the deliverables, but s��ould desire to keep the sa�ne secret, the Co�itracfor agrees to treat fhe same as Confidential I�ifori��atio�i under tl�e tern�s of Paragraph 37 abo�e. 39. PUBLICATIONS: Ali publislied �uaterial and �vritten �•eports sub►nitted under the Contraet tnust be originaliy devaloped materiai unless aEherwise specifically provided in the Contract. When n�ateriai not originaily developed is i�icluded in a report in any form, t��e souree shall be ide�itified. 4Q. ADV�RTISING: Tlie Contractor sha11 noi advertise or pUblisl�, �vithot�t the City's prior consetii, the fact that tiie City has entered into Ehe Co3iiraet, except io tiie axtent required by la�v. 41. NO CONT'ING�1\T F�ES: The Contractor �varrants that no person or selling age�cy has been emp�oyed or retainec3 to soiieit or seeure the Cantract �pon any agree�ne��t or understa�iding for co�m�iission, percentage, brokerage, or conti��gent #'ee, excepting bona fide employees of bo�ia fide established coi��mercial or selling agencies 3t�aintained by the Cot�traetor for the purpose oi securing b�si�iess. For 6reacl� or via�ation of Ehis �yarranty, the CiEy sl�al[ haue the right, in addition to a�iy otlier re��edy a�ailable, to cancel the Co�ttract witl�out liability and to deduct frain any an�oui�ts o�ved to tl�e Co��tractor, or oiherwise recover, the full amount of such conunission, percentage, brokerage or eontinge�it fee. 42. GRATUITI�S: 1'he City �nay, by ivritten notice to the Con#ractor, cancel the Co��traet ��ithout liability if it is detennined by the City th�t gratuities were offered or given by the Contraetor or any agent or representativa of ti�e Ca��tractor to any officer or employee of the City of De�iton with a view toward securing t]ie Contract or securing favarable treatnient �vith respect to fhe awat•ding or a�nending or the �iz�king of a�iy c3eiermi�3ations wifli respect to tfie perforEning of sucl� contract. In the eve�it t��e Coi�tract is canceled 6y the City pursuant to tiiis prov�sion, the City sliall t�e e�itifled, in addifion to a�ry otlier rights a�id re�nedies, to recover or withhold the amou�it of the eost incurred by the Contractor in proviciing suc�i gratuifies. �3. PROHIBITION AGAINST ��RSONAL ]NT�REST I]!T CONTRACTS: No officer, eEizployee, independent consultat�t, or etected officia3 of the City �vho is involved in the de�elo}��nent, evalu�tion, or decisian-making process of the performance of any solicitatio�3 shslf have a financial interest, direct ar ind�rect, in tl�e Contrac# resulting frotn tliat solicifatio�t. Any �villf[�I violation of tl�is sectia�� sliall constit�te impro�riety in of�ice, and any o�cer or emptoyee guilty tf3ereaf sh�iE be subject to disciplinaty action �p to ��id including dis�zaissal. Any violation of t13is pro�ision, �vitf� the kno«�ledge, expressed or i�nplied, of tl�e Contraetar shall render the Contract voidable by the Ci#y. The ContracFor shall co�nplete and s�ibmit the City's Conflict of Tnterest Questiom�aire (Attachment Bj. 44. IND��'�NDENT CONTRACTOR: The Co��tract shall not be construed as creating a❑ einployerlemQloyee relationship, a partnership, or a,�oii�t venture. The Contractvr's se�vices shall be those of aii indepencfent co��tractor. 'I'lie Cont�•actor agrees and u�iderstands that the ConEraci does nat grant any riglits or privileges establislied for emplo3rees of the City of De��ton, 'I'exas for the purpases of inco�ne t�c, �vitt�ioldi�ig, social security taxes, uacatioi� or siek leave benefts, worker's compensatio�, or a�iy oiher City en�pioyee henefit. Tlte City sl�all nat have supe►visior► a�id contro) of the Contraetor or any emp�oyee of the Contractor, and it is expressiy u�iderstood that Contractor shall perfon3t the services hereunder secarding to the attael�ed speci�cations at the general direction of the City Manager of the City of Denton, Texas, or i�is desi�ee i�E�der this agreement. 45. ASSIGNMENT-DELEGATION: The Contract shail be binding upon a�id ensure to the benefit af the City aE�d tlie Co�itractor and their respeetive suecessors at�d assig��s, �ro�ided i�owever, ihat no right or interest i�i the Contraet si�all be assigtied and no obligation shall be delegated by t�ie Contractor witf�out the prior written consent of ihe City. A��y attempted assignmeni oE• de�egation by the Conkractor shall be void u�i�ess ��ade in co�far�nity with tl�is RFP 5071 Page 13 of 22 paragraph. Tha Contraci is not inte�ided ta confer rights or Uene�ts on any perso��, �rm or entity not a paEty hereto; it being the i�tfentian of the parties that tiiere are iio fhird �arty be�teficiaries to the Contract. 4G. �'4'AIVER: No claim or right arising out of a breach of the Contract can be discharged in whale or in part by a �vai�er or renuneiatia�� of the claim or right unlass the ��aiver or renunciation is supported b}� car�sideration and is in wrifi��g signed by tl�e aggrieved party. No �i�aiver by eitlzer the Contractor oe the City of any one or iitore evc��ts of default by ti�e other party shall aperate as, or ba construed to be, a pennanent �vaiver af a�ry rights or obligatians under the Co�itract, or ai� express or implied xcceptance of any ot�er existing ar future default or defaults, ��Itefher of a similar or different eharacter. 47. MODIFICATiONS: The Co�iiract can be modified or amended only by a�i=riting sig�ied by both parties. No pre-printed or si�nilar terms on any the Confractor i��voice, order or otlier document shall have ai�y %rce ar effect io ehange the ter��s, cove3iants, a��d canc�if io��s of the Contract. 4$. INTERPR�"I'ATION: 'I'he Cantract is intended by tt�e parties as a f��al, eo��plefe and exclusive staTetnent of the terms of tlieir agree�nent. No co�rse of �rior dealing beriveeR� the parties or course of performance or usage of the trade shall be relevant to supple�nent or explain a�ry term ��sed in the Contract. Althougli tl�e Contract may l�ave been sabsta��tially drafted by one party, it is ti�e intent of fl�e parties tliat ali provisions be co�tslrued in a manner to be fair to both parties, reading ��o Qrovisions more strictly agaic�st o��e �ar�y or the otl�er. �'Vhenever a term defif�ed by the Ui�ifb��m Commercial Code, as er�acted by the State of Texas, is used in the Contract, the UCC defi��itiofi sliall controi, tm[ess othenvise defi��ed in the Conlract. 49. 1]�S�'U`I'�, R�SO�UTI�N; A. If a dis�uEe arises out of or reiates to tt�e Cotitraci, or tl�e breach thereof, the parties agree ta negotiate prior to �rasecuting a suit for damages. Hawever, this section does not prohibit ihe #ili�ig of a la�vsuit to toll the runni��g of a statute of lii��itations or to seek inj�nctive relie£ �.ither party n�ay ma�e a written request for a meeting beriveen represe�ttatives of each party withir� fo��rteen (1�) eale��ciar days after receipt of the request or such later period as agreed by the parties. Each party shall iiiclude, at a mi�iimmn, one (l) senior level ir�dividual tvitli decision-making authority regarding tlie dispute. The purpose of this and any subsequent meeti�ig is to attempi ii� gaod faith to negotiate a resolution of the dispiite. If, �vithin ti�irry (30) calendar days after such �neeting, tl�e parties have nat suceeeded in negotiatit3g a resoltttion of fhe dispute, tl�ey �vill praeeed directly Eo �;�ediatio�� as described below. Negotiatio�� nay 6e waived by a writ�en agreeme��t signed by botl� parEies, i�� vhict� event the parties n�ay proceed direetly to mediatioii as descril�ed E�eloev. B. if the efforts to resol�e the dis�ute t1�ro�igh �iegotiation fail, ar the parties waive the nego#iation process, the parties n��y seleet, evit��i�i tf�irty (3fl) calendar days, a mediator irained in mediation skills to assist with resait�tion of ilie dispute. Shottld they choose tliis aption; the City and tiie Co�itractor agree to aet in good faith in ihe selection of the mediaEor and to gi�e consideration to quatified individuals nomi��ated to aet as n�►ediator. Nothing in tlie Co��tract prevents the pa�ties fro�n relyic�g on the skills of a persoi� who is #rained in the subject tnatter of t�ie dispute ar a contracE interpretafioE� eape��t. If the parties fail ta agree o�i a�nediator �vithi3� thirty (30) calenda►• days of initiation oF tlie n�ediaiio� process, tiie mediator shall be seiected by the Denton Cae�nty Alternative Dispute Resolutio�� Progra��i (DCA�). The parties agree ta participate in mediaiio3i i�� good faith for up to tliirty (30) calendar days frotn the date of tl�a �rst medi�Tion session. The City and tl�e Cantractor �vill share the �nediator's fees equaliy a�td the parties will 6ear their own costs of partieipation siich as fees for any cons�ltants ar attarneys they ��ay utilize to represe�it the�t� or otf�e��vise assisi tl�em i�i the titediation. SQ. JURiSDICTION AND VEI�IUE: Tl�e Contract is made under and shali be go�verned by tf�e laws af the St�te of Texas, including, when applicable, tl�e Unii'arm Commercial Cpde as adapted in Texas, V.T.C.A., Bus. & Comrn. Code, Ch�pter 1, excluding any ri�le or principle that would refer to and ap�ly the substa��tive [a�v of another stata or jurisdicfio�3. A!I issues arising from this Contract sliall be resolved i�3 il�e eot�rts of Denton Cou�ity, "I'exas and the pa�ties agree to submit to the exclt�sive personal jurisdiction of such cnurts. Tl�e foregoing, ho�vever, shall not be construed ar i�itcrpreted to 3imit or restriet the right or ability of tlie City to seek anc� secu�•e injunctive relief from a�zy co�i�petent autlxority as contemplated lierein. 51. 11�VAX,IDZ'C'SC: Tl�e invatidity, illegality, or unenforceabiliry of any provision of the Contract s�all i�i no way affect the valic�ity or enforceability of any oti�er �ortion or provision of the Co��tract. A��y void provision sliali be cfeemed severed �rom the Contract anc3 ti�e baianee of the Co�itrac# sk�all be constnied and etiforced as if the Contract did 3iot co�itai�� tl�e pa►tic��lar portion or pravision held ta be void. Tl�e parties fi�rther agree to re%rm the Contract to R�'I' 5071 �age 1� of 22 replaee any stricicen pro�ision �vith a �alid provision that con�es as close as possible to the ii�tent af tlie stricken pro�ision. The provisions of tlfis secEiot� siaail not prevet�t this entire Contract fro�7� being void s}�auld a provision �vhich is t13e essei�ce of the Coniract be determined to be void. 52. HOLIDAYS: The follorving liolidays are observed by ilie Giry New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Tha2�ksgiving Day Day After Tl�anksgiving Christmas Eve (observec�} Clirisin�as Day (observed) Ne�v Year's Day (observed) I�a Legal Haliday falls on Saturday, it will be observed on tlie preceding Friday. Tf a Legal Holiday fal�s o�� Snnday, it �vill be observed o�� tite foffowi�tg Monday, Noril�al hours oioperation s1�aI1 be between 8:00 arn and 4:00 p�n, Monday through Frida3�, excluding City of Dento�i Holidays. F1t�y scheduled deliveries or �vork perforfnance not within the narmai haurs of operatio�� musi be a�provecl by the City Manager of Denton, Texas or his auti�orized designee. 53. SURVI�'ABZ�,ITY OF OBLIGATIONS: All provisioj�s of #i�e Contract that i��pase eo��Tinuing obligatio��s on the parfies, including but not lii��ited to the warra�tty, inden�nity, aE�d eo��fidentiality obiigatio��s of the parties, shall survive the eapiraiion or teri�iination of il�e Contract. S4. NON-SUSPENSION OR DEBARM�NT C�RTIFICATIOIl: Tf�e City of Dento�� is prvliibited fram contracting ��ith or �naking �ri�ne or sub-awards to parties that are sus�encEed or debarred or whose principals are s�spencEed or debarrecf from �'ederal, Siate, or City of Denton Contracts. By aeeepti�ig a Contraet �vitli tf�e Ci#y, the Vendor certiiies tliat its firm and its }�rincipals are ��ot curre�ttly suspended or cEebarred froro daing busiuess wiih ihe Federal Govermnent, as indica#ed by ihe �eneral Servicss Ad�ninistratio�� List of Parties Excluded from Federai Pracure�nef�t anc� Noi�-Proc�irement �'�•ograms, tl�e State of Texas, or tlie City af Dento��. 55. �QUAL QPPORTUNITY A. �qual �mployment Opportfniity: No �fferar, or Offe�•or's agent, s1�a11 engage in any discriminatary e��ployme��t practice. l��o person sl��ll, on tlie grounds of race, sex, age, disabiliEy, creed, color, genefic testing, or i�ational vrigi�i, be ref�sed the l�ene�its of, or be othenvise sub�ected to discrimi��atio�i under aE�y acti�ities result�ng fram tf�is RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Oiferor, or Offeror's agent, shall engage in aE�y discrimi�iatory eE7�ployntent ��•actice against individ�3als �vith disaisi�ities as defined in the ADA. 56. �3UY AM�RZCAN AC1'-SUPPLI�S (A�piicable ta certain federall} funded requi�•ements} The folio�ving feder�lly funded requiretnents are applicable, in addition !o t)�e speci�c federally funded requirel�ients detailed in Attachment C. A. Defi�iitions. As used in ihis paragrap� — i. °Compo�ient" n�eans an article, material, or supply inco��orated directly into an end produet. ii. "Cost of com}�onents" means - (1} For eompo3ieiits pureltased by !he Contracfor, il�e acquisition cast, including transporlation costs to tlie glaee of inearporation ii�to flie eEid product {whether or not such costs are paid to a cEomeslic ftrtn), and a�ry applicable dt�ty (`vheiher or �iot a duty-free e��t�y certi�cate is issued); or (2) For components tnanufaciured by the Contractor, alE costs assaciated �vith fhe manufacture of the compo�ent, ineluding transportation cnsts as descriUed in psragraph (1} oi this definition, plus alloca(�le overhead costs, but excluding profit. Cast a�co�nponents does not incJude any costs associated with the ��anufact�re of the end product. iii. "Damestic e;�d product" means- RFP 5071 Page 15 of 22 (1) An umna�iufactured end product mined or produced in tl�e U��ited States; or (2) An etid producf �nanufactured i�� the United 5tates, if the cost of its contponents �niued, produced, or rnanufactured in lhe United States exeeeds SO percent of the cost of all its eomponents. Com�onenis of foreign origi3� of tlie sa�ne elass or kind as those that the agency detennicies are not mined, produced, or n�anufacEured in st�f�icient and reasonably available eoinmeroial quantiiies of a satisfactory q�iality are treated as domestic. Scrap generated, collected, and prepared for processing i�� the United States is co�isidered doniesiic. iv. 'Bnd product" meai�s those articles, n�ateria[s, and sttpplies to be aequired under the co�itracE for public use. v. "Foreign ei�d produc#" means a�i end product other tlian a doniestic and product. vi. "United 5tates" ��eans the 50 States, tt�e District of Columbia, a��d outlyi��g areas. B. The Buy America�i Act {41 U.�.C. 10a - IOd) provides a preference far do�nestic end products for sttpplies acquired for use in the Ui�ite€i States. C. Tlie City does noi inaintain a list of%reign articles that will be treated as domesiic for tE�is Contract; but will consider for approval foreign articies as domestic for tl�is product if the articles are on a list approved by another Governmentat Agency. The Offeror shall subi��it docu�nentation tivith their Qffer demoatstrating tf�at the arEicle is o3i an appro�ed Governn�ental lisf. D. Tiie Coniractor sf�all deliver only domest�c a�id products except to the exteni that it specifed cielivery of foreigii end prod�cts in tl�e pro�ision of the Soliciiation ent�tled "Buy American Aet Ce3�fi�cate". 57. RIGHT TO INFORMATION: Tl�e City of Dezitoti resexves the right to use a�y and all informaiio�� presented in any response to this solicitation, wheti3er amended or not, except as proliibited by law. Se1ec#ion of rejection af tha su�miltal does �iot affect this riglit, 58. LIC�1lTS� TEES OR TAXES: Provicfed the solicitation requiees a�i awarded co�rtractor or supplier to be [ieensed by the State of Texas, any aE�d alE fees and taxes are fhe responsibility oftha respondent. 59. �'REVAlI,1NG'V4'AGE RAT�S: AIE respo�ida�its wiil be required to com�ly with Provision S 159a of "Vernot�'s Amiotated Civil Statutes" of El�e State of 1'exas with respect to the payment of pre�ailing �vage �•aEes and prahibiting discriminatio�3 in the employment practices. I�tt�://��vw.aecess.gpo. g ovlda�isl�acof�/tx. htn�l 60. C4MPLIANCE WITH ALL STATE, FEDERAL, A1�D LOCAL LA�VS: The contractor or su�plier shall cotnply witli all Sfate, �edera[, and Local laivs and require3ne�its. Tlie Respondant must co��ply �vith all app]icable laws at all ti�nes, iEieiuding, without lin�itation, the faliowing: (i) S3G.02 of tl�e Texas Pe,�al Code, ��hicli prol�ibits 6ribery; (ii) §36.09 af the Teaas Penal Code, wl�ich prof�ibits tE�e offering or canferring af betiefits to pt�blie servants. The Responde��t sl�all give all ��otices and eon�ply ��iih all laws and regulatio��s applicab�e to furnislii��g and perfonna�;ce of t�e Contraci. 61. FEDERAL, STATE, AND LOCAL R�QUIREMENTS: Respo��de��t sl�ali demonstrate an-site con�plianee witl� fhe Federal Tax Refonn Act of 1986, Section 17fl6, an�ending Section 53{i of t3ie Reve3iue Act of af 197$, deaIing �vil1� issuaiice of�orin W-2`s to common law employees. Responde��# is responsible for baili federal a�id State une��}�Eoy��ient insurance co�erage aEic� sta�idard Worker`s Cotnpe��satio�� insurance coverage. Respondenk shali ensure compliance with ail federal a►�� 5fate tax la�vs and �vithliolding requireinents. T�je City of De��ton siiall not t�e liable to Respondent ar its e�nployees for any U�te�3�ployment or Workers' Compensatio�i coverage, or federa[ or Stat� �vithholding requirements. Contractor shall indemnify the City of De��ta�� a��d shall pay afl costs, penalties, or losses resulfing frorn Respondent's omission or breacl� of #his Seetion. b2. DRUG TREE VVORKPLACE: The contractor s3��lf co�nply with the applieable provisio��s oftl�e Drt�g-kree Work P1ace Act of �988 (Public La�v 100-6�(},'Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) aiid maintain a dn�g- free work e��vironment a��d fhe final n�le, government-�vide requiremeE�ts far d�•�g-free �vork place (grants}, issuec� by the Offce of MaEiags��e��t and Budget and tl�e Department of Defense (32 CFR Part 28Q, SuE�parf'F} to irnplement ihe provisions of the Drug-�ree Work �'[�ce Act of 1988 is incorparated by referenca aitd tf�e co�itractor shail cotnply wifl� the re�evant provisions thereof, including a��y a��iendnients to tlie fnal rule tE3at �nay he�•eatter be issued. 63. RESPOND�I�T I,IAI3iX.IT'Y �OR DAMAGE TQ GOVERNMEAIT PROPERTY: The Respondent sltall be Iiable for all damages to govetn�nent-oZ�nied, leased, or occupied pro�erty a��d eQuip�nent caused by tiie Respondent RFP Sd7I 1'age 16 af 22 and its en�ployees, age��ts, subcontractors, and suppiiers, including any delivery or ca�tage cornpany, in connection wiih any performa��ce pursuant fo tiie Co��tract. The Respande��t shall noEify tlie City of Denton Procurement Manager in �vriting of any such dan�age witE�i�i one {1) ealendar day. 54. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent ahall not be responsible %r perforn�ance u�ider the Contraci sliould it be pre�ented from perforrna�ice by an act of war, order of iegal aukhority, act of God, or otf3er u�iavoidable cause not aitributabie to the fat�it or negiige�ice of ihe City of Denton. In the event of an occ��r�ence under tl�is 5ection, the Respondent �yill be excused fro�� a��y furll�er perfonnance or observai�ce of tlie requiren�ents so afFected for as �at�g as such circu�nstances prevail and the Respondent continEies to �se eommercially reasar3able efforEs to recon�me��ce performa��ce or observance wliei3ever and To �vhatever extent passible witho�t delay. 'I'lie Respondenf sl�a[1 im�nediately notify the City af Denton Procurement Ma��ager by telepi3one (to be confirmed i�� wriTing �vithi�� five (5} calef�dar days of ti�e inception of such occurrence) and deseri6e at a reasonable �evel ofdetail tlie circumstancas causing the non-perfor��a�zce or delay in performance. 65. NON-R'ANER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will �ioi affect the right of sucl� Pariy to rec�uire }�er£ormaiice in tlie iuture. No delay, failure, or ��aiver of eiklier Party's exercise or pa�tial eaercise of a�iy right ar rerr�edy under the Contract sl�all aperate to limit, impair, preclude, ca��cel, �vaive ar ot��er�i�ise affect sucl� riglit or reEnedy. A�yaiver by a Party of any breach of any term of the Co�itracf �yili not be co��strued as a wai�er o£ai�y coi�tinuing or sueeeeding breach, 6b. NO �i�AIVER OF< 50�TEREIG3�' I[l1MUR'ITY: Ti�e Parties expressIy agree tl�at no provision of tl�e Coi�tract is in any ��ay inte��ded to eonstitute a�vaiver by fhe Gity af Denton af a�ry immi�nities frora st�it or from ]iability that the City of Denion may l�ave by ope��atio�� of law. b3. RECORDS RET�NTxON: 'i'he Respondent shail retain a�l fi��anciat records, supporting docu�ne��ts, statistical records, and any other reeords or books relating to the perforn�ances called for in t6e Contract. The Respo�ident shall reiain a31 such records for a period of four (4) years after the eapiration of the Coniract, or uiitil tk�e CPA or State Auditor's Office is satis�ed that aEI audit and litigalioi� ��atters are resolved, whichever period is lo3iger. Tl�e Resgondent shall grant aecess to all baoks, reeords �nd documents �ertine��t fo #i�e Contract to tlie CPA, tiie �#ate Auditpr of Texas, and any federal governmentai entity tliat has aut�ority to review records due to federa[ fu�ids being spent under the Ca��tract. RTP 5071 �'age 17 of 22 Exhibit C 36 Georgia Avenue • Harnptan, GA 30228 Southern Phone; 770-946-4562 • Fax: 770-946-8't�6 E-mail: salesCc�soutt��rnstateslic.eon� ��[�t '�l� Web: southernstateslfa,com Octab�r 1 S, 2012 Adciitional infoi�natio� z•eg��°ciing Soutl�e�•n States ��roposal P-203138 far Ciky ofDe�ztoii, RFP #� 5071: I } Co«tract Tert�i: Ot��• �uated p��ices �ce firrn �ar 3�ear (1). The p�•ieiiig for acit�itional ye�t'(s) t�vill be acljusted i�� Deceja�be�� ' using belov�� ix�ciex. We propose to i3se base ��utnbe��s froni �o�=e�nbec 2012 as they becon�e a��ailable. Pi�odrtcer P��ice �ndex �€�dusti�� D�fa Series �ct: PCEI3353133353�3 Indust��r: 5t�itchqear and sUritchboard apparatus ��tq P�oduat: Stai�chgear and staitchboard appa�atus mfq 2) We take a�� exception to Cooperati�e Pu►•chasing IPiggyback optio��; 3) O��r �roposal is v�lid fo� 12� d�ys. �) uje l�av� c�tiioied s��itches �er ANSI s�ecificafions t��at �neets 53 deg�ee C rise. 5� C�.►rrently o�ir ie�d�titr�es are r�mtii��g 12-]�l ��eeks fo� group operated s�fitcl�es. Dili' ��CA� �•epresentative �iTi11 provide updates o�i leaci-ti��ies on c��arte��ly basis. 5) We wi(1 offe�� %% discQ��3t for invaicas paid in less t1�aEi 20 da5�s, -- �oe�thex�n States Vstlue Adclecl Beuefi�.s; 1) Sottth�r� �tates lias a 2��l�oi�r B�i�erge�icy Assista�ice �ntnibe�• (?70-9�6-4SG2} il�at City of Dentoz� can ��se outsicie of �ior��ial business l�ot�rs for iusl� part i�eeds or ovei• ti�e plio�ie e�nergei�cy field se��zrice ass�stance. 2) Ot�r local reJ�r�sentative is available fo City o�D�i�to� e��gine�ring to assist i�i o�taizsi��g rec�uired desig�� c�etails �o�• speciai ii�stallatio��s wt�e�e details are not kr�awn, 3) We will pro��ide qitae�t�rly open order i•epo�t. 4) �e �n�ill pz•ovide p�•od«ckio�� 'eser��afioj�s fo� fo�ecastec� p�•ajects. We laok forwai•d to vvoa•ki�� litl� City of T]e�itoa� oia tl�is �equii�erne��t. Regards, Amit �VTiodi Th� Quafity Name In High Vo[#age Swiiching RFP 5071 Page 18 pf 22 z� � � w 0 V ..a ro m ca m � 0 � N N Exfiibit '� ProPaser`s Name: Southern S�ates, Li.0 Propaseti Manufactvrer: Southem States, LLC R�P 5071 PriciRg Sheet for Supply �f El�cfiric Utili#y 69kV and 138kV St�E�s�Eation Switc�es Propased Pricing{FOB D�STi�IATION)_ �ayment 7erm Discounts Payment terms for the City of Den#on are typically 30 days. Please indicaTe the adcfitional disCOUnt extended ta e�ach rr3anthty invoice that is paid within tF�e time period indicated befaw. .�,i.F��i'I ,P ri�,tl�'Ffi;,� rf��'?aYIY�@Ili�3,Q�'�#7S,�t...,:alS .a �!L"`.;"::, ' ��,,.!:I�,;' %s�,a,.?ri,,. i.�:'I Irrvoice Paid in 20 days D.25% Irrvaice Paid in 15 days �0.25% lnvRiC2 PBid in 'IO days I • ° PRIGiNG SNALt BE QllOTER TA EMCi.UDE AL[. GOSTS, W1TH SHIPP[NG F08 DESTlNA71aN. m x s � n Exhibi! C Alternates #o 55 I'ro�osaE P-243138: LH-6138 kV, fi3. kA mornentary rated three pole rr�anua! swing handle operated gro�nd switch. To be mo�nted on new EV-2 switches quoted on this proposal. Unit Price: $4,995.00 net each AVS �.-z �two pofej wi�h operatEng assembly. Less mounting steel. �lnit Price: $25�.fl0 net each AV51-�# (faur pole) with operating assembfy. I.ess mounting steel. Unit Price: $295.0� net each RFP &071 Paqe 20 of 22 �X�,;b�c c CI7'Y OT D�NTON �U�'I�I,X QF EL�C`1'�C UTILITY 69�iV & 13$kV SUB�TATION �W�`�'C�I�S ATTACHIl�NT C BUSIN�SS OV�RVI�W QT1ES�'IQNN.A.��.� AND FOR.IV.�S �, Cont�•acto��Naiue: P�efex��ed Sa3es Age�icy, represe��taii��e of Sol�#lier�� S#ates, LLC 2. Adc�ress (P�•i�xci��al Place o�Blasiness); 31G W Sabine St, Cat�tl�age, TX 75633 3. Does your caat�pany 1�a�Te an estabiis9iec� �hysicat presei�ce i�i th� St�te o�Teaas, or tlie City of Denioi�7 Yes 4. T�x Pa�rer ID#�; l 7S26G99�95 S. E�a�ail Add�•ess of Prin�ary eontact: Earl Reyi�olds, e�e �__ _�_nolcls r��eFe��red-sales.eam G, Website A�Idress: w�,��v.��referred-sales,coti� 7. Telephone: (817)6�0-&360 $, ��X: fs��sz-a�� 9. 4tlie� Loca#ions; 62� Six �lags Dx Suite 21 �, A��lington, TX 760I 1 I0. �x'��i�izfltiox� C1�ss: Pai�tnersl�ip I��div�cival Ca� arsition Assoeiation 1 l, l�ate Establisliecf: I981 12, Forme� B�isiness Na�e: 13. Da{e a�'D�ssolt�tio��: 14. ��bsiciia�y nf S�=��rlink CQiporation 15. iIistoricall�t Under�tilizecl Bttsit�ess: Yes oz• Na l6. Pr�ncipa.ls a�icl Officex•s: Please det�il responsi%ilities vvitl� ilie ��e of eacl� pz•incipai or of#icei�. l7. �ey �'e�•so�inel and Respoj�sibilities: Eacl Relmolc3s; Vice Ptesident Please det�il ��espoi�si6ilifies ti�itl� the ��ame of eaeh kc�=�erso�inel, RFP 5071 PAGE 42 OF R�P #507� Page 21 flf 22 Exhibif C CITY OF DENTON SUPPLY OF �LEC'1'�C U'i'IL�T� G9kV & 1381cV �UBSTAT.ION �SWITCHES i 8. Nun��e�• flf Pe��soiu�el €�J' DiSCi�}�lll�: Diseiplitie N��i�ber of Staf�F #� Registe��ed 19. H�s your cotn�any �1�2i� Ol' d�Cil l]c�lileCl lll Afl� �I�Ig&klp2l IIlYO��711i�, �7ou�' COIIi�.7c�Clj' A[1CI ��1� Owner o�; a c��aet �s�ifl�i�i the l�st f�e years ��ncier yoi��• cucr��it co�7ipan�r ��anie or a��y othe�• co�aipany ��ame? If so piaytide d�t�ils of tl�e issues and iesolutio�� sf a��ailable. Iiacll�c�e la��s��i�s ��rl�e��e Own.e�• ��Tas in��o�zfed. No 20, Please p��ovitle at least (3) three refe�ezices (pf�efe��ttlxly ttttt�tici,�xr/ifies) and cant�act amo��ts, Tnclt�c�e �roject desc�•ipiion, coi�tacf names, positiofi, a�zd o�'€;c�1llZ�tiD1212c�.1I28 c�11C� �eleplione number for eacl� refet•e��ce listed, See �1.ttacl�nent F. 2t. Have you ev�r ciefaulted c�ii nr failed #a co��iplete a confraci «iide�� you�� cur�•ant co�n�a��y i�ame o� a�xy o#hei• cof��a��y nanle? Tf so, tivhere and �Jhy7 Give iia�3ie ai�ci tele�I�one �iun��ez of Owner. No 22. Have you ever liad a coi�tract termi��atec[ b}� t1�e Ow�ier'? I� so, u�l�e�•e ��zd «=hy� Give naru� �nd teleplia�ie tiutz�f�er (s) n� Owiier (s), No 23. Has your eo�}�a��y iin�lement�d a�� E��plo�ree Hea1t�1 and Safet�r Progra�l� cotii�tia�it witl� 29 CFR 1910 "Geiierai I��c�ust�•S� �t��iclards" and/ox• 29 CkR 192d "Ge3ieral C€��istr�ictioi� Standards" As tl�ey ap�iy to yot��• Compai�y's ci�ston�acy acti��ities� No littp://wwwv.os}�a.�o�Jlt�lslosf�a�v�bfo�vasrel�,se�i•c}� for��i?p doc tvUeµST ANDARn�&n tac levei=l&�ke�7v�.Iti�-�92G RFP 5071 PAGE �3 OF F2FP #5f}71 Page 22 of 22 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF 69KV AND 138KV SUBSTATION SWITCHES FOR DENTON M[_JNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FLJNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5071-SUPPLY OF ELECTRIC UTILITY 69KV AND 138KV SUBSTATION SWITCHES AWARDED TO SOUTHERN STATES, LLC 1N THE NOT TO EXCEED AMOLJNT OF $5,850,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of electric utility 691cV and 1381cV substation switches for Denton Municipal Electric in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP N [_JIVIBER CONTRACTOR AMOUNT 5071 Southern States, LLC $5,850,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or pernutted to be performed by the City of Denton under the RFP 5071 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNg'ER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ____ ��'"��---.� --�� BY: �-ORD-RFP �071 tl�'µ111"'II,"!;ntl*II IIu �'"h�,j!„tl;"II Iltl� ;'q II""� AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Phil Williams at 349-8487 ACM: Bryan Langley ��+'� SUBJECT Consider adoption of an Ordinance accepting competitive proposals and awarding a contract for the purchase of polymer insulators for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5075-Supply of Polymer Insulators awarded to Techline, Inc. in the not to exceed amount of $590,000). The Public Utilities Board recommends approval (6-0). RFP INFORMATION Denton Municipal Electric (DME) has transmission line, distribution line, and substation projects approved in its Five Year Capital Improvement Plan that will require installation of polymer insulators. Polymer insulators are used to isolate electrical conductors from ground potential. 138kV and 25kV polymer insulators of several different types are required. Polymer insulators are constnicted with a fiberglass core and a silicone nibber exterior. The insulators have metal end pieces for attaching to stnictures, bus, or conductors. Orders will be placed based upon proj ect needs. Request for proposals were sent to 217 prospective suppliers, including two Denton firms. In addition, specifications were placed on the Purchasing website for prospective suppliers to download. Four proposals were received. Proposals were evaluated based upon published criteria, including price, delivery and probable performance by the supplier. Techline's proposal provided the highest evaluated score, resulting in the best value for the City. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 12, 2012, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve a one year contract, with four renewals, with Techline, Inc. in the not to exceed amount of $590,000 over the potential contract term. Agenda Information Sheet December 4, 2012 Page 2 PRINCIPAL PLACE OF BUSINESS Techline, Inc. Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT The initial term of this contract is for one year ending December 4, 2013. The City and Techline, Inc. shall have the option to renew this contract for four (4) additional one year periods. FISCAL INFORMATION The costs for material purchased under the proposed agreement will be funded from project accounts on an as needed basis. The worlc proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission Transmission Cost of Service Program (TCOS). EXHIBITS Exhibit 1: Evaluation/Ranlcing sheet Exhibit 2: Draft Public Utilities Board Minutes Exhibit 3: Contract Respectfully submitted: � �� Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1-.�IS-File �07� E�ibit 1 RFP #5075 Evaluation Polymer Insulators November 12, 2012 Supplier Techline, Inc Irbv Irbv Wesco Estimated Estimated Estimated Estimated ITEM EST. Delivery Delivery Delivery Delivery # �N Description Manufacturer Model # Unit Price Extended Price �� Unit Price Extended Price �eeks Unit Price Extended Price �� Unit Price Extended Price �eeks QTy axo� �o� axo� axo� 1 250 Insulator, Braced Post OMo Brass BLP058F12000 $329.55 $ 82,387.50 10 $330.00 $ 82,500.00 10 Assembly MacLean B211070XL99D $ - $ - $338.00 $ 84,500.00 6 $368.54 $ 92,135.00 6 2 150 Insulator, Deadend OMo Brass 505006452010 $92.02 $ 13,803.00 8 $9225 $ 13,837.50 7 (50,000 #) MacLean 5248083FX01 $ - $ - $9930 $ 14,895.00 6 $10831 $ 16,246.50 6 3 24 Insulator, Post OMo Brass P25005850030 $241.44 $ 5,794.56 14 $242.00 $ 5,808.00 14 MacLean H211070VX15 $ - $ - $272.95 $ 6,550.80 6 $297.75 $ 7,146.00 6 4 �2 Insulator, Deadend, 138kV OMo Brass 502506452010 $81.72 $ 5,883.84 8 $81.90 $ 5,896.80 7 (25,000#) MacLean 5148081FX01 $ - $ - $84.05 $ 6,051.60 6 $91.69 $ 6,601.68 6 5 250 Insulator, Deadend (25k� OMo Brass 4010250215 $10.83 $ 2,707.50 1 $1124 $ 2,810.00 3 $1124 $ 2,810.00 3 $1528 $ 3,820.00 2 Estimated Total Annual Cost $ 110,576.40 $ 110,852.30 $ 114,807.40 $ 125,949.18 Estimated Tota15-Year Cost $ 592 935.78 $ 594 415.21 $ 615 623.36 $ 675 368.11 (assuming 3% inflation per year & 1% breakage) ' ' ' ' Can the initial be delivered by March 15, 2013? YES YES YES YES Estimated Average Delivery (weeks after receipt of order) 82 82 5.4 52 Exceptions $5,000 min. order or add 8% freight $5,200 min. order or add 8% freight $7,500 min. order or add 8% freight $8,500 min. order or add 8% freight Terms and conditions No returns No returns or cancellations Terms and conditions All items must be awarded Item #5 is MPS #DS-25M EUALUATION Indicators of probable performance (10 points) 10 9 9 9 Delivery (10 points) 6.3 6.3 9.6 10.0 Total cost (80 points) 80 79.8 77.1 70.2 Total Evaluation Points 96.3 95.1 95.7 89.2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Exhibit 2 DRAFT MINUTES PUBLIC UTILITIES BOARD November 12, 2012 After deternuning that a quonim of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, November 12, 2012 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Absent: Chairman Dicic Smith, Vice Chair Billy Cheelc, Randy Robinson, Barbara Russell, Leonard Herring and Li1ia Bynum Phi1 Gallivan Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: CONSENT AGENDA: 6. Consider recommending approval of a contract with Techline, Inc. for purchase of polymer insulators (RFP #5075 - awarded to Techline, Inc., in an amount not to exceed $590,000). A motion to approve item 6 was made by Board Member Cheek with a second by Board Member Herring. The vote was 6-0. Adj ournment 9: 53 am Exhibit 3 CONTRACT BY AND BETWEEN C�TY OF DENTON, TEXAS AND TECHLINE, INC (RFP 5075) THIS C4NTRACT is inade a�id ent�red into t��is c�ay of A.D., 20�, by and between Teci�liiie, Iz�c a cor�oration, whose �dd�•ess is S�OI Martii� Street Ft, Wartl� TX 76119, l��reinafter referred #o as "Sup�liei•," and tlle CITY OF DENTON, TEXAS, a home r�ile �nt�nicipal corporatio�i, l�erein�.ftei• referred to as "City," to be effective upon approval of the De��ton Ciip Council a��d subsequent executio�i of tli�s Contract by the Dentai� City Managei` or his du13� a�rtiiorized desi�nee. For ai�d i�i consideratioii af the covei�ai�ts and agreemei�ts contained I�arein, and for the �i�utual be�lef ts to be �btained hereb��, the ��rties agree as follows; SCOPE OF SERVICES Suppiiez• shall pi•ovide products ii� accordaa�ce witli the City's R�'I' # 5075 Electric Utilit�� Polyn�er Inst�lators, a copy of which is on file ai tl�e office of Purcl�asing Agent ai�d incorporated l�erein for all p�irposes. The Contz�act consists af tliis writt��i agree��ent and tl�e follo�ving iten�s wl�ich are attacliec� he�•eto, or on f le, and iz�corporated ilerein by reference: (a) City of Denton's R�'P 5075 (o�i file at tlie office o� the Purci�asing Agea�t) (bj City of Denton Standarel Terms and Canditions (Exhibit "A"} (c) S��ecial Teri�ls al�c� Conditio��s (Etiiibit "B") (d) S��pplier's P��oposal, (E��ibit "C"); Tl�ese dac�iments i�iake up the Cantx•act docui��ents and what �s calle�. for by one sllall be as binding as if calted for by all. In the event o� an inconsistency or conflict in any of the provisions af the Cont�•act docui��ants, tlie inconsistejicy or conflict siiall �e resolved by givi��g pi•ecedei�ce first to the tivriiien ag��eemei�t t�aeji ta th� cont��aet daci��nents in tlle ordez� in whicli tliey a�•e listed above. These doct�n�eiits sl�all be ��eferred to callectively as "Cantract Documents." RFP 5075 Page 1 of 20 IN WITNESS WHEREOF, tl�e pa�•iies of tl�ese preser�ts l�ave execz�ted this agreeine��t in tEie yea►' at�d day fi•st above �tirritten. ATTEST: JENNI�`GR W�LTERS, CITY SECRETARY I: APPROVED AS TQ LEGAL �'ORM: AN1T� BURGESS, CITY ATTORN�Y : SUPP�,IER �� BY: AUTHORTZ�D SiGNATURE Date: �wf�Pv ��2. Na�ne: ��'�� Yt. Title; �t��C.. ��'5 ;�'�'l?� i�d f «i S-�. ��. Vt�lYV-��a ��C7�11 � MAILING ADDRESS , �� " ��Ob PHONE NUMBER �I ��.�6� W q�� FAX NUMBER ��c�t �ivre , �c . PRINT�D NAll�IE CITY OF DENTON, TEXAS BY; GEORGE C. CAMPBELL, CITY MANAGER Daie: RFP 5075 Page 2 of20 Exhibit A Ciiy of Denton Standard Purchase Terms and Canditians These stattc�ard Tea'�t�s atld Conditio»s and t1�e Terms a»d Conditions, S�eci�eafions, Dra�vi��gs a�id ot]�er �•eq��i�•ements iElcludec3 in tl�e City of Denton's solicitation are applica6le to Ca�tt�'acts/1'urcUase 4rde�'s iss�ied by itie City of De�tton 3�ereit�after ►•efer�•ec� to as the City or Bt�ye�• ai�d t1�e Seller I�erein afte�� •efer�•ed to as tlfe Bidder, Coi�t►�actor or S��pplier. Ar�y de��iations must f�e i�3 �i�riti��g and sig��ed by a represe«tative of the City's Proct�reme��t Depariment and the SEippiier, No Ter3ns anci CondiTious contained i�� tlle Sellers Proposal response, Imroice or Statement shall serve to inodify tha ternts set fo��tll herei��. If ti�ere is a coitfiict bete�reei� t�le provisio�ls oi� ti3e face of t��e Canti�actlPurcl�ase O�•der these �v�•itte�� provisio»s «�ili ta�:e precedence. By sub�nittii�g aEt Offer in response to tile Solicitatio��, the CaEit►�acto�• agrees tliat tlle Contract sl�all €�e go�erned b}� tE�e follo«�i►lg ter��s a��d co��ditions, t�►�less esceptia��s are duly t�oked and fi�lly negotiateci. Unless otE�ern�ise specified in ti�e Cantract, Sectioi�s 3, �, 5, G, 7, 8, 20, 2I, and 36 sha]! apply oi�ly to a Salicitatio33 ko p�n'ciTase Gooc�s, a�tc� Sections 9, 10, � 1 and 22 shall apply on[y to a Solicitation to pu►•chase Se�vices ta be perfo►•cned principally at tl�e City's preri�ises ar oi� publie rigftts-of-tivay. l. CONTRACTOR'S OBLIGATIDNS. The Contr�ctor s[�all fii[I}� aud timeEy pravide aEl deliverables described i�� the Soficitation and in ihe Conir�cto►•'s Offer iEi strict acearda�ice �vith the terms, coi�enants, aiid eo�iditio��s ol�the Conta•act and all applicable Federal, SEate, and local Ea«<s, rules, �nd �-egulatio��s. 2. EI'RECTIVE DATEITERM. Un�ess othe3•n�ise speci�ed in tlie Solicitation, this ContE�act sh�[l be eifective as of tl�e date ti�e eontraet is signect b�� the Cily, a�td si�all conti�iue i�� effeet antil a11 obligatio��s are perFori�iec� in accordance i;�ith thc CoE3traci. 3. CONTRACTOR TO PACI�AG� DELNERABLES: The C€�nir�cior ��itl �ackage deli��erables in accordance �i�itl� good co�izme�•cial ��raeEice and sh�ll i�iclade a packi�ig iist sEio�i�ing the description of eRCh item, the q�iaitt'tt�� and uitit �rice unless oiher��ise pro��ided iii the Specifcatioi�s or Supple�iteutal 'I'erins a[�d Conditians, eack� shippi�ig contai��er shall be clearly and peE•�nanently ma�•ked as E'ollo�s�s: (�) `�'he Conlrlctor`s nan�e ��d �ddress, (b) the City's name, add�•ess aE�d purchase order or pa�•chase reiease numbe�• a��d the price �g3•ee��ent Eiu�nber if ��pplicablc, {c) Container ntunber and tota! nu��ber of co�itaine3•s, e.g. box 1 af � bores, anc3 (d) tlie nu�i�6er of #he cont�iner bearing the packing list. Tl�e Cantractor shalt bear cost a�'pac[:agi�ig. DeliveraUles sl�all be st�it�bly �}�c�;ed to secure lol��est trans�o�-tatian costs and to co��l'o�•in ta all ll�e rec�ui�•e�i�ents of com�non carriers �nd �nJ� a�}�licablc speci�catian. The Cit}�'s count ar ��eight shali be f nal and eoc3clusive on sliipn�enls �3ot aeco�itpaniec� by packing [ists. 4. SHIPMENT UNA�R RESERVAT14N PROHTT31'�'�b: `I'lie C;antracto3• is not authorized to ship i}�e delive��ables u�ider rese�•vatioE� �nd na 4e�ider of a bFll of lading i��i[I operate as a te�idcr of defi��erables. S. TITLE & RISK OT I,OSS: Tit[e Eo and ris� oflass ofthe deli�rerables sltall pass to tE�c Cit�� onl�� „�hen the CitJ- actually receives aiid aecepts t�ie deliverables. 6. DELIVERY TERIISS AND TRANSPORTA'I'I�N CRA,RG�S: Deliverables st3a11 be ship�,ed F.O,F3, point of deli��e�•y Em�ess oQteE•�S�ise s�ecified i�i tlte Supplen�eE�tnl Terms a►�c[ Co�idit�ons. Unless othe��tii�ise stated in the Offe►•, tlie Contractor's }�riee si�al! be deei��ed to i��clacie a!1 cielivery and trai�spariation eharges. The Gity si�all have tlie right to design�te n�hat �nethod oftransportation shall be uscd to ship ihe cEeliveraUles. The plaee afdeliver�� sha�l Ue tltat set fo�•th tlie �urchase order. � 7. RIGHT OF INSPECT[ON AND REJECTION: Tl�e City espressl5= �-escr��es atl eights under EaE��, tIIC�EICI[Ilg, but not li�nited #o the Unifo3•i�� Co�»��ercial Code, to ins�ect tiie deli��erab[es �t deli��ery hefore accepting the�it, a�td ta rejeet defecti�=e or no��-eonfn�•mii�g deli��erables, If tE�e City I�as the rigl�t ta iE�s}�ect tlic Coi�tf�acior's, or the Cc��th•actar's Subcantracto�'s, lacilities, or tiie deliverables �t the Cont�•actor's, or E��e Cont��actor's Subeontraetor's, p��emises, the Co�ita•actoj• sl�all fi�E•i�isk�, o�• cause to be fiirnished, is�itE�out �dditio��al cliarge, �ll reaso��ablc faciiities ancE assistance ta tlie City to ficiiit�te such ii�s�eetion. RFP 5075 Page 3 of 20 8. NO REPLACEMENT OF DEFECTIVE, TENI3ER: Every te�lder o►• delivery ofdeli��e��ables ��iust fully co��ply t��itl� �l[ pro<<isians of thc Contract as to ti�7�e of delire►•y, gi�alit}�, a�id qtEantit3�. �1ny non-co�npl3�ing tende►• shall coitstit�te a breach a�id tl�c CoE3tractor shall nc�t h�ve ihe rigl�t tn substiti�te a conforn�ing tender; p3-ovided, �t�here t13e tiine for perfo�•�nancc has not yet expired, the ContE•actor ma�� notify tE�e City of the i�itentiou to cure and �nay tl�e« �tt�I�c a confo►•i��ing tender �s°ili�i�� the tinie �llotted in the contc•act. 9. PLACE AND CONDITION OF �VORK: The City sl�all provide tl�e Contractor access to the sites n��ere the Conh•actor is to ��erfor�n the ser��ices as reqe�i�•ed in order lor tlze Co�itE•actoc• to pe�•for�7t the services in a ti�7�eEy° and ef�icie�it manner, ii� accordanee �s�ith a�id si�bjeet to tl�e ap�[icable secarit�= la«�s, c•ules, and regulations, `i'l�e Co�itractor ack►�o�`rledges tltat it has satistied iiself as to che �ta#fi��e of the Cit}='s service require�nei�ts aE�d specifications, ti�e lacatinn a��d esse��tiaf characteristics of' Ehe ��ark sites, the c�uaiity �nd qi�aniity af vtatea�ials, ec�t�ipmeE3t, labor and facilities necessary to perfarEn the se►�vices, aiid any oll3er co��ditian o�• state of fact �vliich cotEld in an�� a}� aftect }�erformance of ihe Co��t�•actor's obligations ander tiie co��ir�ct. The Contractar herel�y �•eleases aitd holds the City I�arEnEess fi•o�n and ag�tinst any [iat�ility or claim fo�• damages oi'any kii�d or nat�n�e iftlie actual site or service eonditions differ �i•om expected conciitio��s. I 0. R'ORKF�RCE A. TE�e Cont�•actor shall empiny oE�lp ordcrly and earnpe€ent �ro3•kers, skilled i�� ihe perfo��n3ance of Ehe services ��l�icli they `ti�ill �erfor�n uroder the Contrac#. B. The Contractor, its en3ployees, subcontractors, and suUcontraetor's employces n�ay not �t=hile engaget! in pa��ticipating or responding to 1 so[icitation or «�hile in tk�e eourse ��d scope of deliveri��g goods Qr serriees under a City of De��ton contr�ct or on ti�e CitJ `s prope�-ty . i. use oE• possess a�rearm, includi��g a catzcealed ha��dgu�� that is ]icensed ander state laE��, except as required by thc te�•ms of the co�riE•acl; or ii. �ase or possess aEcohoiic o►• ather iE�to�icati�3g 6e��erlges, illegal drugs o�• controlled subst��ees, nor utay sucli �i�oE�kers be intoxicated, or under the influence of alcohol or drugs, on t[�e job. C. if the City or tlie Cily's represe�it�ti<<e notifies tl�e Cont�•actor that any ivorker [s incoinpetent, disot•derly ar disabedient, has [:no�a�i��gly or repeatedly violatecf safet}� reg��facin��s, has possessed �n}� frean��s, or l�as �flssesseci or ��as under tlic influe��ce of alcohok or ctrugs on the job, tl�e Contr�ctor sl��li iinmedi�tely remove siich �ti�orkcr from Co��t��ack services, and �t�ay �iot empioy such �i�orke►• agai�� o�i Contr�ct se�•��iees «<ithout tl�e Cit}�'s prior «�ritten conse��t. Immigrafion: '1'lic Contraelar E•ep�•esents ��d �S�a��rinEs tl�at iE shaEl eon�plJ� �i�ith the require�nents of the Iu�i��ig�•atio�i Iteform and Co3iti•ol Aci of 1986 and I 990 regarding e�nplo��Enent ve3•ific�tion ancf retei�tio�� of i�erificacion for��ts for a�y iE3di��id[�als hired on or after No�=eii3ber b, 1986, �v1io �ti�ill perfo�•n� ��y l�bor oE• ser��ices i�ncfer the Con#c•1ct and the II[egal In��nigration Reforn� and lmmigrant Responsibility Act of 1996 ("IIRIRA} enacted on Septe�nber 30, l 996. 11. COMPT.IANC� �VITH H�ALTH, SAFETY, AND E1�fVIRONM�NTAL REGULATIONS: The Contt•�tctoE•, it's Sabcontraetars, and theiE• c•espective employees, s1�a11 eo��ipE�� tul[y ��ith all applicaUle f'ede3•al, state, aitd lacal 1�ealEh, safety, and en��iro��nental laws, ordina��ces, riiles ai�d regulafions iE3 the peE•1'ormai�ce of the serviccs, i��cluding 6ut not limited io ihase p►�aEnulgated b�r the City and by the Occupational Safety �nd Ilealth Ad�ninist�•�tior� (OSI�A). In case of�co►�flict, the it3ost stri�igei�t safety ret�E�ireEne�it shall govern, `I'lie Conta�acTor sl�al[ i�ic�emnify aE�d hold the City ItarEnEess fi•a�n a��d against all claiins, demands, suits, actions, judgcnents, Fines, pe��alties a��d liability of c��ery ki�id a�•ising fro�» the breaeh of t1�e Con4racto�•'s obligations under th,is paE•agrapi�. Environ�ueutal Proteefion: "I'he Respondent si�ali Ue in co�up[ia�ice n�itli �ll a��plicabte standards, orders, o�• regulalio�3s issueci pi3�•si��nt to the �nandates oftlie Cleai� Air Act (�2 U.S.C. �740f et seq.) and the Fecfe��al �i7ateE• Pol�ution Co��trol Act, as aine�ided, {33 LI.S.C. ; E 25 ] et seq.}. 12. INVOICES: A. Tlie Co��tE•actar sE�all submit separate in��oices in du�licate o►� cach pu�•cliase order or ��urcl�ase rcleasc after caci� dcli��ery. lf �arEia[ ship�nenEs or deli��ea•ies are �atEiorized by the Cit}�, a sep�ratc im�oice Enust i�e sent �'oE• e�c}3 sl�ipment or deii��ery �nade. B. Proper Invoices �nust iuclude a miique im�oice nu�nber, the �su�•chase order or deli�ery ordei• nu�i�ber and the ��astez• agreement number if �pplica�le, the Depart�nent's Name, and ti�e uav3e of the point of contact for ihe De��artment. In��oices sltatl be ite�nized aitd transpo►•tatio�i RFP 5075 Page � of 20 charges, if ��ry, sl�all be listed sepaa�ateiy�. A co�y of t��e Uill of fading a��d tl�e f•eight �e�ayhili, ��hen ap�licable, shalt be attaelied to tl�e ii�voice. The Ca�3iE�actor's name, �•emitta«cc address an€i, if applicab[e, tl�e la� identificatian nun�ber on the im�oiec must exactly matcl� the i��for�»ation i�� tl�e Ve��da�'s registration �viti� the Cit}�. ilntess othern�ise i�ist�•ucted i�i ��riling, ll�e CiE�° m�y E•e13r on tE�e remittar�ce adc�ress s�ecifiec� on tE�e ContracEor's invoice. C. lE�i>oiccs fo�• labor shall include a co�� oi all time-s[icets �i�it{� t�•ade labor rate aiid de[i��era�les order ituniber clearl5� identified. im�oices sE�ali afso iiicitide a tabula#ioEa pf «�ork-fiours at the app�•o�riate �•ates and groaped E�� vork arder nu�nber. 'I'ime bifled fot• la6or sh�tll be Ei�nited to hours aettaalEy ��or�ed at tlie «�orR site. D. U�31ess oEherta�ise eap�•essly suthorizecf i� the Contt•act, tlie Cotatractor sl�all �ass tl�rough al[ SUbcontr�et a��d other autho��ized expe��ses at aetua) cost «�itl�out n�arE;up. L. Pederal e�cise tares, Stalc taxes, or City sales ta�es must �ot be inciuded in tE�e invoiced ainount. TE3e City �a�ill furnish a tas e�emption certifieaEe u�on rec�uest. 13. PAYMENT: A. A[l E�ro��e�• i��oiees need Eo be senY to Aecoitt�ts Payab[e. Appro��ed in��oices ��ill be paid ��ithin ti�ir[�� (3D) calei�da�• days of TE�e Cit}-'s recei}�t of the cfeiiverables or of the in��oice t�ci��g �•ecei��eci iE3 AceoE�nts Pa��ble, ��hicl�e��e�• is lale�•. B. If pay►uent is not timeIy ma�le, (��ei' pAYRgCRp�l A�; intea•est shali accrue on tl�c unpaid Ualavice at tl�e �esser of the rate speciCecl in Texas Government Code Section 2251.025 oa� tl�e �xaaximum lawful i•ate; except, if paymenf is not timely made for a�•eason for which fhe City may wif�Lold payment t�ereundcr, intc;'est shalI not accrue uirtil ten (IU) calendar t�ays after tLe grouuds for wifhhol�iing paymcnt l�avc liecn resolved. C. lf paE•tial shi��menis oE• deliveries �E•e ��thorized bp Tf�e Cify, the Cantractot• �i�ill be paid foc• the pa��tial sf�ip�nent or de[i��ery, as stated �bo��e, pro��ided tE�at the invoice n�atches the shi�ment o�• deli��ery. D. `1'he Cit}� may �vithi�old or set ofi'the en[ire �ay�nent o►• part of any pa��me�it other��ise da�e tE�e Cantractor to sueh e�tent as �nay be �iecess�ry on accaunt of: i. deli��ery of defecfii�e a�• ��on-co��forEni��g c�eli<<eraisles by tlie Cat�tractot; ii. tfiia•d part5� claims, ��E�ich aE•e ��ot co��ered by- the insu�•anee ��hich tl�e Co��tractar is rec�uired to prot�ide, a�•e iilect o�• reaso��ble e��idence indicating p�•oE�able lili��g af such clai�i�s; iii. failure of tiie Contractor to pay St�bconh•actors, or fo�• laf�or, n�aterials oi• cqE�i�ment; i��. damage to the property of the City or ihe Cit}�'s age�3ts, en�pEo}�ees or caait��actors, ��hich is not covered b3� inst�c•ance required to be prot�ided by the Cantr�cta►•; ti�. reasonable et>idence that the Contractor's obligations �i�ill not be cot3ipleted t��ithi�� the ti�ne specifed i�t tE�e Co��Eract, and tE�aE tl�e ��aid baE�nce n�ac�ld nat be adequate to cove�• actual or lic�uidated dantages far the anticipated dela�; vi, fail[�re of the Con€ractor to subri3it �ro��ei• i��vaices �i�itii �i3rel�ase order numt�er, E��ith �11 rec�uired a[tacl��ne��ts �nd st�}�po�•ting documentation; or vii, faiiure afthe Contractor to co�npi}� n�ith �ny �n�tej•ial p�•o��ision ofthe Contraci Dac�ments. F,. Notice is liereby give�� ttaat any a�i�arded fir3�i «�ho is i�� ar�•ea�•s to Ehe Ciiy of Dento�� foE• delinq�ient taxes, thc CitS� ma}� oli'set indebtedness a«�ed ti�e City through payment �a�ithltolding. P. I'a}�ine�tt n�ill be made by ehecl; �nless the pariies muti�ally ag�•ee to payn�ent by c3•edit card ar electronic lra��sfer of fu��ds. 'I'he Cancractor agrees that ilie�•e sha(I be no additional cl�arg€;s, stn•cha�•ges, or pe��alties to the City for pa��7�ents �nade by c�•edit card ar e[ech•onic fi��ds tra��sfer. G. The a«arding o�• conti��uation of t��is co��tract is dependent upo�� the a��ailability of %�aiding. The Cit��'s p1��me��t abligations are payabfe onl�� and solc{y �i•otn funds Appropriated a�ia at�ail�€��e for this contraet. `iE�e absence af AppE•opriated or ather la�a-full}' avaiEai�le ii��ids shall rendee the Cantract null a�id ��oid to tf3e e.r•teni func�s �re not AppE•oprilted or a��aiia�le and 1ny delii�er�bles delitrcred bi�t uc3paid sliatl be retuE��ed to the CoEitc•actor. 't'he City shall pro��ide tlie Cot�tracto�• ��riEte�� iotice of the failu►�e oE'tlie CiEy� to Enake aE� adec�►�ate r1p�,ropE�iation fo�• a�ry fiscal year to �� the amounts due under the Co��tract, or the �•cductian of any Apprapriation to an aEnount iitsufficient ta peE•init tl�e City to p�y its obligations tiE�der tlie Contrael. In il�e ever�i of no�ie or i��adec�t�ate appropE•iation of funds, iliere �a�i[l be no pen�ity nor re��€��r�l fees cl��rged to tl�e City. 14. TRA'�T�L ElP�NS�S: All tr��el, lodging aiid peE• dient e��eE�ses i�t coE�ncctiatt tti�ith the Conts�act sl�all be paid b�� tlte Contractor, unless ot��erw�ise stated i�� the co��tract teE•�i�s. 15. T'II�AL 1'AYM�IV'1' A1�ID CLOS�-OUT: RFP 5075 P�ge 5 of 20 A. If a BBE/MBEI�I'�3F., P��ogrart� Pl�r� is agreed to arod the CantractoE• 3�as ide�itiGed Subcn��traciars, the Contractor is required to sabmit a Co��lr�ct C[ose-Out IviI3i;11t'L31; ConTplianee 9tepori to ihe P��rci�asing Manage�• no 3ater tl�a�� the 15th calenciaE• day af7er eo�t�pEetioE� of all �i�ork under the contract. 1�iE�al �ay�T�ent, �•etainage, o�• batl� inay be ��itl�l�eld if the Contracta►• is ��ot in cornpliance ��iif� the E•equirernenis as accepted b�� the Cit��. B. TE�e n3a[:ing ancE acceptaj�ce of fina[ pa��7�er�t n�ill co��stitute: i. a«�aive�• of all claims by ilie City agaii�st tl�e Contractor, e�ce�t c1ai�7is (1) «�hicE� have bee�i p3�evioasl�� asse�•ted in �v��iting aE3d not yot seTtled, {2) �rising fi•o�i� defective i��or[: ap�earing aftcr fina! inspection, {3) a�•isi�zg fi�am 1'ail��re oFtl�e Contractor to co�i��fy �s°ith tl�e Contr�et or if�e Ee��rns of'any �;�arranty specilied herein, {�} arising frotn the Contraetor's c4ntinu[ng oi�ligatio��s under !he Contract, i�clUdiitg but not liit�ited ia indemniEy and 1i'11'E'c�lll)' 0�1�1g�llF0E15� Ol' €$� �l']SIEI�' il[iC�CI' ��1C Clt}''S 1'I�f3l f0 a[IE�II� ft11C� 11, c� 11=aivei� of' all elain�s hy l}iC C01ltE'c�Cf01' against the City other than those �reviousl�� assertcci i�t E��•iting anct not yet settled. 16. SP�CIAL TOOLS & TEST EQUIPIl�ENT: lf tlte pricc st�iied o�3 the �fier includcs tl�c cost of �ny s�ecial tooling or special test ec�uip3��ei�t faE�ricated or rec�tii�•ed by t��e Cantractor for tl�e purpose of filling ihis ordeE•, sEict� specia) tooling ec�ui�me��t and airy ��rocess st�eets rel�ted tlteretn s1�a11 become the p�•ope�•t�� of tl�e Cit}� and sl�all be ide�iti�ed b}� tE�e Confraetar as sucl�. 17. RIGHT TO AUDIT: A. "1'i�e City shall E�ave the rig[�t to audit and a��al:e copies ofthe books, recaE•ds a�ic€ co�itputations pertaining to the Co��Iract. Tl�e Ca��tractor shall �•etai�� sucl� boaks, �•ecorcfs, documents and oEher e��fdence �ertlini��g to the Co�ih•�ct period and five yelrs t1teE•eafter, e�cept if a�� si�dit is in progress oE• audi! findings are yet u��resol��ed, in ��hich case records shalt be kep! �ntiE a[I ae�dit iasfis are con�pleted 1nd resolved. Tl�ese booi:s, records, docainents �nd other evidence shail be avail�ble, �R�ithin ten (Ifl) basiness days of written rec��iest FuE•theE•, the Contr�ctor sh�il also rec�Uire �11 SubcontE•actocs, m�teriat sE�ppEie�•s, and ott3er �ayees to �•etain �11 books, recards, docwnents aiid athe�- evidence ��e�•tai�iing ta ihe Cant�•act, aaid to al[o�� ihe City sienit�r access Eo those docun�ents. AIE books anc� records ��ill be �nade a��il�ble �i�ithi�3 a 50 �nile radius o}'tlie City of Dejito��. TE�e c€�st of the audit ��itl Ue borne b�� tl�e City unless the at�dit reveals an o��ergayment of 1% or greater. If aE� o��er�aJ��7�ent of I% or gre�tei• oecars, the �•easonabla cost of the audil, including a��}� h•avei costs, Enust be bo�•iie [�� Ute Co��iE•actor ��I�ich must E�e ��ayabie �i�ithin ti��e (5) baisiness days o#'i•eceipt afaE� invoice. B. Failu�•e to co3i�ply �;�ith the pro��isions of tl�is seetioji shall be a�7�aterial bE•eacli o1' tl�e Contract and shalE constilute, in the Cit��'s sole diseretio��, grounds for ter�i�ination iliereof: Eacl� of ihe le��Ens "t�ooks", "records", "ciocume��ts" ai�d "otl�e�• evidenec", as used above, sltaEl he constraed to i�icludc drafts a��d eEectronie �les, e��en if sach dr�fts o�• electronic ti�es are sabseque�iily iisect to generate or pre�are a iic»] �rinted doc��me3it. 18. SUBCONTRACTORS: A. If the Conlractor ide��tificd Subcc,ntractars in a I?BL/Iv713�:/13fI3E agreed to Plan, tlie CoE3fractor slta[I co�npiy «�itl� a[1 E•equireinents appro��ed b3� the Ci#y. The Contrac#or sl�atl not initially emplo3� any Subcontraeto�� exce�t as prA��fded in the Contractor's Plat�. The Ca��t�•actor s13a11 not subs4itute a�ty 5ubcouteactar identi�'ied 'ui tE�e Plai�, un[ess the substitute }�as l�een accepted by the City in �i��itiE�g. No aceepta«ce by tlie Cit}� of an�� Si�bcontractor sha[1 coE�stitute a«�ai<<er Of �t3y rights or reenedies of tiae Cit�= n�itl� respect to defecti��e delii�e�•abtes p�•pvided by a Se�bcontractor. If a Plan has been ap��roved, tlie Contractor is addi#ionalfy rec�tEired to s��b��it a ntoE�thly Subco�itract A��ards and Fxpendilures Report to tlie Proctirernent ]blanager, r�o later than the tenth cale��da�• day of'eac� E��o�it1�. B. «Torfi performec3 �'or ti�e Cont�•acEo�• by a Subcontr�ctor shal! be pt�rs�iant to a�S�ritEen eo��tract betE��een thc Contractar and Subcontractar. Tl�e teri��s af the sut�co�ttract n�a�� iot co�flict �vith tlie teenis of tl�e CantracE, and sh�[l contaiE3 p�•ovisions chat: i. re€�uire tliat all dclivera�fes to bc pro�ric€ed by tl�e Subconiracto�• be �rovided i�i strict accordance �s=ith the �a��ovisians, specificatio��s ��id ter3��s of t1�e Co�uract; ii. p3•o[�ibit the 5t�bcontr�ctor ii•ain iu�•tlier stibcontracti�ig an}� po►•tion of tl3e Ca��Fraet ��itE�oEit ihe ��rioE• l�rritten consent of tlte C'it�� and tiie ConU•aclor. Tlie City �na�� require, as a eonditioi� to suclt furElreE• siiUcont�•acti�ig, t[�at the Subconlractor posT � payment h€�r�d in form, substance and ait�oiint �ece�t�ble ta the City; iii, rec�Uire SEibcont�•actors to suE�miE all im�oices and applicatiai�s fo�• �a��ments, including aity cl�ims for additional ��a��nents, damages or olhens�ise, to ll�e Contraeior i�� snfficie�it tiine to eE�ai�Ee tl�e Contrac[or to incli�de san�e �t�itl� its i�n�oiee or application foE• paymeitt to t}�e CiE�� i�� accorda�ice ��iih tlie ternis of il�e Co�tlract; i��. �•equire that all Subcontractois obtain and �nai�itain, [ln•oughoiit ihe terni oi'their co��tract, lE]Sill'�iI1CC lll il�e type and a�vounts specified fa�• the Cpnt►�actor, �t�ith die Cit�� E�eiug a�iained i�isured as its inte��esF shall app�ea��; and v. E•ec�uire t}��t ihe S��l�coE�iraetor inderonify anc� hofd ihe CitJ� I�aE�n�less to fhe sar��e e�lenE as the Co��tractor RFP 50'75 Page G of 20 is req�tired #o inden�nil}, E}�c Cit}�. C. The Coni�•aetoE• sliall be fu(IJ= �•es�onsible lo tlie City for all aets a�id o�nissians of the Subcontracto��s just as tl�e COEiiE'RC101' IS I'�S}}0115[�3�C FOI' tEle CDI1ll'c�C101's o�i�it acts and o�nissions. NotE�ing in tlie Co��Er�ct sltaEl ereate for tE3e be��efit of an�� stiel� Sui�contractor an�� coE�U�aeti�al relationship bet�ti'CeE1 L�]e CIr)' alld i[E7)' SFIC�I SUUCO]1LE'�iCIOI', E]Ol' sl�all it cE•elte any obligation on tE�e p�rt af the City to pa�= ar to sce to tlie pa}�Enent of an}° n�one��s due an�� sticlz Subcontracto�• e�eept as i��a�� other«�ise be ��ec�aired by 9att°. D. The Contractor sh�ll pay eac1� SubcnntracEoE• its appropriate share of payments n�ade to tt�e Co�itraetor not later than ten (] 0) calenda�� d�ys after receipt of pay��tent from tlie Cit}�. 19. �VARRANTY-PRIC�: A. The Coni[�acior i��arrants the prices c�t�oted it� tl�e Of'fe�• are no higi�er thart tl3e Contractor's etu•re�it prices on ordcrs by oEhers i'or li[:e deli�=erables under simifar terEns of p�irchase. B. Tlie Coi�lE•actor certifies tE�at tlie prices ia� tk�e O€fee have been arri��ed at independe��tly �vithout co�3sultatian, com�nunieation, oc• agreemeE�t !'or ti�e purpase of restrieting ca��petitio��, as to �c�y i��atter relati��g to such fees �vitk� any otlicr firn� or «�ith an�� co�7ipetitor. C. Tn addition to any otl�er remed�� available, the City ntay deduct front any �n�oimts owed to t1�e Coi�tractor, or otE�er�i�ise recover, any amou�rts paid fot• items in etcess of tE3e Co�itraetor's c€ar►�er�i prices on o�•ders b5� otliers for 1i�;e delit�eE•ables ��de�' sin3ilar ternts of�uE'cltase. 20. V4'Al2TtANTY — TITI,�: "ihe Contractor �t�arranEs tha! iE I»s good aitd i�idefeasible title to all delive3�ables furnished Undec• the Gontract, and tliat the deiiverables �E•e ii•ee and clear of all liens, clai�ns, secu�•ity inteeests at�d ei�c�m�bra��ces. The Contractor s�iall i�icfemnify and ho[d the CiEy harmless from and against �lf ad�=erse title elaims to ti�e de[i�=erables. 21. �VARFtA1�iTY — A�I.,IVERABLES: The Cantractor E��a�•rants aE�d represe�3ts tltat all deliverables sold lfte City uE�der the Co�tEract sl�al[ be fi•ee fi-ont defects in desigj�, �vorkEnai�ship oE• i��anufactuE•e, and co�iform i►� alE i��tcrill respects ta tl�e specificatioi�s, da•a�a°ings, and descE•i�tio��s in the Solicitation, to an3� samples fur��isl�ed b}� tl�c Contractor, to the ter�ns, cove��ants aaid conditio��s of the Contracf, and to a[1 applicable State, Fedeea� or l�cal IaS��s, rules, and regf�lations, a�id iraciustcy codes ��d standards. Unless o€l�ern�ise stated in tlie Soiicitatioi�, clte deli��erables sha[I be neti� or rec��c[ed merchandise, �nd noE ►ased or reconditioued. A. Reeycted detiverablcs sl�all be elearl�� ideniitied as such. B. The Contractor ina�� not lin�it, e�elude or disclaii�3 the fa�•egoie�g ��arra�ity ar aE�y E��a�•raniy ii��plied b3� Ia�S�; �E�d a�3}� attee�pE to do sa si�al! be �i=ithout farce or eff'ect. C, UE�less other��ise specified in the Co��tract, tl�e �varranty peeiod sl�all be at least a�e year fi�om tlie datc of acceptance of the deliverables or fro3ii ti�e date af acceptance of an}� 3•eplacen�ent deliverables. i�during tl�e «=a�•�•anty- �e��ic�d, o��e o�• more of the �bo��e „��•ranties aa•L hreached, the Coc�tracta�• shal[ E�ront�atly ��o�� ►•eeeipt of de�ita��d eitheE• �•epair the nfln-confor�ni�� deli��erables, or rep[ace tlie nan-co�3fo��ming deli��erables �rith iEil[y conforming deli��erables, at the Cit��'s optio�� and at ��a addi#ic�nal cost to ti�e City. Al{ easts ineidc��tal to sucl� E•e��ir or re�lace3ne��t, i�ieluding b�it not li�nited to, any packaging ac�d sl�ipping casts shal! be borne exclusivefy �5�� the Cont��actor. 7'he Cit�� shatl endeavor to give the Cat�teactar �i�ritten nc�tice af the breaeh ot' �i�arra�it5� ��ithin tl�irty (30} calenda�• d�ys of disco��ery of tl�e brcacl3 oi ��rarranl��, huE failure to give tin3ely noticc sha[1 not impair the City's rigl�#s unde�• this sectio�t. D. If ihe Conir�etoE• is t��3a�[e or t�nr�=i1li�3g ta repair oE• rcpl�tcc defective o�• no�-caE�forir�iE�g deli��er�bles as required l�y the City, then in addiEioE� to an}� other avaiiable recaiec�y, tl�e Cil�� it�a�= reduce the q�ia�itity of deli��erables it Enay �3e 1'e(]lUE'e� t0 �U1'C�135C E111�eP tll� COI1lF'�Cl F1'�1I1 1�1C CO[7iE'�iC101', a�id purchase coE�forn�ing deiivej•ables fi•o�n otlier sources. in sueE� event, tf�e Contc•acto�• sha[l pay to tE�c City u�o�� deEnaitd tE�e iE3ereased cost, if an}�, incuE•red by the Cit�� to p�•ocure suclt delit�erables fi•o�n anotl�ei• soi��•ce. F,. if'thc Co►itractor is not tlie m�r3ttfneturer, and #t�e deli��eE•�bles �re covered vy a separale ��a�iufacti��•er's «�ar�•a�it}�, it�e Cocitractor shall iransfer ar�d assig�i sucl� �naE3ufacture�•'s ��ar�•�nty ta t3�e Cily. lf for any reason the inanufactm•er's �i�a�•ran#y cannot E�c full}� tE•ansfeE•�•ed io llie Cit}�, the Contracior shaEl assist aE�d coa��erate ��itl� tlie Ciiy to thc fullest extent to en!'orcc such m�nufacEE�re�•'s �i�arrai�ty 1'or Elte �enefii oi'ihe Cify. 22. ��'ARRANTY — S�+ RVICES: The C�ttt[•acfor �t'arE•ants a��d �•e}�resei�ts that al( ser��ices to be prnvided thc Cit�� under tl�e CaniE��ct ��ill be fiiliy a�id timely peefarmed in a good and ti��o��kn�auli[:e c��an�ier in accoeda�ice �t°it12 gene��all�� aeeepted industE•y s[aF�dards and �ractiees, the teE�ms, conciitioE�s, anci co��enanls al' tlie Co��tr�€et, �nd �11 ap��licable Federal, State �nd local I��s, rules or reg�lations. A. The Cat�lractor �nay �tot li�itit, esclttde o�� disc{ai�lt tlie faregoing �iTar�•a��ty Or ai�y �iTarranty impliec� by lan°, a��d RFP 5075 Page ? of 20 a��y at[empt to do so shall be ��ithoiit f'orce or ef�ect. B. U��iess oti�erti�ise specif ed iE� the Contraet, the «�a��ra��ty pea�iod sl�atl be aT least one }�ea�' fi•o�n tl�e Acceptance Date. ]f'durii�g fhe «�aa•ranty �eriod, ai�e or v�ore of tl�e al�ave ��arranties are breached, tlie Contractor sl�afl promptl�� upon recei�t of cleEna�3d perforni tlic scr��ices agai�� in accorda�ce ii�ith a�o1�e sta�idard at �io additional cost to tl�e City. All cos[s incide�rial to s�tch at�d'tfiana[ perfo��itaE�ce sE�all 6a 6oraie by the Contractor. '1'E�e Cit�� shall endeavor to give t}�e Coniraeio3• �vrittea� notice of tl3e U�•eaeh oi �i�ar�•anty �i�itliin tliirty (30) ealendar days of disco��ery of the breach �i�arranty, �Ui �3IIC11'C i0 QfVC iIE]1CIy natice shall not iEnpair tl�e City's c•i�ltts qnder this section. C. If El�e Coc�teactor is tinable or ai�a�i[lii�g to pe�•forn3 its services i�� acco�•dac�ce �ti�ith #he abo�=e standard as rec�uired by tfie Cit��, tt�en in addition to any atlier avai]able ��emedy, the City may reduce tE�e aEnot►nt of services it may be reqaired to pureliase �andej• tf�e Contracf fi•o�n the ConU•acto�•, a��d p��rchase confo��i�ing ser�=ices from other sovrces. In such e��en[, tlie Cont�•actor sl��ll pay to tE�e City upon demand the increased cost, if any, incun•ed by tE�e City to pracuE•e suci� ser��ices fi•o�it another sau��ce. 23. ACC�PTANC� 4�' TNCOMPLETE 4R NON-CONFORMING D�I.li'�ItABI.ES: If, i��s[ead ot rec�uiring immediate correction or removal aE�d replacemenE of defecEive or non-conl'ar�iti��g deliverables, the Cit�� prefers to �ccept it, the City ��ay do so. 1'he Contractor sE�all pay all clai�ns, costs, losses and damages attribE�table to the Cit3�'s evali3ation of a��d dete��n�i�atian to acceE�t sucli defeciive or �ion-coE�io3�miaig de�irerables. if any st�cli aceeptance oceurs pripr to final pa}�ment, the City i��ay deduct such amoi�nts as are necessaE•y io con�peE�sate tl�e City for the di�ninished value af tl�e defecti��e pc• ��oi�-co��forn�ing deliver�bles. tf flie acceptance occuE•s after fi��a! pay�nent, s►�cE� a�nou��t �R=ilE be �•efi��ded to tlze Ciiy by the Cc�ntE�actor. 24. RTGHT T4 ASSURANC�: 1Vk�eneve3� one party to ti�e Conh�act i�� good f'aith iias reaso�� to questian the ofher pa�•ty's in4ent to perfarn�, deenlnd n�ay Ue Enade to tlie otlicr parTy for �v�•itte�t ass�n�ance of'the intenE to pe�•farn�. In ihe e��eni that E�o assurance is given ��°iti3i�� tl�e time speci#ied aficr decnand is made, the demanding �a��ty may treat this fai[�ire as an anticipatory repudiatio�z of tkze Co�it�•act. 25. ST4P �VORK NOTICE: Tl�e CitJ= �nay issue a�i im�itediaie St€�p 11'or[: Noticc i�i ihe e��ent 1E�e Coc�h•actor is observed pe��farn�i�tg iE� a n�a�3ne�• tE3a! is in violation of Pede��al, State, or Eocal guideli�ics, or i�i a �naroncr tf3at is deterEnined E�y� the CiE�� to be unsaie to eitlier 9ife or pro�erry. Upon notifieatio��, the Co��iractar ��ill cease al! �s�ork �ntil noiified �y tl�e CiEy t3iat the ��iolation or unsa#'e condition i�as been co�•rected. `I'he Contracto�• si�all be [iab[e for all costs incarred by tlie CiEy as a result of tf�e issuance of such Stop �Vo�•k Notice. 26. D�FAi3I,T: The ContracFo�• sl�ali 6e in defautt u�3der the Contr�et if the Contractor {a) fails co fuily, ti�nel�� and faitl�fi�liy ��erform any� of its ��ate►�ial o�ligatioi�s u��der the Contract, (b) fails to pE•ovide �dcquate assuranee of �erformance ander Paragrapli 2�3, {c) becomes insot��en! or seeks relief u��der the bankruptcy- la�i�s of the llizited States nr (d) n��f:es a matcrial �nisrepresentation i�� Conte�claE•'s Offer, or in an5� repo��t or deli��erable rec�uired to be subi�itted 6y the Cont�•aeEor to the CiTy. 27. TERMII�IATION FOR CAUSE: Ii� ti�e ee�en# of a def�ult b�� the Contraeto�•, ihe City shall ha<<e Fl�e right Eo termi��ate tl�e Contract for cause, by �vriEten noEice effecfil�e ten (10) cale�ida�� da��s, unless other�vise s��eci#ied, afler the daFe of seich notice, unless ihe Contractor, within sach [en (f0) day �eriod, cuees such default, or provides ��'td�11Ce SU��IICleill 10 E}I'O�'e LO t�l� CI�)''S E'C3SOi13I)�C SiLt15�c'iCtlQ[3 i}taT SUCE] dC�3LE�i �OCS E]Ot, i�� fact, erisE. I�� addition to any otE�e�• remec3�� available uE�der la�r or i�i eq�ity, tife City sl�afl be entit[ed to reco��er all actuaf da�r�ages, costs, tasses and e�pe�3ses, incurred by flie Cit�� as a result of ti�e Canirac€or's default, ine{uding, ��ithot�t limit�tion, cost of' cover, reasonab[e attorne}�s' i'ecs, court costs, �nd �,rejttdg��ent and post je�dgmeait interest at tl�e ma�in�un� la�s�Ful rate. Additiona[ly, in the e��ent of a default by the Cantractor, tl�e City �nay remove tE�e Contracto�• fi•ont tl�e City's ��endor list for tf»•ee {3) years a��d aaiy Offer submitted by the Cantraetor i��ay be cfisc�ualified for up to theee {3) }�ears. All rigE�ts and re�nedies unc�er tl�e ConEr�ct are curnulati��e a��d a�•e noE exclasive of aE�y atl�er rigi�i or a�enledy peovided by law�. 28. T�RMINATION �'4'ITHO�tT CAUSE: Tlie Cit�� sl�a{] l�ave ti�e �•igltt to ter�itinaie the Co��t��act, i�� vl�c�le or in part, �i�itE�o��t cause aF��= tin�e €�po�� tE�iE�ty (30) calendar days' �rior �vritten notice. Upon receipt of a noiice oE' termination, Q�e CoE�tractar shall promptly ceasc all fia•ti�e�- svork pu►�suant to the Cantraet, �s�itk3 such erceptions, if an��, specified in the no€ice of termination. '1'hc City s[�al[ pay the Co��ta•actor, to ttic e�teait of funds Approp�•iated or otlier«�ise [egally a��ilable foE' such puE•poses, for ��l goocis deli��ered and ser��ices pea•forEned ��d oblig�tions incurred pE•io3• Eo the date oflercniaiation i�� aceo�•daiice ��ith the terEns hereof. R�'P 5075 Page 8 of2fl 29. FRAUD: P��a►�d►�le�it statei7ients by ll�e ConU�actor on af�y �f1eE• oc• in any repart or de[i��erabie required to be suf�mittcd by cl�e Cont�•actar to €he Cit�� shail i�e grounds f'or tlie teE•i1�i��ation of tE3e Cont��act I'or ca►�se U}� tite Ciiy and �nay restE[t in legai aetio��. 3f}. D�I.A.YS: A. "F}�e City n�a1� delay scE�ed�lect delivery n►� othe�• dE�e daEes by ��ritten �7otiee ta the Cai�tractor if the Cit�r dee�ns it is in its best iE�tcrest. !f stcch cielay causcs an i��crease iE� tlie cost of €l�e �ti�orl: under tl�e Contract, the Cit�� and the Co�ttractor sh�lE ncgotiate ar� ec�uitable adi��st�t�c��t for costs i�icur�•ed b�� ii�e Cont��actnr in t]ie Cont�•acF price and esecute an amei�d�nent to tlie Contract. 'I'lie Co►�traeYor Enust asse�•t its rigi�t to an acijiisiment �i�itlzin t�3ic•ty (3Q) calend�►�• days fi•oi�i the daie of�recei�t of the nalice of cEe�ay. Failu�•e to agree a�t any= adjusted price shall be handled �indcr tlie Dispute Resolulia�a �roeess speci�ec� in p�ragr�pii 49. Ho��eve►•, notl�i��g i�t this provision shall esctESe t��e Contractor fi•om dela5�ing thc dcli��ery as notified. I3. Neither pa�•ty sltall be liable for any default or dela�� in ff�e perl'oE•��iance oF its o�lig�tions under tl�is Co�tt��act if �+�I�ile ai�d to [he eateE�t such c�efault or delay is caused U}� �cts of God, fire, riots, ci<<il co�u�notion, labar disru�tions, sabotage, sovereign conciact, or an}� otk�er cause be5�ond the eeasonab[e controf of s�ich I'arty. In the e�renE of ctefaul! aE• cIe[ay in contraet �erf'or�i�ance cfue to ai�� of't3ie foregoing causcs, ther� the ii��3e i'o�• con��Eetio�i af t�e services ��ill be e�iended; �roi�ided, l�o�i�e�rer, in such ai� e<<ent, a cai�feE•ence «=ill 6e l�eld «�ithin thc�ee (3} b€�si��ess c�ay�s Eo establish a mE�taally- agreeab[e period aftime i�easo�tabl5- necessar5- to overeo�ne tl�e effcet of sucli faiEure to perfornt. 31. INDEMNITY: A. Definitions: i. °indemnified CEaiEns" sha[1 include any and all clain�s, den��nds, si�its, e�USes of aetion, judgt��ettts attd ]iabilit�� of e��ery characEe�•, type or deseei�tion, i��clt�ding all E•easo��able costs at�d eipe�iscs of liti�ation, Ea�ediatio�� or olher a[ternaEe dis�tEte resolution n�ecE3an�s�i�, inctudi��g aitorneJ� antf other �rofessional fees for: (1) d�mage to or Eoss of the propert}� of �n}' person {ii�cluding, but nat litnited to the City, the Coi�tractar, their res��ecti��e agents, oitice3•s, ei7i��{oyees 1nd subca��Eractors; The affice►'s, agents, �ad emplo��ees ol' suci� s�abcontr�eto�•s; and iE3ic�d parties); ��d/or (2) deaiE�, bodi[y inju�•}�, ili�iess, disease, «�orker`s coEnpe�3saiion, [oss of sen�iees, ar [c�ss of incn�ne or �i�ages to a��y person (inclt�ding but not li�niied Eo tt�e agents, o�ficers and ei��ployees of tl�e City, lE�e Co��t�•�ctor, the CoE�t�•actoE•'s sabeontraetQrs, and third parties), ii. "F�alt" shall incl��de the sale of defecti��e or ��o��-co��forEning deli��e�•ab�es, 3ieglige�ice, n�iliful n�iscondtict or a�reacli of'any ]egall�� icn�osed st��ict ]iabiiily stai�daE•d. 13. TIiE CbNI'RAGTOR SHALL BBFEND {AT T1iE OPTIOl�' OB THE CITY�� 1ND�i411\IF1's AN13 IiOLD THE CFPI � TTS SUCCESSOR� ASSIGNS� OFFICERS� EhiPLpl'EES A1�D ELECTED OFFiC1ALS HA1L1Li.E$S FRO�i AR'➢ AGAIIVST ALL �DE14iNiFIED CLAIDiS DIREC'i'LY ARISING OUT OF, INCIDEI�T TO, CONCEIt3\ING OR RF.SiTLT1NG FRbh[ TIIEFAULT OF THE CONTRACTOR, OR THE CONTRACTOR�S AGE�TS, EhIPL01'EES OR SUBCQ\TRACTORS, IPi TI[E PERFURZ4iA3�ICE OR THE CQNTRACTOR'S QBLIGATIQNS UIVDER THE CO\TRACT, NOTHING HERETr' SAALI I3E DEEIIED'TO LlhiiT THE I2IGHTS pF THE C1T]' OR THE; CONTRACl'OR (INCLUDII�G, BIiT I�OT LL�fTTED TO, "I'HE RIGICT TO SEEK COl�TR1BliTION� AGAINS'I' AN1 THII2D PART]' R73014iAY BELIAI3LE FOR AN IR`DE�41NIF1E13 CL�iIl13 32. INSURANCE: The fol�o�a=ing ic�stu•�nce E•equiren�eE�ts are applicable, in �ddilion to tlie specifie insur�nee rec�uirei��eE�ts detailed i�i Attach�►e�t A, `]'he s�accessful firm sE�a[1 p�•ocure and mai��tain insurance of tE�e types aE�d ii� the n�inin�un� amou��ts acceptabfe to tlie Cit}� of Danto�i. 'I'he i��sw•ancc sltalf be �t�•itic�i by � co�npany Iiee��sed lo do business iii the State of `l'c�as and satisfacto�y to tk�e Cit}� of T�cnton. A. Ge��e��►I �eqt�ire�nents. i. TE�e Contractor shal( at a Eninii��u�n car��y insurance i�i t11c types and a�uou�i[s indicated and agreed to, as subn�itted to tlie City and ap�roved by tlie City �s°iik3in ti�e proc�»�e�nent �rocess, far the duratioi� of die Conirael, i�icl►�di��g e�te�ision optio�ts and i�o3d over Eaeriods, and duE•ing any «�ar�•anty pe�•iod. ii. Tl�e CoE�iractor shall prc��ide Certificates oil��surance �i�itl� tl�e coverage's and endo��se�itents rec�ui3•ed to tk�e Cit}� �s verifeation of coi�crage prior to contract csecutio�i a��d �s�ithin %€��teen {14) calend�r days ai�eE• n�ritte�� request fi•oit� fhe Cit��. l�ail�ire to providc tk3e rec�aired Certificate ofInstu��nce c7iay subject 41�e Offer to disqualifeatio�t fi•om co�isideratio�i for a�raE•d. 'fhc Cont�•�ctar �3�e�st also i'o��tivard a Certificate of' Insu�•ance to tk3e City �i�i�e�ie��er a p�•eviousl�� identificd policy �e��iod f��s espired, ar ait extensic�n optia�� ar hold o��e�- period is e�creised, as ��erificatian of conti�3uiug eo��crage. iii. Tlte Cc�nta�acto3• shall ��at coi��nence �`�c�rk a��til the �•eqt�ired ins�ir�i�ce is obtained at�d until sucl� ins�arance h1s beei� a•evie�ved b�� i��e City. �lp��•o��l of iusurance by tt�e City sE��ll �iot E•elie��e or decE•ease tlie liabilit}' O��lEle CO[7lC�iCfQ[' {le1'ElE[i(Iel' i311C� S�IiiII EIOE Yle CO[3St1'Ll�(� lD ve 3�II111ti3lI0El 6� �I�lIJ1�lIy on tl�e �ari of the Cont�•actor. i�r. The Co�it�•�clo►• n�ust subEnii ceE•lifieales of insurluce [a tiie Cit�� for al! su�ieantracto�s priar to the RFP SQ75 Page 9 of 20 subcot�trlctors comn�encing �i�ork o�3 tE3e project. t�. The Contractor's and all subconiractors' i��suE•a��ce co�rerage shall be �i�ritten by co�npanies licensed ta do business ii� i�e State of Texas �! the ti�i�e tlie polieies nre issried and shall be �i�riuen by cotnpat�ies �vitli A.A�i. Best ratings oiA- V1I or Uctter. 'Fl�e Cit�� »�ill accept �trorkcrs' eo►npensation coverage �5=rit#e�� by the Texas `Vor[:ei•s' Compensation InsuE•anee I'und. ��i. All endorsements naming the City as aciditiona) insured, ��aire►•s, and natices of ca�iceilafio�i e�iciorseE�ie��ts as �R�ell as tlie Certific�te of l�isuraiiee sE�all ca3�tai�i thc solicitation ��ut3�ber and ihe 1'ollc�«�i��g i��formation: Cii}� of I]e�itan \�t�le�•i11s A�f �n�ge�ne��f De��ime��t 9Q1 Li "1'e�as Sireet Denton, Te�as 762fl9 ��ii. The "otlier" insurae�ee c[aE�se sl�al[ no! �ppl}� to ti�e Ciiy �vf�ere #he Cit}� is an additian�l insiircd sl�o��n on aE�y �3olic��. It is intended tl�at policies reqiiired in tE�e Coi�h•act, co��ering both the CiEy and the Coi�tractor, sliall be co��sidered �rimary cove�•age as apE�[ic�ble. ��iii, if insurancc policies are not �t�riiten for amounts �gj•eed to n�ith tl�e City, tl�e Contracto�� shall c��•ry iJ�nt�rclla or Exeess Liat�ility I�3stu•�nce f'or any differences in a�nouaits specificd. Ii E�cess I,iability Insurance is p3•avidec�, it sf�al[ %llocv the I'orm of ilie priinar�� coverage. i�. Tl�e Cit�= ahall 6e entitled, upon rec{i�est, at an agreec� upon loc�tioE�, a�id �s�ithout espense, to rc��ie«� certifed capies of polieics and endorseme��ts thereto and may 37i�E;e any E•e1so��able requests fo�• deletion or revisioit or inadification of �artic�ilar �olicy Eerms, conditions, limit�Eiar�s, or etclusions except E��here palicy pro��isio��s are cstablishecf by la�i� or �•eg€alations biitdii�g apon either of tE�e parties hereto or tl�e u��der��eiter o�� any st�clt policies. x. Tlie City� resea•��es the ri$ht to re��ie«� tk�e insw•ancc requirements sei fortli dt�ring the effectii�e period of the ConEract and to n3ake reasonavfe adjustnzents to ins►�ranee eoverage, lin�its, and exch�sions �ti�l�en dee�ned necessary and p►•ude�it by the City based upon changes i�i statuto�•y l�t«�, court decisio��s, the clai�ns history of tlie indust�•y� ar f i�ancial condition of'the i��surance con�pany �s ti��eEl �s the Contr�ctar. xi. The Conh�actor shall not cause any ie�suranee to be canceled nor pe��mit a��y insuE•�nee !o lapse dm•i��g the tern� of the Co��tract oe as rec��ired i�� tlie Contc•act. .r-ii. 'fhe Contraetor shal[ be res�onsible for premiti�ns, dedt�etibles and sclf-i��sured retentio�3s, if any, stated it� pc�Iicies. �111 deductib[es a►• self-insured retentions shal[ i�e disclased on the Certifcate of Ins�arance. �iii, The Contractor sl�ail ee�dea<<or to pro��ide t}�e Ci[�� thi�•tp (30) calendar da��s' E��riEten notice af erosion of tf3e a�gregate li►nits Uelo«� occtErrence li�nits far alE applica6le caverage's indicated «�iihin Elie Cnn[�•act. riv. Tt�e inst�j�ance coveeage's specified ie� u=ithin #13e solicitation and require�»ents a�•e rec�uired �i�inimunis and �re not intcaided to lit��id the respansibility o►• liability of the Con#E�acto�•. B. Specifie Co��erage Rec�E�irements: Speeife instira��ce requirements are contai��ed in the solicitation iE�strtuneE�t. 33. CLAIMS; If any ciaim, de»�a��d, siiit, o�• otl�er action is asserted agai��st the Contractar �t=l�ieii arises u��cler or conce�•ns the Contraet, or «��ielt coi�ld i�a��e a 1��ateri�l adverse �flect on the Cont�•actoc's ability to perf'or�n thereuEUfer, the Cor�lr�ctor sh�11 gi<<e «�ritten notice thc3•eof to tltc City ��ritE�in Eera ([ 0) calenda�• days after ��eeeipt of notice b�� the Cont�•actoE•. 5�ich notice to tlie Cit}� shali state thc date of czotificaiion of any stich claim, de�na�id, stiit, or o#her �ction; the names and �ddi•esses oFthe ci�imant{s); the basis Eliereof; and the nanze of each persoE� a�ainst «�hom such claim is veing asserted. Such notice sf�al] be deliE�ercd perso��al[y or b}� Enail ancf shal] be seE�i io the City �nd to the I7enton Cit�� Aito�•ney. F'ersonat deli�rery to tlie City Atto�•ney shal] be to CiEy l�all, 215 �ast �iclCin�iey S[reet, Dentan, Te�as 762Ct1. 34. NOTIC�S; Ui�less otheE•�vise speci�ed, a{I notices, rec�E�ests, oE• other co�nmEn�ieREions required or appropriate to be given iu�der the Co3itE•aei slia(1 he in �;��•iting a�id shall be deeme� deli��ered #E�ree {3) t��si��ess days aiter pasGna��l:ed if seE�t by U.S. Postal Ser��ice Ceriiiied or Registered ivi�ii, Return Receipt Requested. Notices delive��ed 6y otlier ineaE�s sl�all be dee�ned de[ivered upon receipt by tl�e adc�E•essee. Rotitine co��intmications tnay be �ttade E�y� �rst cl�ss �nail, lelefa�, o�• otlier eoimnerciall5� accepted �neans. Notices to i(�e CoE�tractoE• shall be se�tt !o the address specilied in !he Cor�Eracio3's C)ffer, ac at such other addE•ess as a}�art�� may ��otilj� tE�e otl3e3• in ��•iting. Notices to tlie City s3�a11 be �dd�•esseci to tlie Cit�� at 9R1B Texas StE•eet, Denton, Te�as 76209 and �narked to t��e attention of the P�rcltasing �4aj�ager. RFP 5075 Page 10 of 20 3S. RIGHTS TO BID, PROPOSAL AND C�NTRACTUAL MATERIAL: All �i�aterial submitted by the Cot�iracto�� to the City shall beco�ne �roperty of the City t�pon reccipt. Any �o�•tioE3s of sucE� E��ateE•ial claii��ect t�y tl�e Coc�iracto�• to Ue E�roprieta�y �nust be cleac•ly marked as sucii. Uete►�minatioE3 of the �tiblic i��ture of the ��aterial is subject to the Te�as Public ln%rinatia�� Act, Chapter 552, and `1'e�as Go��ernment Code. 36. 1�0 ��'AR12A1�TY B'Y CiTY AGAII�ST II�FRINGEM�l�ITS: Ti�e CoE�tE•actor repE•ese�tts and �a�arrants to t[�e City Ehat: (i} the Contractor sl�all provide tlie City good and irtdefcasi�le tiEle to tlie delive�•ables a��ci (ii) the delh�erables st��plied b�� the Cantractar in accaE•da�ice «�itk� the s�ecifications i�� ttie Coni�•aet ��ill noE i�i%•ij�ge, ciirectly or conirib�itarily, ai�y patei�E, t��aden�lrk, copyright, trade sec�•et, oE• a�iy othe►• intellect�ial pro�erty rigk�t of any �:ind of a��y tl�ird �acty; t3�at no clai�»s I�ave bec3� n�adc �y any }�erson or entity ��ith res�ect to the os��nersE�ip or operation of #(�e de[ive�•ables a��d the Contractar does not kno�� of aroy valid basis f'o�• aEiy sucl� clain�s. The Contrlctor shall, at its sole expense, defend, indem�tii}�, a��d l�old the City harinless fi•o�1� and a�ainst ali iiability, datnages, anc( costs (inelt�ding cot��t costs �nd reasonabte fees of attorne}�s and otf�er �rofessionals� arisi��g out af or �•esulting fi•om: (i} any claim tl�at tlie City's e�erc'tse any��t=Itere in #t�e «�orld of the rights associated «�ith the City's' on�i�crsl�ip, and if ap�licat�le, license ��ights, aE�d its tESe of the deliverables infE�in�es the i�itelleeti��l propert}� �•igl�ts oi a�iy third party; or (ii) che Cantractor's bc•each of an}= of Contractor's E•e�reseaitatiar�s or n�arE•�nties stated in ti�is Conh•act. tit lE�e e��ent of'an}� such clai►n, the City slt�t[1 have fhe �'i�i�t ta monitor suci� claim or at its option et3gage its o�i�n sepaE•ate eounse) to act as co-counsel on !he City's bel�alf. Purther, Coi�tractor agrees tl�at the CEty's s�ecificatio3�s regardiE3g tlie de9ive►•ables shalE ic3 no �vay diE�iiE�ish Contcactor's �iTarranties ac• obligatio�is �ander this paragraph and the City Enakes no «<arranty tliat tl�e productio��, deve]oEz�nent, or deli��ery oi sueh deli��erables �i�ill �iot i�npact sucl� «<arranties oiCo��t��acto�•. 37. CONI'ID�NTIALITY: In oi�der io pro��icle ihe deliverables lo tlie City, Contraeior �nay reqaire access to eertain of tlie City's anci/or its [ice��so�•s' con�dential i�3fo�•matinn (inc[�iding iE�ve��tions, e�nplayee iE�formation, t�•ade secrets, confidentiai [:��o�i�-E�o�a-, co��fidential busuiess information, aE�d othe3� inforE3�alion �s=hich the City or its licenso�•s conside�• confidential) {colleetivei��, "Co��ficEential Informatioi�"). Co►�tE�actor ackno��ledges ai�d agrees that tl�e CoEifidential I��formatioE� is the ��aluable property of the Ci€�� andtar its IicensoE•s aizd any t��a�tthorized use, ciisclosi�re, dissen�i��ation, or other reiease oithe ConfidenEial Infar��ation «�ilE substantially injare the CiE�° a�id/or• its lice3�sors. The CoEitr�eto�• {i�ic{udi�ig its em�loyecs, s��bco�ih•aciars, aget�ts, or repE�ese��tati��es) ag��ees that it «�ill ntainiain the Confdential I��for�nation i�3 sErict confideE�ce and shall not disclose, disseniinate, co��, divulge, 3•ec�•e�te, or otE�eE•��ise use the Confdeniial 1►�forination n�itk3o�t the p��'tar «�ritten co��sent of tfze City or in a�naitf�e�• not ezp�•essly per�itilted uE�der ihis Agreen�e��t, e�n[ess Et�e Co��f�ential InfoE��natio�� is requiE•ed to E�e diselosed by IaE�� oE• an order of any eouE•t or other go��e�•nmeE�tal autkzority �s°it�� proper _jurisc�iefio►�, provided tlie Co�itractor pron�ptly noti�ies tE3e City befare disclosing such information so as to pet•mi€ t�ie Ci[y ��easaE�abEe tinie ta seek an app►�o�riate pE•o[ective order. Tk�e Coniraetor agrees lo use �roteeti��e �i�easiires �o less sta•inge��t tltan the Contractor t►ses ��itk�in its o��n business to protec! its o��n I1305� valuable info►•ination, `a�l�icli pratecii��c measures shall unde�• all circumsta��ces be at least reasona�le �7ieastires !o enst��•e tlie conti��ued confdentialit�� of tt3e Confide��tial lnformatioi�. 38. O�'VI�I�RSHIP AND US� OF DELIVERABI,ES: Tl�e City sh�ll ot��n �Il rigE�#s, titles, and iE�terests tlt�'o�3ghaut the «�oE•[d i�i and to ti�e de[iverables. A. Patents. As to an}° pate�itab[e subject matte�• cantained io tlic cieli��erables, [he Contractor ag�•ees to disclose sucl� �ralentable subject Enatter Fo ilie Ci#y. Purther, if req�acsted by the Cit��, the Contractor agE•ees to assigE� �nd, if necessary> eause each of its eEnployces to assign tlie entire right, title, ai�d interest to specifie i��eE�tions i�nder s�ich patentable si�bject m�tter to tlle City and Eo e�ecute, ack�io«�[edge, a�id deEiver and, if neeessary, cause eael� of' its eEnployees to e.r•eciite, ac[:no�s=[edge, a��d delive�• an assig�iinent of Ietters patent, i�� a farcn to be reaso3�ab�y a��•o��ed by= tl�e City, ta tlie CiE�= upon �•equest b�� the City. 13. C€�p�-rigfits. As to �ny deliveravles co��taining copy�•ightable subfect Eaiatter, the Contracto�• agrees that u�,o�i their ereation, sueii deli�rerables sl�ali t�e co�iside��ed as t��ork �3�ade-�oc-I�i��e by the Cont�•acto3• for the City and t�e City shall o�i�E� all eopyrights ic� ��iid to sucl� de]iverabEes, p��ovided hc��evec•, tliat ��oi1�iE�g in tliis Paragraph 38 sltall negate the City's sole or joint o�vnc�ship of a��y such cEeliverables arising [�y ��irtue c�f tl�e City's sole or joint ai�thorsl�ip of suclt dcliver�bles. Sitould �y operation af la�v, s�eh deli��erlUles E�ot Ue co��sidered «�o�•ks made-far- hire, il�e Contrlctor E3eE•eby assigns to �he City (and aga�ees to cause eac[j of its c►nployees pE•a�ric3ing ser��iees to tlie City E�ereti��de�• !o execttte, ackno�i�tedge, and deli�=er an assigmnc�tt to tl�e City of) �ll tt�orlcit��ide riglii, title, and in[erest in and €a sucl� deliverables. 1'dith �•espect io such n�or�: made-for-I�ire, the Cont�•aeEor agrecs to csecute, ackno��ledge, a��d deli��er and ca�ise each of its e�nplo��ees prQ�riding serviees to tE�e City he3•cunder to execute, ackno��ledge, aiid deli�rer a �s�ork-�nade-for-l�ire agrce3itc��t, iii a fa�•�n to l�e rcason�ibly ��proved by ti�e City, to tl�e RF1' 50�5 Page 11 of 20 City upon delivery of such delive��ables to tt�c City or at such nther tii��e as the City n�a�� rec�t�est. C. Additional 1lssigitme��#s. The Co�ttractor furtl�er agE•ees to, a�id if ap�Eicable, ca�ise e�el� of� its e�n��lo��ees to, e�ecute, ack�3on�ledge, and deliver ail �pplications, specifications, oaihs, assig�nne��ts, a�ld all other instrt►�neE�ts �i�E�ich tE�e City �nigltt reasanab[y deen� i�ecessary iai o�•der to �pp[y #'or nnd obt�i�a cap��rigE�t �3�•c�tection, c�iask r5�ork registration, tradeEnarR E�egistration aitdlor protection, lette��s pate��t, or a�iy si�ni[ar i•igl�ls i�� any� and a!l cauntries and i�i order ta assign and co��ey to tf�e Cit�=, its s�cci:ssors, assigns and no�7iinees, the sole and exclus+ve rigE�t, title, and inte�•est in aiid to tl�e deliverables. The CanU•actor's obligations to e�ecutc, acki�o�s°ledge, and deliver (or catise tti be exeeuted, �ckno�i�ledged, and de�i��e►•ed} instruments or papers sucl� as those dese�•ibed i�� t�iis Parag�•aph 3S a., b., and c. slial! conii��ae after tlie te�•�nination of this Contract ii�itl� respect to such dcliverabEes. ]n tlie ere[�t lhe City sl�otEld not seek to o6tain copyright protection, �nask ��ork �•egisEratio�� or patent protecEio�i fc�r any of tlie deEiverab[es, but sl�ould desire to keep the saine secret, !he Contraeior �grees to treat t�le sa�ne �s Coniidenti�E T►�ibE•maiiQn t��der the te�•ins ofParagr��l� 37 above. 39. PIIBLICATTONS: Al[ }�ublisitec� n�aterial and �ti�ritten reports sabn�itted �nder tlte Conti•aet �nust f�e origin�Ely de��eloped mate��ial �Enless oihe��vise s��ecifieally �rof�ided in tl�e Cont�-act.1�'hen inaterial not originally c�ei�e�aped is ineladed in a repor[ in any form, tl�e source s13a11 be ideE�tified. �0. ADVERTISING: Tl�e Conh•actor sl��ll 3iot �dvertise or pablisl�, �E�ithout tlie City's prior conse�7t, tk�e f�tct that the Cit}� E�as entered intn tlie Cont�•act, ezcept to t�ie esteizt required by la�i�. 41. NO CONTING�NT F�ES: '1'he Contractor ti�°a►•�•ants that n€� persan o�• sellir�g �gency� has l�een eEnploy-ed or retai�ied to solicit or sec�re tl�e Co�ttract E�pon �n�� agree�neiit ar understanding for co��mission, percentage, beokerage, or contingent fee, e�cepting E�ona iide eE��ployees of bona fde established eon�merci�l ar selli��g agencies �it�sinTai�ied by the Cantracfor for tlic p��rpose o�'securii�g �itESi��ess. For bE•eaclt oE• ��iolation of This �a=arra��ty, the Cii}� shall hat�e t[ie right, i�� additio�3 to any otheE• �•e�nedy availaUle, ta car�cel ihe Conirlct ��ithout liability and to deduct fi•oi� any ai�3oui�ts o�t�ed to the Ca��tractor, or other�vise recove�•, l�le ftEII �I11�U31f OC SUC}i COTElri3[551011, pea•eentage, bcakeE•age o�• eoittingei�t fee. 42. GRA'I'i)ITI�S: "1'lie City EnaS�, by zvritEen notiee to the Co��tractor, caE�cel tl�e ContracE «�ithout Iiabi]iEJ� if it is detern�i��ed b}� the CiE�� tl�at gcatuities «<e�•e offered or given 63' L}iC COE]iC�CfOC OE' �[l}' ageill OT E'e�ll'ESeElla�11'� O� tFle Contrac#or to any offcer or employee of the City of i7e��ton ��ith a ��ie�s� to�;��•d secuE•ing the Co�itracE or secaring fa��orahle tre�tnie�t ��ith ��es�eci to ihe a«�arding or a�nei�ding ar the n�aking of a��y determinatioe�s �vith �•espect ta ti�e perfar�ning of suc3i contract. ln the event the Contract is canceled by Uie City �tns�i�i�t to this prc��ision, tE�e CiEy shall be ei�tiFled, iE� a�dition to any o#heE• rights and reft�edies, to recover or �s�ithhold the aenount of the cflst incE»•red by iE�e Co��t�•aetor in providing st�ci� gc•ataities. �3. PROHIBITION A,GATI�S'[' PERSONAL INTER�ST TN CONTRACTS: l�o oflicer, e�3�ployee, indepe�3dcnt co�tsulEant, or elected of�cial o�' the City ��ho is iE�voh�ed in 4he de��elopnient, evaluatio►�, or deeisioi�-making process of the perfarn�a��ce of any solicitation sliali I�ave a fi��ancial inteE•esc, direct or indirect, in tE�e Co�tirac€ resuliing fi•oi�� that solicitation. Any �villful ��ia3atian of this section sha(1 constitute impropr3et�° i�i office, and any offiee�• or ernployee guiit�� tliereof sl�ali be si�bjeci to ciiseiplinary ac4ion u� io an� including disn�issai. Any vialation of this provision, �s�itE3 the kno«ledge, exp3•essed or implied, of the Car�€raciar sl�ali rende�• the Cn��iract ��oidable by the Cit�-. TE�e Contraetor sl�al( eoit�plete �nd subn�it the City's Conflict of lE�terest Q�iestiom�aire {Attachment B). �}�. INDEPENDEI�T CONTRACTOR; 'I'he Contr�et shall no! �e construed as cre�tiE�g �n ertaployer/en�ployee relatioE�sl�i��, a�artneral�i}�, or a,joint ��enture. Tl�e C'o��tr�etor's servicis shall be [liose oi'an independent contracior. TE�e Contracio�• agrees �nd understai�ds th�t tl�e CoE�tract does not grant aE�y �•ights o�• p��ir�ileges establishec{ foE• employees of't{ie City oi'Denton, Texas for the pa�•poses of i�icome tas, �a-it[�[�oldiE�g, social secw•ity tases, �racation or sick leave �enelits, �vo�•I:eE•'s compe��satia��, oE• any oilie�• City ei��p[ayee benefit. The Cit�� sh�l[ i�ot E�a�re s�Epe►�risio�� a��d contro] of !he ContracEor or ait�° employee of the Co►�tr�ctar, and ii is espressl�� E�ndeistood Tizat Con#racror sl�al[ �erfarm tl�e ser��ices }�ere�ande�• accardi��g to i}te attaclied s�3ecificaiions at the geneE•�[ direction of the City Man�ge3• of tlie Ciq� of De��to��, `I'eras, o�• i�is ciesignee ti��der this ag�•eeme��t. �5. ASSIGIlM�HT-b�I.�GAT10N: `I�he C'ontract sl��lf be bir3ding upon aiict enstu•e ta t{�e �enelit c�i'the Cil}� aiid tlie Contractoa• and their res�eelive saecessors �nd assigus, �ro��ided ho�t�e�=er, tl�at �io �•igf�t or i�uerest in the Coiuract shall be assigned ai�d �io obligation shall be delegated by ii]C COE]tE'�lCfO]' �S°ithoat ilie pE•ior ��ritten consent oF tl�e Cit��. Any atten�pted assignment or detegation i�5� the Contraetor sE�al! be <<oicf uc�less enacie ir� coi�f'ormiiy �t�ilh this RFP 5075 Page I2 of 20 �arag��aph. TE�e Co�tract is not intencied to coni'er �•ighls o�• bene�ts on a��y �crson, liri�7 0�• entity ��ot a�arty l�ec•eto; it being tlie ic�teniio�x of tE�e parties chat tE�erc are no tl�ird party be�ieficiaries to tlie ContE•acl. �6. «'Ai�'�R: No ciaim o►• right arising o€�t of a breach of the Co��t�-�ct caE� bc discl�arged in �s=hoEe or iEa part hy a «raive3• or rett�inciatian of tl�e clai�n oE• right u��Eess llie «��i��er or reniinciatio�� is suppn��tec3 t�}� consicieration a��d is in �vritic�g signed by tl�e aggrieved part��. No �vai��er by either the ConEractor or the Cit�� af �ny= one ar Enore eve��ts aF default �y the Qil�e�• party shatl ope►•ate as, or be const�•�ied to be, ��ern�ai�ent �vaiver of any ��igi�Es or nbligatioE�s �indcr t}�e Ca��Eract, or 1n e�press or i�nplicd aceeptaE�ce of ai�y aihe�• esisting o3• future dcFault or ciefa�tlts, �s°hetlier of a si�nilar oE• diffc��ent ck�aE�acter. �7. A'IOD��'ICATIONS; `I'he CoE3tract can be c��oc�itied oj• ��nended an15� by a trriting signed Uy Uath �arties, l��o ��•e-�rinted or similar terEns oE� a�ry tl�e Co��tractor i�n�oice, orde�• nr oElier docun�ei�t sliall l�a�re ��ny force o�• ef�fect to ei�ange tl�e teri��s, co��e�t��ts, a��d conditions of the Cont��act. �S. INTERPR�TATION: The CanU�ac[ is i��tended by t�1C �8E'iiCS c�5 c� �Iiill, co�nptete and e�clusij�e sEatement af' tl�e terms of tl�eii� agree��e��t. No couc•se of }�rior dealing bet�3�een the pai�ties or course of performance or usage o�the trade shall be relc��a��t ta s��len�ent or e�plain a��y term uscd i�� ihe Contract A!t{iougii tl�e Coutract inay l�at�e bee►i substar�tially drafied by one pa►�t�°, iE is t13e inteE�t of the �a�-ties that all �ro��isions be coitstrued in a n�anner to be fair to batii pa��ties, reading no pro��isions naore sG�ictEy agaiE�st o�3e �arty or the oti�er. `i'I�ene��er a terin ciefinec� by the Uniform Ca�ni��ercial Code, as cnaeted b�� tl�e State af Te�as, is ��sed i�� tl�e CantE•�et, the UCC definitioti sf�ap eantrol, ��31ess ntheetii�ise deiined in tlje Co��tract. 49. DISPUTE RESOI,U'I'IDN: A. Ii � dis�ute arises out oi or ��elates to the Cani��act, or the breact� thei•eof; the p�E•ties agree to negotiate prior to }�rosec��ti�3g a suit fo3• dantages. f 3o��=c�rcr, this seetion dpes t3ot proi�ibit the filing of a la«�siiit to toll ti�e run�tiitg of a sta[iiEe of limitations or to seek ii�ju�ictive relief. FitE�er E�a3�q� �na}� m�l�e a�vritte�3 request f'oE• � meeEing bet«�eeE� repE•esentatires of each party �ritlii�i fo�rteer� (1�4) calendar cia�rs �fter rceeipE oithe �•equest o�• sacE� [�ter pe�•iod as agreed b}� tile p��ties. Eack� part}� shall inc(ucfe, at � miniinum, o�ie (1) se�iior ]evel ir�di��idu�t! �t�ith decision-niaf:[ng autharif�� regarding thc disp�iEe. The pu��pose af Ehis a�id atty st�bsequc��E EneetiE3g is lo �tten3pt in good faith ta negotiate a resolatio�� of the dispute. lf, �vitlii�t thirty {3f�} calei�dar day�s after suci� meeting, Et3e }3�rties h��e nat succeeded in negotiati��g a resofutio3i of tl�c dispute, [hey �vi[l �roceed direc€ly to meciiation �ts described belo�i-. Negotiation may be ��ai�red by ��i�ritten agreen�ent signcd l�}� boil� pa�•ties, in �vliicl3 evei�t the parlies rnay proceed directly to �nediatiait 1s descri�icd bela��. I3. lf t}3e elforts ta �•esoh�e the dispate thro�igli negoti�tian faii, aE• the parties «�ai��e Fhe negotiation �rocess, tlie parties may seleci, z��itliin thiE•t}� {3D) c�lenda►• d��ys, a iitediator irai►3ed in ntediation s[:ills to assist �s=iti� resolution of the dispute. Sl�ould they choose tl�is option; the Cit�� and the ConEractor agree ta act in good faitl� in tl�e seleciion af ii�e anediator ae�d to gi<<e consideE•�tion to c�t�ali3ied individuals nott3inated to act as E��ediator. Nott�ing in tl�e Contr�ct prevet�ts the parties froe�i relying on tlie skills af a perso�i «=lto is iraiiied i�� ihe subject matter of tE�e disp�ite or a contract inte�•�retation e�pert. If the pa��tics fail to agree o�i a it7ediaEor ��°itl�in tE�irty (30) caleE�dar da}'S D� illllliiilOt3 of the i��ediation process, ihe �nediaiflr shali be selected b}r t}�e I]entan Cottnty f1lEerna6ive Dispute Itesolution Progc�aen (DCAI'). `1'he parties agree io p�rtici�ate in i��ediation in good faiEh ior up in tl�irty (3Q} calendar da5�s 1'ron� ll�e da[e of tlte fi3•st mediation session. `fhe City anc� the Co�itracto�• �i=ill sk��re tE�e mediato�'s f'ees ec�tially and tE�e parlies ��ili bear their on�n costs of participalion saeh as fees for any coE�sult�nts or �ttorneys tl�e�� enay utilize to represent them €��• otf�er�t=ise assist them i�� the i��ediation. Sfl. dURISDTCTION ANb �T�NU�; `I'lic Co�it�•aet is made under and si�all i�c go��e�•i�ed by the [at��s of the State af '�'ex�s, i�icli�cting, �i�hen a}��[icabke, tl�e Unifor�n Co�nmercial Code as acfopted in `I'e�as, V.`I'.C.A., I3us. & Comm, Code, CE�apter 1, excluding a��}� j�uie oa• �ri�icip[e tE�at �;�oul� refer lo and app[y tlie s��bsl��iti��e la�a- of anotlier state or ,jui�isdicEioi�. All issues arisittg fi'om tl�is Co��traci sltall be resohred i�i the cottrts oi DentoE� Count�-, 'I'e�as anci il�e ��arties agree to sui�mit to fhe exelusive perso�tal ju��isdic#ion oisuch courts. TE�e foregoing, ho«�e<<e3•, sl�all not be co��st��ued or ii�terpreted to limii ar ��est�•ict the right c�r abilit5� of tE�e Ciiy !a seeR and seeEn•e injuE�ctive relicf fi•orn any com�eteEit aiithority as coniemplated lierein. 51. INVALIDITY: Tl�e invalidit}�, illega[itp, or unenl'orce�tbili#y of any prol�ision a�' lE�e Co��t�•act s�ali i�� o ��ay affect the v��lidity or en�'nrce�bility of �ny atlier partio�i or pro��isian of the Cant�•act, Airy ��oid pro��isioEi shall Ue deemed seveE•ed fi•o�n the Coittract and tlte l�a(aE�ce of'tl�e G€�nh�act sl�a[I i�e const�•ucd and enf'orce€1 as if the Co��tract did nof cont�in tl�e p�rticular }�orti€�� or pro<<isio�i hcici to be �roid. TEie pa�7ies furti�eE• agE•ee to rei'orn� the Cont�•aet to RFP 5075 Page 13 af 20 replaee an�� strickeE3 provision «�ith a valid �ro��isian tliai coE�ies �s clase as possible to tiie intent of Ehe slricken }�ro�rision. Tlie �rovisions of this sectio� shalt ��at pre��ent [l�is enti�•e Co��t�•act Fi•om bei�tg voic� sl�oulcf � provisioi� «rhich is the essence af tE�e Contract be deter�nined to bc; �roid. 52. H�I.IDAYS: ihe folEo�vii�g l�ofid�Eys are observed by tl�e Cit}� Ne�i� Year's Da}� (obscrve� A�tLK D�y, A�ten�orial Da�� tE� of Jul}, Lavor D�y Th�E�ksgi��g DaJT Day AfierTh�nksgiving Cl�ristmas Eve (o6sen�ed) Christmas D1y� (obse�•t�ed} Ne�� Year's Day {oUser��e� If a Legal Holiday falls on Satilyday-, it �a-ill l�e obseE•<<ed on tl�e preceding F��iday. if a Legal ��oliday falls o« Sunda��, it «�ill be obser��ed oit tiic f'olEo�i�i��g �ionday. Nori��al hours �f �peratian sliall be bet�a�een 5:00 ain �nd �3:0€l p�n, A9onda�� t��E•oE�gh Frida�=, e�cluding Cit}� of DeE�ton I�olic�ays. Any seheduled deliveE•ies oE• «�ork perlo��ma��ce noi �s�itf�in tlie normal I�ours of operation must be approved Uy the Cii�� Manager of De��ton, 7'exas o�• his authorizecf designee. 53. SURVIVABILITY OF OBLIGATIONS: AII pE'Q1'1S10135 Of llle COIlII'iiCt ��cZT ilrippSC CO[]t[ilill[]�* O�If�ailOEi3 011 t[�e partics, includi��g but �io# limited #o tlie n�arra�ity, incEemnity, and eonf�deittialit�� abligatiai�s oitlie pa��ties, sha[1 siirvivc tlic expiration or iermination ofthe Contr�ct. 5�3. NON-3USPENSION OR DEBARMENT C�RTIFICATIDN: The City of Denton is {�rohibited fi•ani co��tracii��g tvith or n»king pri�ne or sul�-at��ards to parties thaF aee sus�ended a►• debarred or �;�hose �rincipals are sE�spended or debarred fi•oin l�ederal, S[ate, oE• Gity of Benton Cantracts. By accepting a Ca�itract ��ith the Cit��, the Z�endor certifies t�at its fir�n and iis principals are E�o! c��rrent[y suspended or deba��red fi•oe3� ctoing business with the Fedei•a! Go��ernment, as indiea[ed b)� ihe Genera[ Se��ices fld�ninistration List of f'arties Excluded t'ra�n Fede�•al Procueeine��t �nd Non-�'c•ocuretne��t Progratt�s, the State of Tetas, or tlze City af Denton. SS. �QUAL OPPORTUNITY A. Equ�l �mployment Opportunity: No Of%ror, or Offeror's age�tt, slial] engage in aE�y discri�ni��atary einplo��ment p�•acticc. 3�o pe��so�t shall, on it�e grc�tmds ot Ence, ser, age, dis��ility, creed, eolor, genetic testing, or natio��a] origi��, be refused the benefits of, or E�e otlien��ise subjeete� io discrimination ander �t�}� activities resulEing fi•om ihFS RFQ. B. Americans wifl� Ais�bilities Acf (ADA) Complianee: l�Io Offcror, or Of�E'eror's agent, sl�al[ et�gage in an�� discriminatory emp[oy�ncnt practice against inc�ivi�uals ��iEh d�s�bilities as defi��ed in tl�e ADA. 5G. BUY AM�RICA,N ACT-SUPPLIES (Applicab�e to certain ferlerally func�ed �•equirements) TE�e fo[lor��ing "ederatl�� fiinded rec�uirc��3e��€s �re applie�ble, i�� addi#ion ta tl�e specific federally fuEicEed �•equireme3�ts. A. Definitin�3s. As used in El�is paE•agrlp9i — i. "Component" means an article, m�tcrial, or supply ineorporated directly i�tEa an end p►•odi3ct. ii. "Cost ot'eotnponents" ine�ns - (1) Por components ptn•ch�sed b}° Ehe Conte�etor, tlte aeqiEisition cost, inclading transportatia�� costs to tite }31�ce af i��corporation ir3to the end product (�a�hether or not sucE� costs are �aid to a r�o�nestic firm), and a�ay apE3licable dt�t}° (n�l�ether or not a dt�ly-ii•ee entry cea•tificate is iss��ed); or (2} Poj' components �nai�ufactured Uy Elie Contracto�•, �[l costs associatecE �`�itii tl�e ��an��facture af the compone��t, i�icl�idii�g tE•ansportatio�3 ec�sts as described in paa•agrl�h (1) of tE�is dc�'initio��, phES allc�cable ovei�liead costs, btit esc[uding �rofit. Cost of coni�onents does not incltEde ��y costs associated i��itl� the n3�E�ufacture c�i'the end p�•nduct. iii. "i]o�nestic end product" cneai�s- RFP 5075 i'age l� af 2Q (I) An unmanui�clured end product mi�ied ai•prod�eed in the United States; o�• (2) An end proct�ECf �nanuP�ctiired i�3 the U��ited States, if the cost of iis con�E�o��ents �nined, produced, or mamif�ctm•ed in tl�e U��ited St�tes e�eeeds 50 perce�it of the eost of all its cott�ponet�ts, Components of foreig�i origi�i of ti�e sa3ne cl�ss o�• kint� as those tt�at the a�ency dete�•i��ines are �iat mined, �rodtECed, or nta�3ufacttiE•ed it� sufficient a�id �•eason�6ly ati��il�ble ca�ni��ercial qua�itities of a satisfactory quality a��e treated as domestic. Scrap �enei•ated, callecEed, and prepa�•ed for processing in ti�e United States is considered da�nestic. i��, "End product" �neans those �E•ticles, Enaterials, a�id supplies to be acqiii�•ed uiide3� ihe conh•act for public i�se. v. "I�orcig�� end �raduet" mea�is ��j end product otiier tlian a don�estic c�id product. vi. "tlni#ed States" �neaE�s tl�e 50 St�tes, the Uistrict of Co[iEmbia, anci a��tl5�ing areas. i3. `1'i�c 13uy AmeE•ic��3 Act (dl U.S.C. 14a - lOd} pro��ides a pE•eference i'or domestie end products fo3• suppiies acquired for use in the United States. C. '�'he City does not �naiEitain a iist of foreign articles tl�at «<il[ be treated as dot3�cstie foe il�is Conteact; bi�t �i�i[I consideE• for a��p�•oval E'o►•eig�i articles �s domestic for #[�is }�roduet if tl�c a�•ticles are o�i a list appro��ed b5� anotEier Go��crE��enfal Ageiicy. The Offeror shall sui�Enit docui��entation «�ith tE�cir Oi�feE• de�nonstrating tl�at tfie a�•tic[e is on an appro�red Gover��me��t�E list. D. Tlie Cont�•actor sl�all deliver o�tlJ� do��estic ei�d produets etcept to tl�c exteE3t tliat it specified delive��y of #'o►•eigiz end products in the pro��isio�t of il�e Solicilaiion eniitled "Buy American Act CerYifcate". 57. RIGHT TO INTORMATTON: The Cit}� of De��ton reser��es the righi to use any anc� all infori�l�tian p��esented i�� any response to this solicilatio��, n�l�ether �mended or not, escept as prohi6ited b}� la�t�. Selection o�rejection of tlie s��br��ittal does not affect this rigi�t. 58. LIC�NS� FE�S OR TAXES: I�1'O\'lCI�(� tI]e SOI1C1t�lEDli 1'�f�t�11'�5 cRil c�1Yii1'�2d COlti['ilCi01' O1' SLI�p�ICI' i0 �e I1CCE]Se(� �3y llie S[�te af Te�as, any aE�d all fees ancf ta�es are the responsibility af tlie respondent. 59. PREVA.�I.I]�IG �VAG� RAT�S; All respondeaits �ti�i[I be E•eq��ired to comply ��ith Pc•o��ision SI59a of"Ver�3ot�'s Annotated Ci��il Statutes" of the Siate oi'Texas ��ii1i respect to ii�e pay�ne��t ofprevailing �va�e rates aiici prok3ibitit�g discriminatian in the e«�plo5�ntent pE•actices. E�ttu:/hvtrtt'.access.�po.�av/�a�risbaca�ilt�.htntl 60. COA�PLIAI�CE WITH ALL STATE, F�DERAL, AND L�CAL LAti�S: Tl�e cantr�ctar or supplier sl�all eomply ��ith al] State, Federal, a��d Lacal la«�s ac�d requirements. "Tlie Responde�3t mf�st comply n�iTh all a}�plicahle Eatvs at all ti��es, iEicluding, witliout li��itation, tlie i'allo�s�i��g: (i} �36.fl2 oftlie Te�as Pe�ia[ Code, �s=hicl� �rohit�its bri6e�y; (ii) 13G.09 of the Te�as Penal Code, ��hick� prof�ibits tiie offe�•i��g or coni'erE•ing of benefits to public ser��ants. 'I'he Respt�ndent shaEl gi��e all i3otices and comply �t�ith al] la��s and regt�lations ��plicable to furE�isE�ing and perFormance o1'the Cflntract. 61. F�DERAL, STA'�'�, AND LOCAL R�QUTR�M�IVTS: Respondcnt shall demonstrate c�n-site co�nplilnce �i�itE� tl�e Pederal Tax Refa�•��i Act of 1986, Sect�on 1706, ame�iding Section 53� ot'Elie Re��eniie Act ofof 1978, dealii�g �a�itE� issuance ol'Fo�•m 1V-2's to coinmou la�s� emplayees, Respa3ident is E•es�onsil�le for �oil� federal and State tEnemploJ=ment i►�su�•ance coverage ancf standarcf «To�•ker's Compensation iE�suraE�ce co��e�•�ge. Respondent sh�ll e�isure co��pliartce ivith all federal and Siate tax [a�+�s aiid 4��ithl�o[ding rec�uireine�its. '�'he City of De�ito�� sliali not be (iable to Res��ondent a�• its e�nplo}�ees foE• any UneEn��loy��ient or �1'o��kers' Con3pe�3sation cot�erage, or fede�•al or State �i�ithholding requirements. Co►�tractor shalE inde►nnify tl�e City af Benton and s13a11 pay a[l costs, penllties, c�r losses resulting fi•om Respo��dent's o3nission or breach of tl�is Sectian. G2. DRUG FREE ��'ORKPLAC�: TE3e co�ttractor shall eon�pl�= GS°ith t�ie applicab[e {�ravisions afthe Drug-I�rce \�Fnrk Place Aet of' 1958 {Piiblie La«� 100-G90, Title ��, Su6title D; �11 EJ.S.C. 701 ET SF.,Q.} �nd at�aintai�� a drtEg- fi•ee n�or�: en��irom��ent; aiicl the final ru[e, goverita�ient-��ide rec�ui�•eit�ents for drug-fi•ee �vork place (gt•ants), isst�ed b�� the O�ice of Niana�emei�f and Budget �E�d the Departine3�t of DefeE�se (32 Cf�R Part 280, Sul��a�•t F) to in�E�le�ne�t t�e pra��isions of tE�e DE•iig-F�•ee «'orE: Plaee ��e! of 1988 is i�3corpof•atcd by re%rence and the coc�t�•actor shall co�i�ply n�ith the E•ele�rant pE•ovisions ihereof inclt�ding a�� a�nend�nents to tEie fina] ru[e that may ]tere�tler be issued. 63. RESPOI�DENT LIABILiTY FQR DAl1�1AG� TO GO'�T�RNNi�1�T PROPERTY: The 1Zespondent sE�111 be liai�Ee ior all d1��ages to ga�=eE•n�nei�t-o«�ned, leased, or occupied propert}' and ec�t�ipnient caused i�}� tl�e Respondent and its e�3iployees, �gei�Fs, subcontractors, a��d suppliees, incli�ding ai�y deli��ery or elrtage con�pan}�, iE� con►�ectia�� RFP 5075 Page 15 of 20 ��itl� aE�y per6orniaiice �►�rsuaE�t to the Coni��act. TE�e Res��o��deE�i sE�all noti#j� the City of De�ttor� 1'rocureme�it �lanager in �rriting af a��y suc}� clainagc �i�ithin o�ie (1) caic�idar day. 6�. FORCE MAJELiRE: The City of Denion, an}� Ci�sto��er, ftl3a fliC: Respoi�de�it shaEl not �e responsib[e far pe�•fori��ance ��nder tE�e Contract slzould it be p�•evenEed li•o►n perlorniai�ce by a►3 �et af «�ar, o�•cfcr of leg�l aatE�ority, ac# of God, or flther un�voidable cause not attril�at�ble to tE�e 1'a��li or �iegligence of tk�e City of De�iton. I�t the event of an accurre��ce imder this 5eciioii, the Respondei3t �S�il[ be etec�sed fi-oui an3� furtl�er performance or obse�vince of the �•equirements so affecled i'oE• as long as suclt cirec��nstanees pre��ail and the Aespo�dent continues to use commei-ciatly reasonable efforts To reco�nit�ence perfor�nance or obser��ance i��hene��er and Eo i��l�ate��er extent possible ��ithout dela��. Ti3e RespflndenF s��all im�7�ediateJy �iotify tE�e City of DeE�toii Peacureme�3t Nlanager 6y- telepha��e (to be conC�i�ined in ��ritiE�g �ti=ithin five (5) calenda�� da}�s of the ineeption of such oec�icrence) and describe at a re�sonal�lc Eevcf of dctail if�e circumsta�ices causiaig tlie non-perfor�na��ce or delay in �erfo�•n�ai�ce. 65. NON-�'VAIVER 0� IiIGHTS: Pail�a•e of a 1'art}� to rec��iire perfarmance b}� anoti�e�• Part�� under tl�e CoE�ta•�ct w=ill not afleet the right of such Pai�t}� to rcquire perfori��ance i�� the futuE•e. No dela}�, failure, ar �vai<<er of eitl�er Pa��ty's esereise or p�trtia) exercise of any rigl�i or re�nedy i�nder the Co��Er�ct sh�ll operate tn li�nit, im��ir, p3•eclude, cance[, ��ai��e or otE�er�rise affect sc�ch i•igiit ar reinedy. A�t=aiver by a i'a�•t�� of a��}� b�•eaclt of a��y te�•n� of tlie Cont�'act �i�ill not be construcd as a�i�aiver of anp coE�tinuing oE• suceeeciing breach. 66. NO �'yAIVER OF SOVEREIGN IMMUI\`ITY: The 1'a�•ties e�press[y agree tl�a[ izo peovisioE� of ihe Contrlct is in any �a�y intended to constitute a n�aiver bp the Cil�� c�t'Denton of �ny IlE]il]Uilt�teS II'011l SUIt Dl' fi'031t Ii�i�lllily tftat tf�c City of llenton �nay have by opc��ation of lau-. 67. RECORDS RETENTIOA': The Respondent sl�all �•et�in all fina�ici�E ��ecorc3s, su��po►-ting docame�its, statistical records, aiid a��}� otiier reea►•ds or boaks 3•elatiiig to the peE•fo�•inances catled fo�• i�� t}�e Cantracl. The Res�ondent si�all reEain a[l such recards for a period of four (�l) years afler ihe expiralion af the Contraet, or u�itil tlie CYA or State fluditor`s Oftice is satisfied that all audit ai�d litigatian i��atters are resoh�ed, �►�l�iclic��er period is longcr. `I'i�e Respondent siiall gr1��t �ccess ta �11 boofis, records and docume�its peE�€ine�zt to tf�e ContE��c[ to the CPA, tf�e State Auditor of Tes1s, aiid any fede�•al go��er��menlal entity that I��s �utlio�•ity io �•evieE�� records d�ie to federa] fu��ds being spent ander the Co��tract. RF�' 5075 i'age 16 of 20 Exhibit B S�ecial Terins a��d Conditions Coutract Terms T13e cont��act ter��i «�ill be one (1 } year, effective fr•o�t� date of a��jard. The Ciky and tlle Ali�aE•cfed Cont�•acto3• sE�all liave t[�e optio�i ta re�le�v tl�is co»t�•act fai• a�� ac�ditiot�al fo��r (4) of�e-year pea•iods. The Contract s1�a11 com�i�e�ice upon the iss��ance of a Notice af fl�vard by t��e Cit}� of De��ton ant� sf�all auton�aticaIl�r re►�e��r each year, fi•oin the date of a«�ard by City Cou��cil, uE�less either �arty notifies t�ie otl�er priar to tl�e se�zeduled t•enetival date. At tlie sale option af the City o� Dento��, tkze Contract ma�� be fiirtl�e�• e�te��ded as ��eec�ed, not to exceed a total of si� (6) months. Total CoYitracf Amount Tf�e contact total fa�• se��rices sl�all not eseeed $590,000 per total coj�traet ter��i. Prici3�g sE�all be pe�• Ex�iibit C attached. Cao erative Purchasin / Pi Tback O tion S��pplier I�as taic�n eaception to t(�e originai RFP ter��s regarding Cooperative Pe�rcl7asi��g/Piggybaci: option. S��pplie�• ��ri31 o��iy aila�v atl�er gove�•ni��e��tal entities to pEirchase ��a�erial 0�1 RFP SQ75 if a} tl�e gove�•tt��tental e��tity is located �i�itl� Tecl�li��e-Fort ��1TOrtli's a�rtl�o��iz�d sales area b} all terms {pi•ice, lead ti�ne, pa}�menT} 11111311Tillll� ord�r c�uantities, �ninimuiti� order ��no��r�t) must �natcli su}�plier's �roposal RFP 5075. RPP 5075 Page 17 of 20 Exhi�it C cz.�� or ��or� � �r�� o�� o��z�r.,�r o� ��i�rc �a+��x�.�TY �c�x,��af;�. z�sr��A+��a�� .� 73�USIN�S� f��.�Y� � �Y QXY�;,S'T�UNN�I�`, .�S�N� �.� �� II�� 011�1'514�01'�tAii7�: r�QCY1��i�1�! �"� `� • ?., .�ddress (��ii�ea�a�l �'lr�ce of �3�js��css): �i��'� � ��►"�'� �� . �'� � �o`��1, �� y� � �1`� 3. Does }�o��• car��5��ry l��re t�� estn�s3is�ied ��1��sic�El Xjresa�3ca 9�i tf�e State of'1 �x�s, o�� tls� Cit�� c�f De�ttaE�? Y� �. '��xPa�f�xIpl�: j�4j��..t'�,;��O��iY �.. S. �3l1]itf� t�4ICIi'CSS pfl�i�3��t�c�y+ contacEi Yt4�i+�� `�eG�� i�� i�C, 4ot3h G, i�le�siicAc[dre�s, �'i�� ,►�w�'`j, '�c.��iv.2,Y �nC, a�ww� 7, �`eke��lio��e: � 1`� Y 5 6�•' °�`� � n B, �ax: `'dl`� .. �b� �' "'�`� b7.� � �ocl�., �� ay�ce, �i�r. #�,a�,s�i�, P��tiQ�s�Za, '��1�r�.�i11� i��vo�S��'� %ea l, C�t��erT,oca�io��s: ��,�e., r't'x i�ii�3� t�a��G� �`�w � F��ei��fto�,Ia�. io, Oi��aialzalio�3 Clnss; ��t�i�le�slyij> �iHi1S'fC�4lfii Co1�to�'ai4o�t•� �ssocz�tio�� 11.11niel3st€�t�lis�iecl; ��i�� 12, Pnr3t�e�'p��si��essl�T�ii�et �� 13, DateofUissol�i�ioi�: �� . Si1�S1(�ls�Tj' (1�; t��" � 1S. I3isfo��ieal{yr USitfertitiilzed�3t�sine s; ITas�q (T�io ��Q �� ,�s,�so,ti'� �1`�' S3a� U�to��2�'� �� r:1�� 5,�n��V.'� r11� �G. P��li�ci��als n►��i Of�7ce�s.��'�� y�� ; c,oc� � l'lcflse �ioi�fl respo�tsibilifies �v��lt flt E��ti��;o�ea�n��u�i�a��a�s�i�c�c:�yAnc�, ��ecafid��, �t+��'��r,� ��,�4�i� ¢,aonrl4tt��, �'��v. �sn�t{G.S 17. K�y�'$k'SOS111Ci flsit� RCS��Q1iS1�f�lfi�s: ��>� y`�et, bl,��t � s��,�, d�`�~�d° � b�t°'�v�4 � Sal��ori� N� �?� 4 �f�. �Ce�l'�o� 74rs„�r�� l'Jca�e�rtet�il��es�yan�i[�liiiies��illttl�e��E�YCO�e�tel�ke�tpersoia��e1. �mE�� 5�7�� 1 RI�H 50')f� PAQ� �!'f aF t2�F' f�.ri07� !'apo 1� oE 20 c�T� arAr�x�;� �t%�l�' XS'OZt. S�C7.�'PLY OP �Z��G'.�'��XC UTILITY PO�,"�'iVX�JC�. X�SYJi,AT�RS 1 S. N��ti�er oPI}e��soty��e1 b}� nise4pfi�ye: Disci�>liaie ) � 4 %��E�3ber ofStafP �I Rcgisterc<l [9. II�s ��o�� co��s�� f�lcd o�� bee�f �t��►��e<i ��i r�3�y� �Ii��ilfiflllliiYO�i�l�i� S�o��i� Gfl�i�p�ti�� r��d �E�� n1i'11�P Qi1 ii GOk1I1'ACkI�'1EItIl1 f�1C��iS{ {�It'e�'eEECS t111C�(�i' �rd411 411i`1'�13� C4ll7jJRttjt l]EiutC QY �€Iljf oit�er coji��a��St �i��ne7 ��so 1»•a��lc�c� d�t!nfils of 31►e issnes �nci a�esatulio3k �f a�=7iln�le. I��cl�Fde ��11`S[11�5 SS'�l�l'P. �11'It@i' �S'fl3 �)kt°OJ1'6(3� [V�%� 2�, �'le�se �r�YFir_l� �I lenst (�) tlu�ee��e£��ances ��rcfe��rrG(,v rti��t��`c��rrlftles) a�}d caa�te��ct ��xouc�t�, T�iela�tie pkoject clesaa'i}�33on, co�itaat �in3�3es, �}nsirior�, ��ct 4�'�t1�il2�itlA�ll]c�itl8 �IY(� tQlepl�o�ie �m��Uc�� for eael� ��afe��e►�ce listcd, Scc: A(t�cl��iyei�t-I�. � i, I��ntc you e��ei� cle�aEaitecl o�� x• J��iletl #� cam��eto ��o��f�'act ��ilex• 3�0�� ct��s�t co��i�3€�t�}, 11E11714 a1.` tEll�� P�E161' CaF�1��itlst IS�t11C`l ��S4j 11'�3$1'� {illt� iS'�1��? Glve ��e a��cl Icl��l�a�te ��i�t�fE�ei` o�0�i=�ier. 1�f f f� 22. Ha3�e J+oi� eve�� 3�ad n coi�ir�ct fcr��i3��fcc1 �y tl� Osi�ire�? J� �a, ��itoic t��d �ti�ly��2 G3��e ��n�i�e ��ul te1e��Izona x�tti��E�e�• (s} 0�'0�3Ft►e�� (s}, 1��i 23, S�ns }�a�ir ec►��ni�y it�t��le�ite�iteti �� ?it��>loyce I�Ief�lil� att4� �`�%#y� �'�•o�r�t7� cvrn�l��t�t ��Il�� 29 CI�R i910 "G911G1'!!� �i]fINSIE�� S��1t74lfll'(IS" i1E]{II01� 29 C��Z �32G "Ge��e►al �ni�slr��ctioi� Slai�dnr�{s" as #l�e�' €►��ly td ��o�Er Ca�y��a�ls�'s c►isto�3�at�{ acii�rities? 1a(Et�:flt��c��,osl}a.�t�l}7lsfasi}eu�eblo�l��src��.se�iclt fa�'��la <9tsa IS�Eye�� f1nD�1RDS�,�i_too le��el�3R� kevtilnit4e�-19�G � rtr•� so�� E'AG� A2 0� CtF'f' �1�07�i �aaa t9 ar2o Exhibi�l Respontier��'sN�me: �"�C�fi�zer I�tC. •�F ��7� - �MCin� Sf�e�fi �or SU�P�.Y Q� E€.ECi�tI� ��'i�iTY FO�.YMER �t1€S�iAT�RS T.`� responde: r_�sncJf comple�e �hefnlfo�,Ir.S settion, v�hich dleec-Jy correspornis zo �re spe�:,r�•ura�orrs. 7:'�e wr:-..racCarsl^�r:t n� rnpk� �ang�: �a xh;s,�orr.�c't L� Fra�:sck Pro}�osaT prEcir� (iR� D.=S'�I3�t.A"F7Q:+[): ES% E�m�..^� IT� �.�� U4I�1 E7�scr'sption 14S3s�t�a��er I�iaieT� lJn�Price �Cxtend�d3�ric.� I}el�ir�zy Q7Y" s {Yd�Al2t7) 1 254 � F�. Ir��or,�;zcecPost:;ssem.bIy 4:�io�r�s 2J'DS��=72046 $ 32.9.�6 S 52,..''''cr.$E} a-4C3w��s Niactean E2t'1070Xi 99D $ . 2 :50 �, i L^sula:nr,Dezder�d(50.004�} qhio$r.,.� 505�064S2R't0 w�7'LG2 S 'f3,E03.D0 f"r8w�ekS 3 r�cl.ear sz�s.;ossFxo7 � s 2� �A ]rsulator.POSt o�=6E�xss P25tl�'�590"04 S'24i.44 3 5�7�..�6 12-K4weekS 3�zcL� Y.21K070VX;S � - 4 72 � �nsid�tor,�pdenc�,��kV{25.OJ�� OhSo"r,,ss S025Dn"4S20�D S"o1.i2 � S,E:�.3� 6�Etiveeits ��n 5143'�oz:-7C04 g 5 2.50 �.=. 1ruL'.ator. D�de�xf (25c1� Qhio �rass G?'IG�021S �70.a"�., 8 2,70i.5(7 1 vre6iC ' "Fo1�FCostoFFroGacYS{.A.-�nea3) S ?�.O,S76.4a * EsEmt.fed z:r:�at quzt�ity 3s tese best e�im2Ce z�ra�'I ��t �e �r.e i�e RFP �.v�s i�.red �:1d maY vary signrf,�n�y :ra o:� down `ra: n year to ye�:. � t�e m"t,ia: 4rde: irsdiCa�d On P-a � 7 of tY�e "3-C�rtaCdi S X Y�S 1+i4 9.. pec�catiQrs be deC'n+erecE ay Ularcn i5, 2aZ3'? • 1f "Na", date insulatars c�rt be d�I"nr�-e� Payrn e�e xer:+= �p�:co�ts Payrr:enrte;r.'�s $orthe Gty of �ton a rs ypically 3(3 Gzys PleaSe ir.dicaCe :}:e addicin7zl �iscoz:r.t extendea xo each r:�anr.�,fy ic:voir:e tf�a� �s paia wrtisia tf�e a� r:e �eriod "snd`�catec aelow_ M,�'.�.Ik�3d.�j/N7LG.'�z F.67:iY1��:,'1 M'�6��.�.•�-"1�a7��t�C1;'�O�I�[Sr�Of�]��.y`�!. ".nv�ce Pai�'sr 2D d2�5 9.iJ0°k ):rvoicC ?8id in �3 d2ys q.ii4°!o ]�voiGE t�'d'Ed «� 10 clayS . �o 3 m o *N4T'�: PfvCli�i� 5't 1P.i.L iNCLET�E,.4L.l.. CA�S TO E)�i„1V�1� GOODS AS SP�C�i-7�B FL`� E3�ST3fZ4TH?[�E. � b a n> 0 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF POLYMER INSULATORS FORDENTONM[_JNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITLJRE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5075-SUPPLY OF POLYMER INSULATORS AWARDED TO TECHLINE, INC. IN THE NOT TO EXCEED AMOUNT OF $590,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of electric utility polymer insulators for Denton Municipal Electric in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP N [_JIVIBER CONTRACTOR AMOUNT 5075 Techline, Inc. $590,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or pernutted to be performed by the City of Denton under the RFP 5075 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated proposals, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNg'ER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY A �� ' BY: 4-ORD-RFP �07� � 411111,"�tl;*IIIIu �'"h�j',tl;"Illltl�':q II AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Phil Williams at 349-8487 ACM: Bryan Langley �� SUBJECT Consider adoption of an Ordinance accepting competitive proposals and awarding a contract for the purchase of porcelain station post insulators for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5023-Supply of Porcelain Station Post Insulators awarded to Victor Insulators, Inc. in the not to exceed amount of $280,000). The Public Utilities Board recommends approval (6-0). RFP INFORMATION Denton Municipal Electric (DME) has substation projects approved in its five-year Capital Improvement Plan that will require the installation of porcelain station post insulators. Porcelain insulators are used to isolate electrical conductors from ground potential. DME uses three types of porcelain station post insulators in substations for three different voltages: 1381cV, 691cV, and 13.21cV. These insulators provide electrical isolation and stnictural strength. They are constnicted of glazed porcelain and have metal end pieces for attaching to stands, switches, and electrical devices. Orders will be placed based upon project needs. Request for proposals were sent to 222 prospective suppliers, including three Denton firms. In addition, specifications were placed on the Purchasing website for prospective suppliers to download. Four proposals were received. Confidential negotiations were completed and a Best and Final Offer (BAFO) was requested from the respondents. The BAFO resulted in an average of 1.6% savings from the original price proposal. Proposals were evaluated based upon published criteria, including price, delivery and probable performance by the supplier. The proposal received from Victor Insulators, Inc., provided the highest evaluated score, resulting in the best value for the City. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 12, 2012, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve a one year contract, including the option to renew this contract for four (4) additional one year periods, with Victor Insulators, Inc., in the not to exceed amount $280,000 over the potential contract term. Agenda Information Sheet December 4, 2012 Page 2 PRINCIPAL PLACE OF BUSINESS Victor Insulators, Inc. Victor, NY ESTIMATED SCHEDULE OF PROJECT The initial term of this contract is for one year ending December 4, 2013. The City and Victor Insulators, Inc. shall have the option to renew this contract for four (4) additional one year periods. FISCAL INFORMATION The costs for material purchased under the proposed agreement will be funded from project accounts on an as needed basis. The worlc proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission Transmission Cost of Service Program (TCOS). EXHIBITS Exhibit 1: Evaluation/Ranlcing sheet Exhibit 2: Draft Public Utilities Board Minutes Exhibit 3: Contract Respectfully submitted: � )� �� - �� Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1-.�IS-File �023 E�iibit 1 RFP #5023 Pricing and Evaluation Porcelain Station Post Insulators November 12, 2012 Supplier Irbv Wesco Techline Techline Techline Victor Insulators, Inc./Keasler Supplier Location Fort Worth Irving Fort Worth Fort Worth Fort Worth Richardson Manufacturer NGK-Locke Lapp Lapp Ohio Brass NGK-Locke Victor TR 227, 27kV Estimated Annual Quantit 18 Unit Cost $86.10 $93.18 $85.42 $107.79 $84.36 $83.00 Estimated Annual Cost $1,549.80 $1,677.24 $1,537.56 $1,940.22 $1,518.48 $1,494.00 TR 278, 69kV Estimated Annual Quantit 9 Unit Cost $264.00 $309.09 $283.33 $341.34 $258.55 $255.00 Estimated Annual Cost $2,376.00 $2,781.81 $2,549.97 $3,072.06 $2,326.95 $2,295.00 TR 289, 138kV Estimated Annual Quantit 120 Unit Cost $398.00 $431.82 $395.83 $441.64 $390.58 $384.00 Estimated Annual Cost $47,760.00 $51,818.40 $47,499.60 $52,996.80 $46,869.60 $46,080.00 Estimated Total Annual Cost $51,685.80 $56,277.45 $51,587.13 $58,009.08 $50,715.03 $49,869.00 Estimated Tota15-Year Cost (assuming 3% inflation per year & 3% $282,639.14 $307,748.16 $282,099.57 $317,217.43 $277,330.57 $2%2,%04.13 breakage) Minimum Order Amount $8,500.00 ? $10,000.00 ? $8,000.00 $10,000.00 Delive (weeks after recei t of order) 14 11 12 6 14 9 Exce tions Yes+All or none Evaluation Indicators of probable perforxnance 9 10 10 10 10 10 Delivery 4.29 5.45 5.00 10.00 4.29 6.67 Total cost 77.19 70.89 77.34 68.77 78.67 80.00 Total Evaluation Points 90.47 86.34 92.34 88.77 92.95 96.67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 DRAFT MINUTES PUBLIC UTILITIES BOARD November 12, 2012 After deternuning that a quonim of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, November 12, 2012 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Absent: Chairman Dicic Smith, Vice Chair Billy Cheelc, Randy Robinson, Barbara Russell, Leonard Herring and Li1ia Bynum Phi1 Gallivan Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: CONSENT AGENDA: 4. Consider recommending approval of a contract with Victor Insulators, Inc. for the purchase of porcelain station post insulators (RFP #5023 - awarded to Victor Insulators, Inc., in an amount not to exceed $280,000). A motion to approve item 4 was made by Board Member Cheek with a second by Board Member Herring. The vote was 6-0. Adj ournment 9: 53 am Exhibit 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND VICTOR INSULATORS, INC (RFP 5023) THIS CONTRACT is made and entered into this day of A.D., 2012, by and between Victor Insulators, Inc., a corporation, whose address is 280 Maple Avenue, Victor, NY 14564, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home nile municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the City's RFP # 5023 Su�lv of Electric Utilitv Station Class Porcelain Insulators, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached heretq or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A") (b) City of Denton's RFP 5023 (on file at the office of the Purchasing Agent) (c) Standard Terms and Conditions (Exhibit "B") (d) Supplier's Proposal. (Exhibit "C"); These documents malce up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." RFP 5023 Page 1 of 20 IN WITNESS WHEREOF, the �a►�ies of these p��esenis �ave exeeuted tl�is ag�•eement in the year and day f�•st �bove w�•itten. ATTEST: JENNIFER WALTERS, CITY SECRETARY :• APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY I: �UPPLIER ��. �� BY: /��-�l� AUTHORIZED SIGNATURE Date: 1�.�� Na�ne: N �-fsS'r�/� � �-�� C� Title• � �-�s �J eV��o L� ��s).9��- ��z7 x �� r- _ PHONE N UMBER �'��' JZ� `� -- � � � � FAX NI.JMBER C�TY Or DENTON, TEXA� BY: GEORGE G CAMPBELL, CITY MANAGER Date: RFP 5023 Page 2 of 2Q Exhibit A Special Terms and Conditions Contract Terms The contract term will be one (1) year, effective from date of award. The City and the Awarded Contractor shall ha�e the option to renew this contract for an additional four (4) one-year periods. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. Cooperative Purchasin�/ Pi��yback Option This section will not apply as stated in the original RFP document Section I, Item 11. Other governmental agencies will not be allowed to piggy bacic the contract agreement in place with the Supplier. Performance Liquidated Dama�es This section will not apply as stated in the original RFP document Section III, Item B3. Minimum Order puantitv The City accepts that freight will be prepaid and allowed for individual orders of $10,000 or more. Additional fees may apply for orders that do not meet the minimum order amount. Price Discount Supplier will offer a 1% discount for invoices paid in less than 10 days. Price Adiustments Prices are firm through December 2013. The price adjustments will be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PP� Porcelain electrical products and components (PCU3271103271103) as found at (htt�://www.bls.�ov/��i/ho�n�.ht�n). The price will be increased or decreased annually based upon the percentage change of the January 2013 PPI to the latest published index prior to January 1 of renewal year. Total Contract Amount The contact total for services shall not exceed $280,000 per total contract term. Pricing shall be per Exhibit C attached. RFP 5023 Page 3 of 20 Exhibit B City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Dra��ings and other requirements included in the Cit�T of Denton's solicitation are applicable to Contracts/Purchase Orders issued b�T the Cit�T of Denton hereinafter referred to as the Cit�T or Bu�Ter and the Seller herein after referred to as the Supplier. An�T deviations must be in ��riting and signed b�T a representative of the Cit�T's Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal response, Invoice or Statement shall serve to modifiT the terms set forth herein. If there is a conflict bet��een the provisions on the face of the Contract/Purchase Order these ��ritten provisions ��ill talce precedence. B�T submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be governed b�T the follo��ing terms and conditions, unless eiceptions are dul�T noted and full�T negotiated. Unless other��ise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall appl�T onl�T to a Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall appl�T onl�T to a Solicitation to purchase Services to be performed principall�T at the Cit�T's premises or on public rights-of-��a�T. 1. SUPPLIER'S OBLIGATIONS. The Supplier shall fi�lly� and timely� pro��ide all deli��erables desciibed in the Solicitarion and in the Supplier's Offer in strict accordance ��ith the terms, co��enants, and condirions of the Conhact and all applicable Federal, State, and local la�� s, n�les, and regulations. 2. EFFECTIVE DATE/TERM. Unless othei��ise specified in the Solicitarion, tlus Contract shall be effecti��e as of the date the conhact is signed by� the Cin�, and shall continue in effect unril all obligarions are pei�ormed in accordance ��ith the Conhact. 3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier ��ill package deli��erables in accordance ��ith good commercial pracrice and shall include a pacl�ing list sho��ing the desciiprion of each item, the quantin� and uiut price unless othei��ise pro��ided in the Specificarions or Supplemental Teims and Conditions, each slupping container shall be clearly� and permanently� marked as follo��s: (a) The Supplier's name and address, (b) the Cin�'s name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of � boxes, and (d) the number of the container beaiing the packing list The Supplier shall bear cost of packaging. Deli��erables shall be suitably� packed to secure lo��est hai�sportation costs and to conform to all the requirements of common cai7iers and any� applicable specification. The Cin�'s count or ��eight shall be final and conclusi��e on slupments not accompaiued by� packing lists. �. SHIPMENT UNDER RESERVATION PROHIBITED: Tlie Supplier is not aiitliorized to slup tlie deli��erables under reseiti�arion and no tender of a bill of lading �� ill operate as a tender of deli��erables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deli��erables shall pass to the Cin� oiil�� hen the Cin� actually� recei��es and accepts the deli��erables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deli` erables shall be slupped F.O.B. point of deli��ei�� unless othei��ise specified in the Supplemental Terms and Conditioi�s. Unless othei��ise stated in the Offer, the Supplier's price shall be deemed to include all deli��eiy� and transportation charges. The Cin� shall ha��e the iight to designate ��hat method of transportarion shall be used to slup the deli��erables. The place of deli��eiti� shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The Cin� eapressly� reseiti�es all iights under la��, including, but not limited to the Uiuform Commercial Code, to inspect the deli��erables at deli��eiti� before accepring them, and to reject defecri��e or non-conforming deli��erables. If the Cin� has the iight to ii�spect the Supplier's, or the Supplier's Subconhactor's, facilities, or the deli��erables at the Supplier's, or the Supplier's Subcontractor's, premises, the Supplier shall fiu7ush or cause to be fiu7ushed, ��ithout additional charge, all reasonable faciliries and assistance to the Cin� to facilitate such inspection. RFP 5023 Page 4 of 20 8. NO REPLACEMENT OF DEFECTIVE TENDER: E��eiti� tender or deli��eiti� of deli��erables must fi�lly� comply� ��ith all pro��isions of the Contract as to time of deli��eiy�, qualin�, and quantin�. Any� non-comply�ing tender shall coi�sritute a breach and the Supplier shall not ha��e the iight to subsritute a coi�forming tender; pro��ided, ��here the rime for pei�ormance has not y�et expired, the Supplier may� norify� the Cin� of the intention to cure and may� then make a conforming tender ��itlun the rime allotted in the contract. 9. PLACE AND CONDITION OF WORK: The Cin� shall pro��ide the Supplier access to the sites ��here the Supplier is to pei%rm the seiti�ices as required in order for the Supplier to pei�orm the seiti�ices in a timely� and efficient maimer, in accordance ��ith and subject to the applicable secuiin la��s, i�ules, and regulations. The Supplier ackno��ledges that it has satisfied itself as to the nature of the Cin�'s seiti�ice requirements and specificatioi�s, the locarion and essential characteristics of the ��ork sites, the qualin� and quanrin� of materials, equipment labor and facilities necessaiy� to pei�orm the seiti�ices, and any� other condirion or state of fact ��luch could in an� ��ay� affect pei%imance of the Supplier's obligarions under the conhact The Supplier hereby� releases and holds the Cin� haimless fiom and against any� liabilin� or claim for damages of any� kind or nattue if the actual site or seiti�ice condirions differ fiom expected conditions. 10. WORKFORCE A. The Supplier shall emplo�� only� orderl�� and competent ��orkers, sl�illed in the pei�ormance of the seiti�ices ��luch they� ��ill pei%rm under the Conhact. B. The Supplier, its employ�ees, subconhactors, and subconhactor's employ�ees ma�� not ��lule engaged in participaring or responding to a solicitation or ��lule in the course and scope of deli��eiing goods or seiti�ices under a Cin� of Denton contract or on the City�'s propei�� . i. use or possess a firearm, including a concealed handg�m that is licei�sed under state la��, except as required by� the terms of the conhact: or ii. use or possess alcoholic or other into�cating be��erages, illegal diugs or conholled substances, nor may� such ��orkers be into�cated, or under the ii�fluence of alcohol or diugs, on the job. C. If the Cin� or the Cin�'s representati��e notifies the Supplier that an�� orker is incompetent disorderly� or disobedient, has kno�� ingly� or repeatedly� ��iolated safen� regularions, has possessed any� firearms, or has possessed or ��as under the influence of alcohol or diugs on the job, the Supplier shall immediately� remo��e such ��orker from Contract seiti�ices, and may� not employ� such ��orker again on Conhact seiti�ices ��ithout the Cin�'s piior ��ritten coi�sent. Immigration: The Supplier represents and ��arrants that it shall comply� ��ith the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employ�ment ��eiification and retenrion of ��eiification forms for any� indi��iduals lured on or after No��ember 6, 1986, ��ho ��ill pei�orm any� labor or seiti�ices under the Contract and the Illegal Immigration Reform and Immigrant Responsibilin� Act of 1996 ("IIRIRA) enacted on September 30, 1996. 1 L COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: Tlie Siipplier, it's Subcontractors, and their respecti��e employ�ees, shall comply fi�lly� ��ith all applicable federal, state, and local health, safen�, and en��iromnental la��s, ordinances, i�ules and reg��latioi�s in the pei�ormance of the seiti�ices. including but not limited to those promulgated by� the Cin� and by� the Occupational Safen� and Health Admiiusharion (OSHA). In case of conflict, the most sriingent safen� requirement shall go��ern. The Supplier shall indemivfy� and hold the City� haimless from and against all claims, demands, suits, acrions, judgments, fines. penalties and liabilin� of e��eiti� kind aiising from the breach of the Supplier's obligations under tlus paragraph. Environmental Protection: The supplier shall be in compliance ��ith all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (�2 U.S.C. §7�01 et seq.) and the Federal Water Pollurion Control Act, as amended, (33 U.S.C. �1251 etseq.). 12. INVOICES: A. The Supplier shall submit separate in��oices in duplicate on each purchase order or purchase release after each deli��eiti�. If partial slupments or deli��eiies are authorized by� the Cin�, a separate in��oice must be sent for each slupment or deli��ei�� made. B. Proper In��oices must inclucle a unique in��oice number, the purchase orcler or cleli��er�� orcler number ancl the master a�reement number if applicable, the Department's Name, ancl the name of the point of contact for the Department. In��oices shall be iteinized and transportation RFP 5023 Page 5 of 20 charges, if an��, shall be listed separately�. A copy� of the bill of lading and the freight ��a��bill, ��hen applicable, shall be attached to the in��oice. The Supplier's name, remittance address and, if applicable, the tax idenrificarion number on the in��oice must exactly� match the information in the Vendor's registration ��ith the Cin�. Unless othei��ise insri�ucted in ��iiring the Cin� ma�� rely� on the remittance address specified on the Supplier's in��oice. C. In��oices for labor shall include a copy� of all rime-sheets ��ith trade labor rate and deli��erables order number clearly� identified. In��oices shall also include a tabularion of ��ork-hours at the appropiiate rates and grouped by� ��ork order number. Time billed for labor shall be limited to hours actuall�� orked at the ��ork site. D. Unless othei��ise expressly� authorized in the Contract, the Supplier shall pass tluough all Subconhact and other authorized expenses at actual cost ��ithout markup. E. Federal excise taxes, State taxes, or Cin� sales taxes must not be included in the in��oiced amount. The Cin� ��ill fui7ush a tax exemprion certificate upon request. 13. PAYMENT: A. All proper in��oices need to be sent to Accounts Pay�able. Appro��ed in��oices ��ill be paid ��itlun tlurty� (30) calendar day�s of the Cin�'s receipt of the deli��erables or of the in��oice being recei��ed in Accounts Pay�able. ��luche��er is later. B. If payment is not timely made, (��er paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Te�as Government Code Section 2251.025 or the magimum la�i ful rate; e�cept, if pa��ment is not timel`� macle for a reason for �i hich the Cit�� ma�� i ithholcl payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for �i ithholclin� pa��ment ha��e been resol��ecl. C. If partial slupments or deli��eiies are authorized by� the Cin�, the Supplier �� ill be paid for the partial slupment or deli��eiti�, as stated abo��e, pro��ided that the in��oice matches the slupment or deli��eiti�. D. The Cin� ma�� ithhold or set off the entire pay�ment or part of an�� pay�ment othei��ise due the Supplier to such extent as may� be necessaiti� on account of: i. deli��ei�� of defecti��e or non-coi�forming deli��erables by� the Supplier; ii. tlurd pai�� claims, ��luch are not co��ered by� the insurance ��luch the Supplier is required to pro��ide, are filed or reasonable e��idence indicating probable filing of such claims: iii. failure of the Supplier to pay� Subconhactors, or for labor, mateiials or equipment: i��. damage to the propeit�� of the Cin� or the Cin�'s agents, employ�ees or suppliers, ��luch is not co��ered by� insurance required to be pro��ided by� the Supplier; ��. reasonable e��idence that the Supplier's obligarions ��ill not be completed ��itlun the rime specified in the Conhact, and that the unpaid balance ��ould not be adequate to co��er actual or liquidated damages for the anticipated delay�: ��i. failure of the Supplier to submit proper in��oices ��ith purchase order number, ��ith all required attaclunents and supporting documentarion; or ��ii. failure of the Supplier to compl�� ith any� mateiial pro��ision of the Conhact Documents. E. Notice is hereby� gi��en that any� a��arded firm ��ho is in ai7ears to the Cin� of Denton for delinquent taxes, the Cin� may� offset indebtedness o��ed the Cin� tluough pay�ment ��ithholding. F. Pay�ment ��ill be made by� check unless the parties mutually� agree to pay�ment b�� credit card or electroiuc hansfer of funds. The Supplier agrees that there shall be no additional charges, surcharges, or penalties to the Cin� for pay�ments made by� credit card or elechoiuc funds hansfer. G. The a��arding or conrinuarion of tlus contract is dependent upon the a��ailabilin� of funding. The Cin�'s pay�ment obligarioi�s are pay�able only� and solely� from fimds Appropiiated and a��ailable for tlus conhact The absence of Appropriated or other la��fiilly� a��ailable fiands shall render the Contract null and ��oid to the extent fiands are not Appropiiated or a��ailable and any� deli��erables deli��ered but unpaid shall be retuined to the Supplier. The Cin� shall pro��ide the Supplier �� ritten notice of the failure of the Cin� to make an adequate Appropiiarion for any� fiscal y�ear to pay� the amounts due under the Conhact, or the reducrion of any� Appropiiation to an amount insufficient to permit the Cin� to pay� its obligations under the Contract In the e��ent of none or inadequate appropiiarion of funds, there ��ill be no penaln� nor remo��al fees charged to the Cin�. 1�. TRAVEL EXPENSES: All tra��el, lodging and per diem eapenses in coimection ��ith the Conhact shall be paid by� the Supplier, unless othei��ise stated in the conhact terms. 1�. FINAL PAYMENT AND CLOSE-OUT: RFP 5023 Page 6 of 20 A. If a DBE/MBE/WBE Program Plan is agreed to and the Supplier has idenrified Subconhactors, the Supplier is required to submit a Conhact Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day� after complerion of all ��ork under the contract Final pay�ment retainage, or both may� be ��ithheld if the Supplier is not in compliance ��ith the requirements as accepted by� the Cin�. B. The mal�ing and acceptance of final pay�ment ��ill constitute: i. a��ai��er of all claims by� the City� agaii�st the Supplier, except claims (1) ��luch ha��e been pre��iously� asserted in ��riting and not y�et settled, (2) arising fiom defecti��e ��ork appeaiing after final ii�spection, (3) arising fiom failure of the Supplier to compl�� ith the Contract or the terms of any� ��ai7anty� specified herein, (�) arising fiom the Supplier's conrinuing obligarions under the Contract, including but not limited to indemiun� and ��ai7ann� obligarioi�s, or (5) arising under the Cin�'s iight to audit and ii. a��ai��er of all claims by� the Supplier against the Cin� other than those pre��iously� asserted in ��iiring and not y�et settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any� special tooling or special test equipment fabricated or required by� the Supplier for the purpose of filling tlus order, such special tooling equipment and any� process sheets related thereto shall become the propei�� of the Cin� and shall be idenrified by� the Supplier as such. 17. RIGHT TO AUDIT: A. The Cin� shall ha��e the iight to audit and make copies of the books, records and computations pertaiiung to the Contract The Supplier shall retain such books, records, documents and other e��idence pertaiiung to the Contract period and fi��e y�ears thereafter, except if an audit is in progress or audit findings are ��et uiuesol��ed, in ��luch case records shall be kept unril all audit tasks are completed and resol��ed. These books, records, documents and other e��idence shall be a��ailable, ��itlun ten (10) business day�s of ��ritten request Further, the Supplier shall also require all Subconhactors, mateiial suppliers, and other pay�ees to retain all books, records, documents and other e��idence pertaiiung to the Contract, and to allo�� the Cin� similar access to those documents. All books and records ��ill be made a��ailable ��itlun a 50 mile radius of the Cin� of Denton. The cost of the audit ��ill be borne bti� the Cin� unless the audit re��eals an o��erpay�ment of 1% or greater. If an o��erpay�ment of 1% or greater occurs, the reasonable cost of the audit, including an�� tra��el costs, must be borne by� the Supplier ��luch must be pay�able ��itlun fi��e (5) business day�s of receipt of an in��oice. B. Failure to comply� ��ith the pro��isioi�s of tlus section shall be a mateiial breach of the Conhact and shall coi�stitute, in the City�'s sole discretion, grounds for terminarion thereof. Each of the terms "books". "records". ``documents" and ``other e��idence", as used abo��e, shall be coi�sriued to include drafts and elechoiuc files, e��en if such drafts or elechoiuc files are subsequently� used to generate or prepare a final piinted document. 18. SUBCONTRACTORS: A. If the Supplier idenrified Subconhactors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply� ��ith all requirements appro��ed by� the Cin�. The Supplier shall not iiurially� emplo�� any� Subconhactor except as pro��ided in the Supplier's Plan. The Supplier shall not substitute any� Subcontractor identified in the P1aiL ui�less the substitute has been accepted by� the Cin� in ��riting. No acceptance by� the Cin� of any� Subconhactor shall constitute a��ai��er of any� rights or remedies of the Cin� ��ith respect to defecti��e deli��erables pro��ided by� a Subconhactor. If a Plan has been appro��ed, the Supplier is addirionally� required to submit a monthly� Subconhact A��ards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day� of each month. B. Work pei%rmed for the Supplier by� a Subconhactor shall be pursuant to a��ritten contract beri�een the Supplier and Subcontractor. The terms of the subconhact mati� not conflict ��ith the terms of the Contract, and shall contain pro��isions that: i. require that all deli��erables to be pro��ided by� the Subcontractor be pro��ided in strict accordance ��ith the pro��isions, specificarions and terms of the Conhact: ii. prolubit the Subcontractor fiom finther subcontracting any� portion of the Contract ��ithout the prior ��ritten consent of the Cin� and the Supplier. The Cin� may� require, as a condirion to such fiuther subcontracring that the Subconhactor post a pay�ment bond in form substance and amount acceptable to the Cin�; iii. require Subconhactors to submit all in��oices and applicarioi�s for pay�ments, including an�� claims for addirional pay�ments, damages or othei��ise, to the Supplier in suff'icient time to enable the Supplier to include same ��ith its in��oice or application for pay�ment to the Cin� in accordance ��ith the terms of the Conhact: i��. reqiure that all Subcontractors obtain and maintain, tluoughout the teim of their contract, ii�surance in the ty�pe and amounts specified for the Supplier, ��ith the Cin� being a named insured as its interest shall appear; and ��. require that the Subconhactor indemiufy� and hold the Cin� harmless to the same extent as the Supplier is required to indemiufy� the Cin�. RFP 5023 Page 7 of 20 C. The Supplier shall be fully� responsible to the Cin� for all acts and omissions of the Subcontractors just as the Supplier is respoi�sible for the Supplier's o��n acts and omissioi�s. Notlung in the Conhact shall create for the benefit of any� such Subcontractor any� contractual relarionslup beri�een the Cin� and any� such Subcontractor, nor shall it create any� obligation on the part of the Cin� to pay� or to see to the pay�ment of any� money�s due any� such Subconhactor except as may� othei��ise be required by� la��. D. The Supplier shall pay� each Subcontractor its appropriate share of pay�ments made to the Supplier not later than ten (10) calendar day�s after receipt of pay�ment fiom the Cin�. 19. WARRANTY-PRICE: A. The Supplier ��ai7ants the prices quoted in the Offer are no lugher than the Supplier's cui7ent prices on orders by� others for like deli��erables under similar terms of purchase. B. The Supplier certifies that the prices in the Offer ha��e been ai7i��ed at independently� ��ithout consultarion. commuiucation, or agreement for the purpose of restricring competirion. as to any� matter relating to such fees ��ith any� other firm or ��ith any� comperitor. C. In addirion to any� other remedy� a��ailable, the Cin� may� deduct fiom any� amounts o��ed to the Supplier, or othei��ise reco��er, any� amounts paid for items in excess of the Supplier's cui7ent prices on orders by� others for like deli��erables under similar terms of purchase. 20. WARRANTY — TITLE: The Supplier ��ai7ants that it has good and indefeasible title to all deli��erables fin7ushed under the Contract, and that the deli��erables are free and clear of all liens, claims, secuiin� interests and encumbrances. The Supplier shall indemiufy� and hold the Cin� haimless from and against all ad��erse ritle claims to the deli��erables. 21. WARRANTY — DELIVERABLES: The Supplier ��arrants and represents that all deli��erables sold the Cin� under the Contract shall be free from defects in design, ��orkmai�slup or manufacture, and coi�form in all mateiial respects to the specificarions, dra��ings, and desciiprions in the Solicitarion. to any� samples fui7ushed by� the Supplier, to the terms, co��enants and condirioi�s of the Conhact and to all applicable State. Federal or local la��s. rules, and reg��larions, and indusriti� codes and standards. Unless othei��ise stated in the Solicitation, the deli��erables shall be ne�� or recti�cled merchandise, and not used or reconditioned. A. Recti�cled deli��erables shall be clearlti� idenrified as such. B. The Supplier may� not limit, exclude or disclaim the foregoing ��ai7ann� or any� ��arrann� implied by� la��: and any� attempt to do so shall be �� ithout force or effect. C. Unless othei��ise specified in the Contract, the ��ai7anty� peiiod shall be at least one y�ear from the date of acceptance of the deli��erables or fiom the date of acceptance of any� replacement deli��erables. If duiing the ��ai7ann� period, one or more of the abo��e ��ai7anties are breached, the Supplier shall promptly� upon receipt of demand either repair the non-conforming deli��erables, or replace the non-conforming deli��erables ��ith fially� conforming deli��erables, at the Cin�'s oprion and at no addirional cost to the Cin�. All costs incidental to such repair or replacement, including but not limited to, any� packaging and slupping costs shall be borne exclusi� ely� by� the Supplier. The Cin� shall endea��or to gi��e the Supplier ��ritten norice of the breach of ��ai7ann� ��itlun tturty� (30) calendar day�s of disco��eiti� of the breach of ��ai7ann�, but failure to gi��e rimely� norice shall not impair the Cin�'s iights under tlus section. D. If the Supplier is unable or um�illing to repair or replace defecti��e or non-conforming deli��erables as required by� the Cin�, then in addition to any� other a��ailable remedy�, the Cin� may� reduce the quanrin� of deli��erables it may� be required to purchase under the Contract fiom the Supplier, and purchase coi�forming deli��erables fiom other sources. In such e��ent, the Supplier shall pay� to the City� upon demand the increased cost if any�, incui7ed by� the Cin� to procure such deli��erables from another source. E. If the Supplier is not the manufacturer, and the deli��erables are co��ered by� a separate manufacturer's ��ai7ann�, the Supplier shall trai�sfer and assign such manufacturer's ��ai7ann� to the Cin�. If for any� reason the manufacttuer's ��ai7ann� caimot be fi�lly� transfei7ed to the Cin�, the Supplier shall assist and cooperate ��ith the Cin� to the fullest extent to enforce such manufacttuer's ��ai7ann� for the benefit of the Cin�. 22. WARRANTY — SERVICES: The Supplier ��ai7ants and represents that all seiti�ices to be pro��ided the Cin� under the Conhact ��ill be fully� and rimely� performed in a good and ��orkmanlike maimer in accordance ��ith generally� accepted indusriti� standards and pracrices, the terms, conditioi�s, and co��enants of the Conhact and all applicable Federal, State and local la��s, i�ules or reg��larioi�s. A. The Supplier may� not limit, exclude or disclaim the foregoing ��ai7ann� or any� ��ai7ann� implied by� la��, and any� attempt to do so shall be �� ithout force or effect. RFP 5023 Page 8 of 20 B. Unless othei��ise specified in the Contract, the ��arranty� period shall be at least one y�ear fiom the Acceptance Date. If duiing the ��ai7anty� peiiod, one or more of the abo��e ��ai7anties are breached, the Supplier shall promptly� upon receipt of demand pei�orm the seiti�ices again in accordance ��ith abo��e standard at no additional cost to the Cin�. All costs incidental to such addirional pei�ormance shall be boine by� the Supplier. The Cin� shall endea��or to gi��e the Supplier ��ritten norice of the breach of ��ai7ann� ��itlun tlurty� (30) calendar day�s of disco��eiti� of the breach ��ai7ann�, but failure to gi��e timely� norice shall not impair the Cin�'s iights under tlus section. C. If the Supplier is unable or um�illing to pei�orm its seiti�ices in accordance ��ith the abo��e standard as required by� the Cin�, then in addirion to anti� other a��ailable remedti�, the Cin� mati� reduce the amount of seiti�ices it mati� be required to purchase under the Contract from the Supplier, and purchase conforming seiti�ices fiom other sources. In such e��ent, the Supplier shall pay� to the City� upon demand the increased cost if any�, incui7ed by� the Cin� to procure such seiti�ices fiom another source. 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: If, ii�stead of requiiing immediate coi7ecrion or remo��al and replacement of defecti��e or non-conforming deli��erables, the City� prefers to accept it, the Cin� may� do so. The Supplier shall pay� all claims, costs, losses and damages atriibutable to the Cin�'s e��aluarion of and determination to accept such defecri��e or non-conforming deli��erables. If any� such acceptance occurs piior to final pay�ment, the Cin� may� deduct such amounts as are necessaiti� to compei�sate the Cin� for the dimiiushed ��alue of the defecti��e or non-conforming deli��erables. If the acceptance occurs after final pa��ment such amount ��ill be refunded to the Cin� b�� the Supplier. 2�. RIGHT TO ASSURANCE: Whene��er one pait�� to the Conhact in good faith has reason to quesrion the other pait��'s intent to pei�orm demand may� be made to the other pai�� for ��ritten assurance of the intent to pei�orm. In the e��ent that no assurance is gi��en ��itlun the rime specified after demand is made, the demanding pai�� may� heat tlus failure as an anricipatoi�� repudiation of the Contract. 25. STOP WORK NOTICE: The Cin� ma�� issue an immediate Stop Work Notice in the e��ent the Supplier is obseiti�ed pei�onning in a maiuier that is in ��iolation of Federal, State, or local guidelines, or in a maiuier that is determined by� the Cin� to be unsafe to either life or propei��. Upon norification. the Supplier ��ill cease all ��ork until notified by� the Cin� that the ��iolation or ui�safe condirion has been corrected. The Supplier shall be liable for all costs incui7ed by� the Cin� as a result of the issuance of such Stop Work Norice. 26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fiilly�, rimely� and faithfully� pei�orm any� of its material obligarioi�s under the Conhact, (b) fails to pro��ide adequate assurance of pei%imance under Paragraph 2�, (c) becomes insol��ent or seeks relief under the bankiuptcy� la��s of the Uiuted States or (d) makes a mateiial misrepresentarion in Supplier's Offer, or in any� report or deli��erable required to be submitted by� the Supplier to the Cin�. 27. TERMINATION FOR CAUSE: In the e��ent of a default by� the Supplier, the Cin� shall ha��e the iight to terminate the Conhact for cause, by� ��ritten notice effecti��e ten (10) calendar da��s, unless othei��ise specified, after the date of such notice, unless the Supplier, ��itlun such ten (10) day� peiiod, cures such default or pro��ides e��idence sufficient to pro��e to the Cin�'s reasonable sarisfacrion that such default does not in fact e�st In addirion to any� other remedy� a��ailable under la�� or in equin�, the Cin� shall be enritled to reco��er all actual damages, costs, losses and expenses, incui7ed by� the Cin� as a result of the Supplier's default including, ��ithout limitarion, cost of co��er, reasonable attorney�s' fees, court costs, and prejudgment and post-judgment interest at the maximum la��-fu1 rate. Addirionally�, in the e��ent of a default by� the Supplier, the Cin� may� remo��e the Supplier from the Cin�'s ��endor list for tluee (3) y�ears and any� Offer submitted by� the Supplier may� be disqualified for up to tluee (3) y�ears. All iights and remedies under the Conhact are cumulati��e and are not exclusi��e of any� other iight or remedy� pro��ided by� la��. 28. TERMINATION WITHOUT CAUSE: The Cin� shall ha��e the iight to terminate the Contract in ��hole or in part, ��ithout cause any� rime upon tlurty� (30) calendar day�s' piior ��ritten notice. Upon receipt of a norice of terminarion. the Supplier shall promptly� cease all fiuther ��ork pursuant to the Conhact. ��ith such exceptions, if any�, specified in the notice of termination. The Cin� shall pay� the Supplier, to the extent of funds Appropiiated or othei��ise legally� a��ailable for such purposes, for all goods deli��ered and seiti�ices pei�ormed and obligations incui7ed piior to the date of terminarion in accordance ��ith the terms hereof. 29. FRAUD: Fraudulent statements by� the Supplier on any� Offer or in any� report or deli��erable required to be submitted by� the Supplier to the Cin� shall be grounds for the teimination of the Contract for cause by� the Cin� and RFP 5023 Page 9 of 20 may� result in legal action. 30. DELAYS: A. The Cin� ma�� delay� scheduled deli��eiti� or other due dates by� ��ritten norice to the Supplier if the Cin� deems it is in its best interest If such delati� causes an increase in the cost of the ��ork under the Conhact, the Cin� and the Supplier shall negotiate an equitable adjustment for costs incui7ed by� the Supplier in the Conhact price and execute an amendment to the Contract The Supplier must assert its iight to an adjustment ��itlun tlurty� (30) calendar day�s fiom the date of receipt of the norice of delay�. Failure to agree on any� adjusted price shall be handled under the Dispute Resolution process specified in paragraph �9. Ho�� e��er, notlung in tlus pro��ision shall excuse the Supplier fiom delay�ing the deli��eiti� as norified. B. Neither pait�� shall be liable for any� default or delay� in the pei�ormance of its obligatioi�s under tlus Conhact if, ��lule and to the extent such default or delay� is caused by� acts of God, fire, iiots, ci��il commotion, labor disiuptioi�s. sabotage, so��ereign conduct, or any� other cause bey�ond the reasonable conhol of such Pai��. In the e��ent of default or delay� in conhact pei�ormance due to any� of the foregoing causes, then the time for completion of the seiti�ices ��ill be extended: pro��ided, ho��e��er, in such an e��ent a conference ��ill be held ��itlun tluee (3) business day�s to establish a mutually� agreeable peiiod of rime reasonably� necessaiti� to o��ercome the effect of such failure to pei�orm. 31. INDEMNITY: A. Defiiutions: i. °Indemiufied Claims" shall include any� and all claims, demands, suits, causes of acrion, judgments and liabilin� of e��eiti� character, ty�pe or desciiption, including all reasonable costs and expei�ses of litigarion, mediarion or other altei7�ate dispute resolurion mechaiusm, including attorne�� and other professional fees for: (1) damage to or loss of the propei�� of any� person (including but not limited to the Cin�, the Supplier, their respecri��e agents, officers, employ�ees and subcontractors: the officers, agents, and employ�ees of such subcontractors: and tlurd parties): and/or (2) death bodily� injui��, illness, disease, ��orker's compei�sation, loss of seiti�ices, or loss of income or ��ages to any� person (including but not limited to the agents, officers and employ�ees of the City�, the Supplier, the Supplier's subcontractors, and tlurd parties), ii. "Fault" shall include the sale of defecti��e or non-conforming deli��erables, negligence, ��illful misconduct or a breach of any� legall�� imposed sriict liabilin� standard. B. THE SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CITI�� INDEn�1NIFi'� AND HOLD THE CITY� ITS SUCCESSORS� ASSIC,NS� OFFI('ERS� EnIPLOI"EES AND ELECTED OFFICI �LS HARl�ILESS FROnI AND AC;AINST ALL INDEAiNIFIED CLAIAiS DIRECTLI' ARISINU OUT OF� INCIDENT TO� CONCERNINU OR RESiTLTINU FROAi THE FAULT OF THE SUPPLIER� OR THE SUPPLIER'S AGENTS� En�iPLOYEES OR SUBC�NTRACTORS� IN THE PERFORl�iANCE OF THE SUPPLIER'S OBLIUATIONS UNDER THE CONTR�ICT. NOTHINU HEREIN SHALL BE DEEnIED TO LInIIT THE RIC,HTS OF THE CITI" OR THE SUPPLIER (INCLUDINC,� BUT NOT LInIITED TO� THE RIUHT TO SEEIi CONTRIBUTION� AUAINST ANI' THIRD PARTI' �31I0 Ai�1I' BE LIABLE FOR AN INDEAiNIFIED CLAIAi. 32. INSURANCE: The follo��ing insurance requirements are applicable, in addirion to the specific ii�surance requirements detailed in the solicitarion document The successfi�l firm shall procure and maintain ii�surance of the ty�pes and in the miiumum amounts acceptable to the Cin� of Denton. The ii�surance shall be ��ritten by� a company� licei�sed to do business in the State of Texas and sarisfactoi�� to the Cin� of Denton. A. General Requirements. i. The Supplier shall at a miiumum cai7y� insurance in the ty�pes and amounts indicated and agreed to, as submitted to the Cin� and appro��ed by� the Cin� ��itlun the procurement process, for the duration of the Contract, including extei�sion optioi�s and hold o��er peiiods, and duiing an�� ai7anty� peiiod. ii. The Supplier shall pro��ide Certificates of Ii�surance ��ith the co��erage's and endorsements required to the Cin� as ��erification of co��erage piior to contract execution and ��itlun fourteen (1�) calendar day�s after ��ritten request from the Cin�. Failure to pro��ide the required Certificate of Insurance may� subject the Offer to disqualification fiom considerarion for a��ard. The Supplier must also foi��ard a Certificate of Ii�surance to the Cin� �� hene��er a previously� idenrified policy� peiiod has eapired, or an extension option or hold o��er period is exercised, as ��erificarion of continuing co��erage. iii. The Supplier shall not commence ��ork until the required ii�surance is obtained and until such insurance has been re��ie��ed by� the Cin�. Appro��al of insurance by� the Cin� shall not relie��e or decrease the liabilin� of the Supplier hereunder and shall not be constiued to be a limitarion of liabilin� on the part of the Supplier. i��. The Supplier must submit certificates of ii�surance to the Cin� for all subconhactors prior to the RFP 5023 Page 10 of 20 subcontractors commencing ��ork on the project. ��. The Supplier's and all subconhactors' insurance co��erage shall be ��ritten by� compaiues licei�sed to do business in the State of Texas at the time the policies are issued and shall be ��ritten by� compaiues ��ith AM Best ratings of A- VII or better. The Cin� ��ill accept ��orkers' compensation co��erage ��ritten by� the Texas Workers' Compensation Insurance Fund. ��i. All endorsements naming the Cin� as additional insured, ��ai��ers, and norices of cancellation endorsements as ��ell as the Certificate of Ii�surance shall contain the solicitarion number and the follo��ing infoimation: Cin� of Denton Mateiials Management Deparhnent 901B Texas Sheet Denton. Texas 76209 ��ii. The ``other" insurance clause shall not apply� to the Cin� ��here the Cin� is an additional insured sho��n on any� policy�. It is intended that policies required in the Conhact, co��eiing both the Cin� and the Supplier, shall be coi�sidered piimaiy� co��erage as applicable. ��iii. If insurance policies are not ��ritten for amounts agreed to ��ith the Cin�, the Supplier shall cariti� Umbrella or Excess Liabilin� Insurance for any� differences in amounts specified. If Excess Liabilin� Ii�surance is pro��ided, it shall follo�� the form of the piimaiti� co��erage. ix. The Cin� shall be enritled, upon request at an agreed upon location, and ��ithout expense, to re��ie�� certified copies of policies and endorsements thereto and may� make any� reasonable requests for delerion or re��ision or modificarion of particular policy� terms, conditions, limitations, or exclusioi�s except ��here policy� pro��isions are established b�� la�� or regularions binding upon either of the parties hereto or the undei��riter on any� such policies. x. The Cin� reseiti�es the iight to re��ie�� the insurance requirements set forth duiing the effecri��e peiiod of the Contract and to make reasonable adjustments to insurance co��erage, limits, and exclusions ��hen deemed necessaiy� and piudent by� the Cin� based upon changes in statutoi� la��, court decisions, the claims lustoiy� of the industiti� or financial condition of the insurance company� as ��ell as the Supplier. xi. The Supplier shall not cause any� insurance to be canceled nor permit any� insurance to lapse duiing the term of the Contract or as required in the Contract. xii. The Supplier shall be respoi�sible for premiums, deducribles and self-ii�sured retenrions, if any�, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Supplier shall endea��or to pro��ide the Cin� tlurty� (30) calendar day�s' ��ritten notice of erosion of the aggregate limits belo�� occui7ence limits for all applicable co��erage's indicated ��itlun the Conhact. xi��. The insurance co��erage's specified in ��itlun the solicitation and requirements are required miiumums and are not intended to limit the respoi�sibilin� or liabilin� of the Supplier. B. Specific Co��erage Requirements: Specific ii�surance requirements are contained in the solicitarion ii�sti�ument. 33. CLAIMS: If any� claim, demand, suit or other action is asserted against the Supplier ��luch arises under or concerns the Conhact, or ��luch could ha��e a material ad��erse affect on the Supplier's abilin� to pei�orm thereunder, the Supplier shall give ��ritten norice thereof to the Cin� ��itlun ten (10) calendar day�s after receipt of notice by� the Supplier. Such norice to the Cin� shall state the date of notification of any� such claim demand, suit or other action; the names and addresses of the claimant(s): the basis thereof; and the name of each person against ��hom such claim is being asserted. Such norice shall be deli��ered personally� or by� mail and shall be sent to the Cin� and to the Denton Cin� Attoineti�. Personal deli��ei�� to the Cin� Attorneti� shall be to Cin� Hall, 215 East McKiimeti� Sheet, Denton, Texas 76201. 3�. NOTICES: Unless othei��ise specified, all norices, requests, or other commuiucations required or appropiiate to be gi��en under the Contract shall be in ��riting and shall be deemed deli��ered tluee (3) business day�s after postmarked if sent by� U.S. Postal Seiti�ice Certified or Registered Mail, Return Receipt Requested. Norices deli��ered by� other means shall be deemed deli��ered upon receipt by� the addressee. Rourine commuiucarions may� be made by� first class mail, telefax, or other commercially� accepted meai�s. Norices to the Supplier shall be sent to the address specified in the Supplier's Offer, or at such other address as a pai�� may� notif�� the other in ��riting. Notices to the Cin� shall be addressed to the Cin� at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. RFP 5023 Page 11 of 20 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All mateiial submitted by� the Supplier to the Cin� shall become propei�� of the City� upon receipt Any� portioi�s of such mateiial claimed by� the Supplier to be propiietai�� must be clearly� marked as such. Determination of the public nattue of the mateiial is subject to the Texas Public Infoimation Act, Chapter 552, and Texas Go��ei7nnent Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and ��ai7ants to the Cin� that: (i) the Supplier shall pro��ide the City� good and indefeasible ritle to the deli��erables and (ii) the deli��erables supplied by� the Supplier in accordance ��ith the specifications in the Conhact ��ill not infiinge, directly� or conriibutorily�, any� patent trademark, copy�iight, hade secret or any� other intellectual propei�� iight of an�� l�ind of any� tlurd pai��; that no claims ha��e been made b�� any� person or enrin� ��ith respect to the o��nerslup or operarion of the deli��erables and the Supplier does not kno�� of any� ��alid basis for any� such claims. The Supplier shall, at its sole eapense, defend, indemiufy�, and hold the Cin� harmless from and agaii�st all liabilin�, damages, and costs (including court costs and reasonable fees of attorney�s and other professionals) arising out of or resulring fiom: (i) any� claim that the Cin�'s exercise an��here in the ��orld of the rights associated ��ith the Cin�'s' o��nerslup, and if applicable, license iights, and its use of the deli��erables infiinges the intellectual propei�� iights of any� tlurd pai��; or (ii) the Supplier's breach of any� of Supplier's representatioi�s or ��ai7anties stated in tlus Conhact In the e��ent of any� such claim the Cin� shall ha��e the iight to moiutor such claim or at its oprion engage its o��n separate counsel to act as co-counsel on the Cin�'s behalf. Further, Supplier agrees that the Cin�'s specificarions regarding the deli��erables shall in no ��ay� dimiiush Supplier's ��ai7anties or obligarioi�s under tlus paragraph and the Cin� makes no ��ai7ann� that the production, de��elopment or deli��eiti� of such deli��erables ��ill not impact such ��ai7anties of Supplier. 37. CONFIDENTIALITY: In order to pro��ide the deli��erables to the Cin�, Supplier may� require access to certain of the Cin�'s and/or its licei�sors' conf'idenrial information (including in��enrions, employ�ee informarion, trade secrets, conf'idential kno��-ho��, confidential business infoi7natioiL and other ii�foimation ��luch the Cin� or its licensors consider confidential) (collecri��el��, ``Confidential Ii�formation"). Supplier ackno��ledges and agrees that the Conf'idential Information is the ��aluable propei�� of the Cin� and/or its licei�sors and an�� unauthorized use. disclosure, dissemination, or other release of the Coi�fidenrial Ii�formarion ��ill substanrially� injure the Cin� and/or its licensors. The Supplier (including its employ�ees, subcontractors, agents, or representari��es) agrees that it ��ill maintain the Conf'idenrial Informarion in sriict confidence and shall not disclose, disseminate, cop��, di��ulge, recreate, or othei��ise use the Conf'idenrial Information ��ithout the piior ��ritten coi�sent of the Cin� or in a maimer not eapressly� permitted under tlus Agreement, unless the Confidential Information is required to be disclosed by� la�� or an order of any� court or other go��ei7unental authorin� ��ith proper juiisdiction, pro��ided the Supplier promptly� notifies the Cin� before disclosing such informarion so as to permit the Cin� reasonable rime to seek an appropiiate protecti��e order. The Supplier agrees to use protecti��e measures no less stiingent than the Supplier uses ��itlun its o��n business to protect its o��n most ��aluable informarion. ��luch protecti��e measures shall under all circumstances be at least reasonable measures to ei�sure the continued coi�fidentialin� of the Conf'idential Informarion. 38. OWNERSHIP AND USE OF DELIVERABLES: The Cin� shall o��n all rights, titles, and interests tluoughout the ��orld in and to the deli��erables. A. Patents. As to any� patentable subject matter contained in the deli��erables, the Supplier agrees to disclose such patentable subject matter to the Cin�. Further, if requested by� the Cin�, the Supplier agrees to assign and, if necessaiy�, cause each of its employ�ees to assign the entire iight, ritle, and interest to specific in��enrions under such patentable subject matter to the Cin� and to execute, ackno��ledge, and deli��er and, if necessaiti�, cause each of its employ�ees to execute, ackno��ledge, and deli��er an assigmnent of letters patent in a form to be reasonably� appro��ed by� the Cin�, to the City� upon request by� the Cin�. B. Copy�rights. As to any� deli��erables contaiiung copy�rightable subject matter, the Supplier agrees that upon their crearion. such deli��erables shall be considered as ��ork made-for-lure by� the Supplier for the Cin� and the Cin� shall o��n all copy�rights in and to such deli��erables, pro��ided ho��e��er, that notlung in tlus Paragraph 38 shall negate the Cin�'s sole or joint o��nerslup of any� such deli��erables arising by� ��irhie of the Cin�'s sole or joint authorslup of such deli��erables. Should by� operation of la��, such deli��erables not be coi�sidered ��orks made-for-lure, the Supplier hereby� assigns to the City� (and agrees to cause each of its employ�ees pro��iding seiti�ices to the Cin� hereunder to execute, ackno��ledge, and deli��er an assigmnent to the City� ofl all ��orld��ide iight, title, and interest in and to such deli��erables. With respect to such ��ork made-for-lure, the Supplier agrees to execute, ackno��ledge, and deli��er and cause each of its employ�ees pro��iding seiti�ices to the Cin� hereunder to execute, ackno��ledge, and deli��er a��ork- made-for-lure agreement, in a form to be reasonabl�� appro��ed by� the Cin�, to the Cin� upon deli��eiti� of such deli��erables to the Cin� or at such other rime as the Cin� may� request. RFP 5023 Page 12 of 20 C. Addirional Assigmnents. The Supplier finther agrees to, and if applicable, cause each of its employ�ees to. execute, ackno��ledge, and deli��er all applications, specificarioi�s, oaths, assigmnents, and all other ii�sri�uments ��luch the Cin� might reasonably� deem necessaiti� in order to apply� for and obtain copy�iight protecrion. mask ��ork registratioiL trademark registration and/or protection, letters patent, or any� siinilar rights in any� and all countries and in order to assign and con��ey� to the Cin�, its successors, assigns and nominees, the sole and exclusi��e right, ritle, and interest in and to the deli��erables. The Supplier's obligatioi�s to execute, ackno��ledge, and deli��er (or cause to be executed, ackno��ledged, and deli��ered) ii�sti�uments or papers such as those described in tlus Paragraph 38 a., b.. and c. shall conrinue after the termination of tlus Contract ��ith respect to such deli��erables. In the e��ent the Cin� should not seek to obtain copy�iight protection, mask ��ork regisharion or patent protecrion for any� of the deli��erables, but should desire to keep the same secret the Supplier agrees to treat the same as Coi�fidenrial Ii�formarion under the terms of Paragraph 37 abo��e. 39. PUBLICATIONS: All published mateiial and ��ritten reports submitted under the Contract must be oiiginally� de��eloped mateiial unless othei��ise specifically� pro��ided in the Conhact When mateiial not oiiginally� de��eloped is included in a report in any� form, the source shall be idenrified. �0. ADVERTISING: The Supplier shall not ad��ertise or publish ��ithout the Cin�'s piior coi�sent, the fact that the Cin� has entered into the Contract except to the extent required by� la��. �1. NO CONTINGENT FEES: The Supplier ��ai7ants that no person or selling agency� has been employ�ed or retained to solicit or secure the Contract upon any� agreement or understanding for commission, percentage, brokerage, or conringent fee, excepring bona fide employ�ees of bona fide established commercial or selling agencies maintained by� the Supplier for the purpose of secuiing business. For breach or ��iolarion of tlus ��ai7ann�, the Cin� shall ha��e the iight, in addirion to any� other remedy� a��ailable, to cancel the Conhact ��ithout liabilin� and to deduct fiom any� amounts o��ed to the Supplier, or othei��ise reco��er, the full amount of such commission, percentage, brokerage or contingent fee. �2. GRATUITIES: The Cin� ma��, b�� ritten norice to the Supplier, cancel the Contract ��ithout liabilin� if it is determined by� the Cin� that gratuiries ��ere offered or gi��en b�� the Supplier or any� agent or representari��e of the Supplier to any� officer or employ�ee of the Cin� of Denton ��ith a ��ie�� to��ard secuiing the Contract or secuiing fa��orable treatment ��ith respect to the a��arding or amending or the mal�ing of any� determinations ��ith respect to the pei�orming of such contract In the e��ent the Contract is canceled by� the City� pursuant to tlus pro��ision, the Cin� shall be entitled, in addirion to any� other rights and remedies, to reco��er or ��ithhold the amount of the cost incui7ed by� the Supplier in pro��iding such gratuiries. �3. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employ�ee, independent coi�sultant, or elected official of the Cin� ��ho is in��ol��ed in the de��elopment e��aluarion. or decision-making process of the pei�ormance of any� solicitation shall ha��e a financial interest direct or indirect in the Contract resulring from that solicitarion. An�� illful ��iolation of tlus section shall constitute impropiien� in office, and any� officer or employ�ee guiln� thereof shall be subject to disciplinaiti� action up to and including dismissal. An�� iolation of tlus pro��ision, ��ith the kno��ledge, eapressed or implied, of the Supplier shall render the Contract ��oidable by� the Cin�. The Supplier shall complete and submit the Cin�'s Conflict of Interest Questioimaire (Attachment B). ��. INDEPENDENT SUPPLIER: The Conhact shall not be constiued as creating an employ�er/employ�ee relationslup, a partnerslup, or a joint ��enttue. The Supplier's seiti�ices shall be those of an independent supplier. The Supplier agrees and understands that the Conhact does not grant any� iights or pii��ileges established for employ�ees of the Cin� of Denton, Texas for the purposes of income taY, ��ithholding social securin� taxes. ��acarion or sick lea��e benefits, ��orker's compei�sarion. or any� other Cin� employ�ee benefit The Cin� shall not ha��e supeiti�ision and conhol of the Supplier or any� employ�ee of the Supplier, and it is eapressly� understood that Supplier shall pei%rm the seiti�ices hereunder according to the attached specificarioi�s at the general duecrion of the Cin� Manager of the Cin� of Denton, Texas, or lus designee under tlus agreement. �5. ASSIGNMENT-DELEGATION: The Conhact shall be binding upon and ensure to the benefit of the Cin� and the Supplier and their respecti��e successors and assigi�s, pro��ided ho��e��er, that no iight or interest in the Contract shall be assigned and no obligarion shall be delegated by� the Supplier ��ithout the piior ��ritten coi�sent of the Cin�. Any� attempted assigmnent or delegarion b�� the Supplier shall be ��oid unless made in coi�formin� ��ith tlus paragraph. The Conhact is not intended to coi�fer iights or benefits on any� person, firm or entin� not a pai�� hereto: it RFP 5023 Page 13 of 20 being the intention of the parties that there are no tlurd pai�� beneficiaiies to the Contract. �6. WAIVER: No claim or iight aiising out of a breach of the Contract can be discharged in ��hole or in part by� a ��ai��er or renunciation of the claim or iight ui�less the ��ai��er or renunciation is supported by� consideration and is in ��riring signed by� the aggiie��ed pai��. No ��ai��er by� either the Supplier or the Cin� of any� one or more e��ents of default by� the other pai�� shall operate as, or be coi�stiued to be, a peimanent ��ai��er of any� iights or obligations under the Conhact, or an eapress or implied acceptance of any� other existing or futtue default or defaults, ��hether of a similar or different character. �7. MODIP'ICATIONS: The Conhact can be modified or amended only� b�� a��riting signed b�� both parties. No pre-piinted or similar terms on any� the Supplier in��oice, order or other document shall ha��e any� force or effect to change the terms, co��enants, and condirioi�s of the Conhact. �8. INTERPRETATION: The Conhact is intended by� the parties as a final, complete and exclusi��e statement of the terms of their agreement. No course of piior dealing beri�een the parties or course of pei�ormance or usage of the hade shall be rele��ant to supplement or eaplain any� term used in the Contract Although the Contract ma�� ha��e been substantially� drafted by� one pai��, it is the intent of the parties that all pro��isioi�s be coi�stiued in a maimer to be fair to both parties, reading no pro��isions more strictly� against one pai�� or the other. Whene��er a term defined by� the Uniform Commercial Code, as enacted bti� the State of Texas, is used in the Contract, the UCC defiiurion shall control, unless othei��ise defined in the Conhact. �9. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Conhact, or the breach thereof, the parties agree to negotiate piior to prosecuting a siut for damages. Ho�� e��er, tlus section does not prolubit the filing of a la�� suit to toll the naiuung of a statute of limitarions or to seek injuncti��e relief. Either pai�� ma�� make a��ritten request for a meeting beri�een representari��es of each pai�� itlun fourteen (1�) calendar day�s after receipt of the request or such later peiiod as agreed by� the parties. Each pai�� shall include, at a miiumum, one (1) seiuor le��el indi��idual ��ith decision-mal�ing authorin� regarding the dispute. The purpose of tlus and any� subsequent meeting is to attempt in good faith to negoriate a resolurion of the dispute. If, ��itlun tlurty� (30) calendar day�s after such meering the parties ha��e not succeeded in negoriating a resolution of the dispute, the�� ill proceed directly� to mediarion as desciibed belo��. Negotiarion may� be ��ai��ed by� a��ritten agreement signed b�� both parties, in ��luch e��ent the parties may� proceed directlti� to mediarion as desciibed belo��. B. If the efforts to resol��e the dispute tluough negotiarion fail, or the parties ��ai��e the negotiation process, the parties may� select. ��itlun tlurty� (30) calendar day�s, a mediator hained in mediation sl�ills to assist ��ith resolution of the dispute. Should they� choose tlus oprion; the Cin� and the Supplier agree to act in good faith in the selection of the mediator and to gi��e consideration to qualified indi��iduals nominated to act as mediator. Notlung in the Contract pre��ents the parties fiom rely�ing on the sl�ills of a person ��ho is hained in the subject matter of the dispute or a contract interpretation eapeit If the parties fail to agree on a mediator ��itlun tlurty� (30) calendar day�s of iiutiarion of the mediation process, the mediator shall be selected by� the Denton Counn� Alternati��e Dispute Resolurion Program (DCAP). The parties agree to participate in mediarion in good faith for up to tlurty� (30) calendar day�s fiom the date of the first mediation session. The Cin� and the Supplier ��ill share the mediator's fees equally� and the parties ��ill bear their o��n costs of participarion such as fees for any� consultants or attorney�s they� may� urilize to represent them or othei��ise assist them in the mediarion. 50. JURISDICTION AND VENUE: The Conhact is made under and shall be go��erned by� the la��s of the State of Texas, including, ��hen applicable, the Uiuform Commercial Code as adopted in Texas. V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any� rule or principle that ��ould refer to and apply� the substanti��e la�� of another state or juiisdicrion. All issues arising from tlus Conhact shall be resol��ed in the courts of Denton Counn�, Texas and the parties agree to submit to the exclusi��e personal juiisdicrion of such courts. The foregoing, ho�� e��er, shall not be coi�stiued or interpreted to limit or restrict the right or abilin� of the Cin� to seek and secure injuncri��e relief fiom any� competent authorin� as contemplated herein. 5 L INVALIDITY: The in� alidin�, illegalin�, or unenforceabilin� of any� pro��ision of the Contract shall in no ��ay� affect the ��alidin� or enforceabilin� of any� other portion or pro��ision of the Contract Any� ��oid pro��ision shall be deemed se��ered fiom the Contract and the balance of the Contract shall be consriued and enforced as if the Conhact did not contain the particular portion or pro��ision held to be ��oid. The parties finther agree to reform the Conhact to replace any� stricken pro��ision ��ith a ��alid pro��ision that comes as close as possible to the intent of the sriicken RFP 5023 Page 14 of 20 pro��ision. The pro��isions of tlus section shall not pre��ent tlus entire Contract from being ��oid shoi�ld a pro��ision ��luch is the essence of the Contract be determined to be ��oid. 52. HOLIDAYS: The follo��ing holiday�s are obseiti�ed by� the Cin� Ne�� Year's Day� (obseiti�ed) MLK Da� Memoiial Dati� �th of Julti� Labor Da� Tl�aiilisgi` ing Da� Day� After Thai�l�sgi��ing Clnistmas E��e (obseiti�ed) Clnistmas Day� (obseiti�ed) Ne�� Year's Dati� (obseiti�ed) If a Legal Holiday� falls on Saturday, it ��ill be obseiti�ed on the preceding Fiida��. If a Legal Holiday� falls on Sunday�, it ��ill be obseiti�ed on the follo��ing Monday�. Noimal hours of operation shall be bet��een 8:00 am and �:00 pin, Monday� tluough Fiida��, excluding Cin� of Denton Holiday�s. Any� scheduled deli��eiies or ��ork pei�ormance not ��itlun the normal hours of operation must be approved by� the Cin� Manager of Denton, Texas or lus authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All pro��isions of the Contract that impose continuing obligatioi�s on the parties, including but not liinited to the ��ai7ann�, indemiun�, and confidentialin� obligatioi�s of the parties, shall suiti�i��e the expirarion or terminarion of the Conhact. ��. NON-SUSPENSION OR DEBARMENT CERTIFICATION: The Cin� of Denton is prolubited fiom contracring ��ith or mal�ing piime or sub-a��ards to parties that are suspended or debai7ed or ��hose piincipals are suspended or debai7ed fiom Federal, State, or Cin� of Denton Conhacts. By� accepting a Conhact ��ith the Cin�, the Vendor certifies that its firm and its piincipals are not cui7ently� suspended or debai7ed fiom doing business ��ith the Federal Go��ei7nnent, as indicated by� the General Seiti�ices Admiiusharion List of Parties Excluded fiom Federal Procurement and Non-Procurement Programs, the State of Texas, or the Cin� of Denton. ». EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any� disciiininatoiti� employ�ment pracrice. No person shall, on the grounds of race, sex, age, disability�, creed, color, generic tesring or narional origin, be refiased the benefits of, or be othei��ise subjected to discriminarion under any� acri��iries resulring fiom tlus RFQ. B. Americans �i�ith Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent shall engage in any� disciiminatoiti� employ�ment practice against indi��iduals ��ith disabiliries as defined in the ADA. 56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements) The follo��ing federally� fimded requirements are applicable, in addirion to the specific federally� funded requirements. A. Defiiutions. As used in tlus paragraph — i. "Component" means an article, mateiial, or supply� incorporated directly� into an end product. ii. "Cost of components" means - (1) For components purchased by� the Supplier, the acquisition cost, including hai�sportarion costs to the place of incoiporarion into the end product (��hether or not such costs are paid to a domestic firm), and any� applicable dun� (��hether or not a duty�-fiee enti�� certificate is issued): or (2) For components manufactured by� the Supplier, all costs associated ��ith the manufacture of the component, including hansportarion costs as desciibed in paragraph (1) of tlus defiiution, plus allocable o��erhead costs, but excluding profit Cost of components does not include any� costs associated ��ith the manufacture of the end product. iii. "Domestic end product" meai�s- (1) An uinnanufacttued end product mined or produced in the Uiuted States: or RFP 5023 Page 15 of 20 (2) An end product manufactured in the Uiuted States, if the cost of its components mined, produced, or manufactured in the Uiuted States exceeds 50 percent of the cost of all its components. Components of foreign oiigin of the same class or kind as those that the agency� determines are not mined, produced, or manufacttued in suff'icient and reasonably� a��ailable commercial quanriries of a satisfactoiy� qualin� are treated as domestic. Scrap generated, collected, and prepared for processing in the Uiuted States is considered domesric. i��. "End product" means those articles, mateiials, and supplies to be acquired under the contract for public use. ��. "Foreign end product" meai�s an end product other than a domesric end product. ��i. "Uiuted States" meai�s the 50 States, the District of Columbia, and outly�ing areas. B. The Buy� American Act (�1 U.S.C. l0a - lOd) pro��ides a preference for domestic end products for supplies acquired for use in the Uiuted States. C. The Cin� does not maintain a list of foreign articles that �� ill be heated as domesric for tlus Conhact: but ��ill consider for appro��al foreign articles as domestic for tlus product if the articles are on a list appro��ed by� another Go��ei7nnental Agenc��. The Offeror shall submit documentation ��ith their Offer demoi�sharing that the article is on an appro��ed Go��ei7nnental list. D. The Supplier shall deli��er only� domestic end products except to the extent that it specified deli��eiti� of foreign end products in the pro��ision of the Solicitation enritled "Buy� American Act Certificate". 57. RIGHT TO INFORMATION: The Cin� of Denton reseiti�es the iight to use any� and all informarion presented in any� response to tlus solicitatioil ��hether amended or not except as prolubited b�� la��. Selecrion of rejecrion of the submittal does not affect tlus iight. 58. LICENSE FEES OR TAXES: Pro��ided the solicitarion requires an a��arded supplier or supplier to be licei�sed by� the State of Texas, any� and all fees and taxes are the respoi�sibilin� of the supplier. 59. PREVAILING WAGE RATES: All suppliers ��ill be required to comply� ��ith Pro��ision 5159a of ``Vei7ioir's Aimotated Ci��il Statutes" of the State of Texas ��ith respect to the pay�ment of pre��ailing ��age rates and prolubiting discriminarion in the employ�ment pracrices. ��tt�://�ti��ti��ti�.�ccess.��acs.�c�� /c1�� sb�ccs��/iz.��ir�� 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall compl�� ith all State. Federal, and Local la��s and requirements. The Supplier must compl�� ith all applicable la��s at all rimes, including, ��ithout limitation, the follo��ing. (i) �36.02 of the Texas Penal Code, ��luch prolubits biibeiy�; (ii) �36.09 of the Texas Penal Code, ��luch prolubits the offeiing or confei7ing of benefits to public seiti�ants. The Supplier shall gi��e all notices and comply� ��ith all la��s and reg��latioi�s applicable to fiariuslung and pei%imance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonshate on-site compliance ��ith the Federal Tax Reform Act of 1986, Secrion 1706, amending Section 530 of the Re��enue Act of of 1978, dealing ��ith issuance of Form W-2's to common la�� employ�ees. Supplier is respoi�sible for both federal and State unemploy�ment ii�surance co��erage and standard Worker's Compensation ii�surance co��erage. Supplier shall ensure compliance ��ith all federal and State tax la��s and ��ithholding requirements. The Cin� of Denton shall not be liable to Supplier or its employ�ees for any� Unemploy�ment or Workers' Compensation co��erage, or federal or State ��ithholding requirements. Supplier shall indemi�� the Cin� of Denton and shall pay� all costs, penalries, or losses resulring fiom Supplier's omission or breach of tlus Section. 62. DRUG FREE WORKFLACE: The supplier shall comply� ��ith the applicable pro��isioi�s of the Diug-Free Work Place Act of 1988 (Public La�� 100-690, Title V. Subtitle D; �1 U.S.C. 701 ET SEQ.) and maintain a diug- fiee ��ork en��iromnent and the final rule, go��ei7nnent-��ide requirements for diug-fiee ��ork place (grants), issued by� the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the pro��isions of the Diug-Free Work Place Act of 1988 is incorporated by� reference and the supplier shall comply� �� ith the rele��ant pro��isions thereof, including an�� amendments to the final rule that may� hereafter be issued. 63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier sl�all be liable for all damages to go��ei7nnent-o��ned, leased, or occupied propei�� and equipment caused by� the Supplier and its employ�ees, agents, subconhactors, and suppliers, including an�� deli��eiti� or cartage company�, in coimection ��ith any� RFP 5023 Page 16 of 20 pei%imance pursuant to the Conhact The Supplier shall notify� the Cin� of Denton Procurement Manager in ��riting of any� such damage ��itlun one (1) calendar day�. 6�. FORCE MAJEURE: The Cin� of Denton, any� Customer, and the Supplier shall not be respoi�sible for pei%imance under the Contract should it be pre��ented from pei�ormance by� an act of ��ar, order of legal authorin�, act of God, or other una��oidable cause not atriibutable to the fault or negligence of the Cin� of Denton. In the e��ent of an occurrence under tlus Secrion, the Supplier ��ill be excused fiom an�� finther pei�ormance or obseiti�ance of the requirements so affected for as long as such circumstances pre��ail and the Supplier continues to use commercially� reasonable efforts to recommence pei�ormance or obseiti�ance ��hene��er and to ��hate��er extent possible ��ithout delay�. The Supplier shall immediately� norify� the Cin� of Denton Procurement Manager b�� telephone (to be conf'irmed in ��riting ��itlun fi��e (5) calendar day�s of the inception of such occui7ence) and describe at a reasonable le��el of detail the circumstances causing the non-pei%rmance or delay� in pei�ormance. 65. NON-WAIVER OF RIGHTS: Failure of a Pai�� to require pei�ormance by� another Pai�� under the Conhact ��ill not affect the iight of such Pai�� to require pei�oimance in the future. No delay�, failure, or ��ai��er of either Pai��'s exercise or partial exercise of an�� iight or remedy� under the Conhact shall operate to limit impair, preclude. cancel, ��ai��e or othei��ise affect such iight or remedy�. A��ai��er by� a Pai�� of any� breach of any� term of the Contract ��ill not be constiued as a��ai��er of any� continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly� agree that no pro��ision of the Conhact is in anti� ��ati� intended to constihrte a��ai��er bti� the Cin� of Denton of anti� iminuiuties from siut or from liabilin� that the Cin� of Denton may� ha��e by� operarion of la��. 67. RECORDS RETENTION: The Supplier shall retain all financial records, supporting documents, statistical records, and any� other records or books relaring to the pei�oimances called for in the Conhact The Supplier shall retain all such records for a peiiod of four (�) y�ears after the eapiration of the Contract or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resol��ed, ��luche��er peiiod is longer. The Supplier shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any� federal go��ei7nnental entin� that has authorin� to re��ie�� records due to federal fimds being spent under the Conhact. RFP 5023 Page 17 of 20 Exhibit C Supplier's Proposal RFP # 5023 - FINAL PRICING DATE: 10/2/12 Description: Electric Substation Class Porcelain Post Insulators No. Qty. UOM DESCRIPTION VENDOR Victor Insulators Principle Place of Business: New york Unit Cost Total Cost 1 18 EA Starion Class Insulator, TR 227, ANSI 70, Grey� $ 83.00 $ 1,494.00 2 9 EA Starion Class Insulator, TR 278, ANSI 70, Grey� $255.00 $ 2,295.00 3 120 EA Starion Class Insulator, TR 289, ANSI 70, Grey� $384.00 $ 46,080.00 Estimated Annual Contract Value $ 49,869.00 Estimated 5 Year Contract Value $ 249,345.00 Estimated Delivery ARO (weeks) 9 �1SCOLlllt 1°�o paid 10 davs RFP 5023 Page 18 of 20 Exhibit C CITY OF �ENTON R�P FOR SUPPLY OF PORCELAIN STAT�4N POST INSULATORS .�.��.�� BUSINESS OVERVIEW QUESTIONNA�RE AND FORMS 1. Contractor Name: Victor Insulatoz•s, Inc. 2. Address (Principal Place of Business); 280 Maple Ave., Vicior, NY 145b� 3. Does your company have an establish�d physical presence in the State of Texas, or the Ci#y of Denton? NO �. Tax Payer ID#: 16�214062 5. Email Add�ess of Prirnaay contact: nmckee@victo�•insulata�•s.com 6. Website Addi°ess: www.victorinsulators.com 7. Telep�one:58S-924�2127 8. Fax:585-924�790b 9. Other Lacations: None 10. Organ�zation Class: Partnership Inc�ividual Co�•poration --- Small Business Association 11. Date Establish.ed: 1984 12. Fo��ner Business Name: 13. Date of Dissolution: 14. Subsidiary of: 15. Histo��ically Undertttilized Business: No 16. Principals and Officez�s: Ira Knickerbacker — O�wner CEO Ron Graczy� — Owne�• — retired. Andy Schwalm - P�•esident 17. Key Persannel: Nelson McKee -- Saies Manager. Nancy Chudyk � Cont�•ollea• RFP 5023 PAGE 42 OF RFP #5023 Page 19 of 20 Exhibit C C1TY OF DEfVTON RF'P F'OR SUPPLY OF PORCELAIN STAT�ON POST �NSULATORS 18. Numbet o�Personnel by Discipline: Tatal af 96 of which 21 are staff. I9. Has your company fil�d or b��n named in any litigation involving your company and the �vv�ex• orn a contzact within the last five years under your current cornpany name or any other co�npany name? If so provide details of the issues and :resolution i� available. Include lawsuits where Owner was involved. NO 20. Please p�•ovide at least (3} three xeferences (�ireferably raxur�icrpnlities) and co�tract amounts. Inciude project description, contact names, position, and ozganization name and telephone number for each reference Iisted, See attach�nent F. 21, Have you ever defaulted on or failed ta complete a contract under your current cQmpany name or any other ca�npany name? If so, where and why? Giv� name and telepl�one number of Ownez•. N� 22. Have you ever had a coniract terminated by tl�e Owne�? I� so, whe�e anc�. why? Give name and telephone nurnber (s} of Owner {s). NO 23. Has your company implemented an Employee Health and Safety Prograrn eomplian� with 29 CFR 1910 "Gene�•al Industry Standards" and/or 29 CFR 1926 "General Construction Standa�•ds" as ihe� appl� ta �our Company's customary activities? httn:l/www.osha.gov/pls/oshawebfowas��cl�.sea�•ckt_�ox�m?� cioc_tvpe=STANDARDS&� toc Ieve1=1 & k� �alL�e=1926 RFP 5023 PAG� �43 OF' R�F' #5d23 Page 20 of 20 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF PORCELAIN STATION POST INSULATORS FOR DENTON M[_JNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FLJNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5023-SUPPLY OF PORCELAIN STATION POST INSULATORS AWARDED TO VICTOR INSULATORS, INC. IN TI� NOT TO EXCEED AMOLJNT OF $280,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of porcelain station post insulators for Denton Municipal Electric in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP N [_JIVIBER CONTRACTOR AMOUNT 5023 Victor Insulators, Inc. $280,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under the RFP 5023 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNg'ER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ____ ��'"��---.� --�� BY: �-ORD-RFP �023 tl tl11111,"�tl;"IIIIu �'"h�j',tl"II"'lltl�':q �l AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Phil Williams at 349-8487 ACM: Bryan Langley �� SUBJECT Consider adoption of an Ordinance accepting competitive proposals and awarding contracts for the purchase of electric utility 691cV and 138 1cV instniment transformers for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5064-Supply of Electric Utility 691cV and 1381cV Instniment Transformers awarded to ABB HVIT in the not to exceed amount of $2,290,000, Alstom Grid, Inc. in the not to exceed amount of $200,000, and Trench Limited in the not to exceed amount of $50,000 for a total award amount not to exceed $2,540,000). The Public Utilities Board recommends approval (6-0). RFP INFORMATION Denton Municipal Electric (DME) has substation projects approved in its Five-year Capital Improvement Plan that will require the installation of transmission voltage instniment transformers. Instniment transformers are used to transform currents and voltages from 1381cV and 69kV down to levels that can be used in control, protective relay, and metering devices. DME uses three types of instnlment transformers on 691cV and 1381cV transmission systems: potential transformers (PTs), current transformers (CTs) and coupling capacitor voltage transformers (CCVTs). PTs and CCVTs provide voltage transformations. CTs are used to transform currents. CTs must be rated for the voltage at which they are applied. All instniment transformers have a high voltage rating and a low voltage rating. Current transformers have current ratios such as 150 amps to 5 amps (usually stated as 150:5). Potential, or voltage, transformers must have a high voltage rating to match the voltage of the system where they are installed. Their low voltage ratings are a standard value for metering and protective relay systems such as 115 volts. Examples of PT and CCVT ratios are 700:1, 1200:1. Request for proposals were sent to 199 prospective suppliers, including two Denton firms. In addition, specifications were placed on the Purchasing website for prospective suppliers to download. Four proposals were received. Confidential negotiations were completed and a Best and Final Offer (BAFO) was requested from the respondents. The BAFO resulted in approximately $43,000 in annual savings. Proposals were evaluated based upon published criteria, including price, delivery and probable performance by the supplier. ABB HVIT, Alstom Grid, and Trench Unlimited provided the best value for the City by line item. Staff is in the process of finalizing the contracts with the three recommended vendors. We anticipate contract completion after Council approval. Agenda Information Sheet December 4, 2012 Page 2 PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 12, 2012, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve a contract with ABB HVIT for the purchase of 691cV potential transformers (PTs), 691cV 150/300:5 current transformers (CTs), 1381cV coupling capacitor voltage transformers (CCVTs), and 1381cV PTs in amount not to exceed $2,290,000. Approve a contract with Alstom Grid, Inc. for the purchase of 691cV CCVTs and 1381cV 150/300:5 CTs in an amount not to exceed $200,000. Approve a contract with Trench Limited for the purchase of 1381cV 1000:CTs in an amount not to exceed $50,000 for a for a total award amount to all three vendors not to exceed $2,540,000. These will all be one year contracts with the option to renew for four (4) additional one year periods. PRINCIPAL PLACE OF BUSINESS ABB HVIT Alstom Grid, Inc. Trench Limited Crystal Springs, MS Waynesborq GA Scarborough ON, Canada ESTIMATED SCHEDULE OF PROJECT The initial term of these contracts are for one year ending December 4, 2013. The City and the awarded vendors shall have the option to renew the contracts for four (4) additional one year periods. Orders will be placed based on project schedules. It is anticipated that an initial purchase of 18 - 138kV Potential Transformers (PTs) will be placed upon approval by the City Council. FISCAL INFORMATION The costs for material purchased under the proposed agreement will be funded from project accounts on an as needed basis. The worlc proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission Transmission Cost of Service Program (TCOS). EXHIBITS Exhibit 1: Evaluation/Ranlcing sheet Exhibit 2: Draft Public Utilities Board Minutes Agenda Information Sheet December 4, 2012 Page 3 Respectfully submitted: � �� Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1 =AIS-File 5064 Ez�hibit 1 RFP #5064 Evaluation 69kV & 138kV Instrument Transformers November 12, 2012 Supplier Trench Limited ABB HVIT ALSTOM Grid Inc. Keasler Sales LLC 1 Manufacturer Proposed: TRENCH LIMITED ABB HVIT and Arteche, MX ALSTOM Grid Ina Trench Limited 2 Location of Manufacturing Facilit}f? Scarborough, ON, Canada Crystal Springs, MS & Tepeji Del Riq MX Waynesborq GA Scarborough, ON, Canada Number of Yeazs of High Voltage Instrument 3 Transformer Supply and Fabrication Experience? 50 years >20 21 50 yeazs Can an initial order be delivered in March 2013 if a 4 Purchase Order is issued in December 2012? No No No No B�d Est Est Del Est Del Est Del Est Del Item Annual Product Description Unit Price EaTended Price ARO Unit Price EaTended Price ARO Unit Price EaTended Price ARO Unit Price EaTended Price ARO wks wks wks wks 5 2 69kV CCVT $ 6,010.00 $ 12,020.00 32 $ 6,270.00 $ 12,540.00 25 $ 4,925.00 $ 9,850.00 17.1 $ 6,431.00 $ 12,862.00 32 6 15 69kV PT Oil Filled $ 6,335.00 $ 95,025.00 32 $ 5,276.00 $ 79,140.00 28 $ 7,400.00 $ 111,000.00 293 $ 6,778.00 $ 101,670.00 32 8 3 69kV CT 150/300:5 $ 8,464.00 $ 25,392.00 40 $ 6,090.00 $ 18,270.00 28 $ 7,905.00 $ 23,715.00 293 $ 9,056.00 $ 27,168.00 40 9 2 138kV CCVT $ 6,833.00 $ 13,666.00 32 $ 5,590.00 $ 11,180.00 15 $ 5,680.00 $ 11,360.00 17.1 $ 7,311.00 $ 14,622.00 32 10 39 138kV PT $ 9,645.00 $ 376,155.00 32 $ 8,236.00 $ 321,204.00 15 $ 1Q515.00 $ 41Q085.00 293 $ 1Q320.00 $ 402,480.00 32 11 3 138kV CT 150/300:5 $ 9,190.00 $ 27,570.00 40 $ 9,990.00 $ 29,970.00 28 $ 8,805.00 $ 26,415.00 293 $ 9,833.00 $ 29,499.00 40 12 1 138kV CT 1000:5 $ 8,555.00 $ 8,555.00 40 $ 1Q166.00 $ 1Q166.00 28 $ 9,505.00 $ 9,505.00 293 $ 9,154.00 $ 9,154.00 40 Estimated Total Annual Cost (Selected Items) $ 8,555 $ 429,794 � 36,265.00 $ - Estimated Total 5-Year Cost (assuming 3% inflation per year) $ 45,419.66 $ 2,281,834.72 � 192,535.51 $ - Warranty 18 months after delivery, or 12 months from 18 months after delivery, or 12 months from 18 months after delivery, or 12 months 18 months after delivery, or 12 months install, whichever first mstall, whichever first from mstall, whichever first from install, whichever first Exceptions Not registered in the State of Texas 5% cap on liquidated damages Allow ship by enclosed truck None Terms and Conditions Allow ship by enclosed truck EVALUATION Item 5 Indicator of Probable Performance (10 points) 9 10 10 10 Delivery (10 points) 536 6.86 10 536 Warranty (10 points) 10 10 10 10 Total Cost of Ownership (70 points) 5736 54.98 70 53.61 TOTAL EVALUATED SCORE 81.72 81.84 100.00 78.96 EVALUATION Item 6 Indicator of Probable Performance (10 points) 9 10 10 10 Delivery (10 points) 8.75 10.00 9.56 8.75 Warranty (10 points) 10 10 10 10 Total Cost of Ownership (70 points) 5830 70.00 49.91 54.49 TOTAL EVALUATED SCORE 86.05 100.00 79.47 83.24 Ez�hibit 1 RFP #5064 Evaluation 69kV & 138kV Instrument Transformers November 12, 2012 Supplier Trench Limited ABB HVIT ALSTOM Grid Inc. Keasler Sales LLC EVALUATION Item 8 Indicator of Probable Performance (10 points) 9 10 10 10 Delivery (10 points) 7.00 10.00 9.56 7.00 Warranty (10 points) 10 10 10 10 Total Cost of Ownership (70 points) 5037 70.00 53.93 47.07 TOTAL EVALUATED SCORE 76.37 100.00 83.49 74.07 EVALUATION Item 9 Indicator of Probable Performance (10 points) 9 10 10 10 Delivery (10 points) 4.69 10.00 8.75 4.69 Warranty (10 points) 10 10 10 10 Total Cost of Ownership (70 points) 5727 70.00 68.89 53.52 TOTAL EVALUATED SCORE 80.95 100.00 97.64 78.21 EVALUATION Item 10 Indicator of Probable Performance (10 points) 9 10 10 10 Delivery (10 points) 4.69 10.00 5.12 4.69 Warranty (10 points) 10 10 10 10 Total Cost of Ownership (70 points) 59.77 70.00 54.83 55.86 TOTAL EVALUATED SCORE 83.46 100.00 79.95 80.55 EVALUATION Item 11 Indicator of Probable Performance (10 points) 9 10 10 10 Delivery (10 points) 7.00 10.00 9.56 7.00 Warranty (10 points) 10 10 10 10 Total Cost of Ownership (70 points) 67.07 61.70 70.00 62.68 TOTAL EVALUATED SCORE 93.07 91.70 99.56 89.68 EVALUATION Item 12 Indicator of Probable Performance (10 points) 9 10 10 10 Delivery (10 points) 7.00 10.00 9.56 7.00 Warranty (10 points) 10 10 10 10 Total Cost of Ownership (70 points) 70.00 58.91 63.00 65.42 TOTAL EVALUATED SCORE 96.00 8891 92.56 92.42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Exhibit 2 DRAFT MINUTES PUBLIC UTILITIES BOARD November 12, 2012 After deternuning that a quonim of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, November 12, 2012 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Absent: Chairman Dicic Smith, Vice Chair Billy Cheelc, Randy Robinson, Barbara Russell, Leonard Herring and Li1ia Bynum Phi1 Gallivan Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: CONSENT AGENDA: 2. Consider recommending approval of a contract with ABB HVIT for the purchase of 691cV potential transformers (PT's), 69kV 150/300:5 current transformers (CT's), 138kV coupling capacitor voltage transformers (CCVT's), and 138kV PT's (RFP #5064 - awarded to ABB HVIT in amount not to exceed $2,290,000. Consider recommending approval of a contract with Alstom Grid, Inc. for the purchase of 69kV CCVT's and 138kV 150/300:5 CT's (RFP #5064 - awarded to Alstom Grid, Inc., in an amount not to exceed $200,000. Consider recommending approval of a contract with Trench Limited for the purchase of 138kV 1000:5 CT's (RFP #5064 - awarded to Trench Limited in an amount not to exceed $50,000). A motion to approve item 2 was made by Board Member Cheek with a second by Board Member Herring. The vote was 6-0. Adj ournment 9: 53 am ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING CONTRACTS FOR THE PURCHASE OF ELECTRIC UTILITY 69KV AND 138 KV INSTRLJMENT TRANSFORMERS FOR DENTON M[_JNICIPAL ELECTRIC; PROVIDINGFOR THE EXPENDITLJRE OF FLJNDS TI�REFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5064-SUPPLY OF ELECTRIC UTILITY 69KV AND 138KV INSTRLJMENT TRANSFORMERS AWARDED TO ABB HVIT IN THE NOT TO EXCEED AMOUNT OF $2,290,000, ALSTOM GRID, INC. IN THE NOT TO EXCEED AMOUNT OF $200,000, AND TRENCH LIMITED IN THE NOT TO EXCEED AMOUNT OF $50,000 FOR A TOTAL AWARD AMOUNT NOT TO EXCEED $2,540,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of 69Kv and 13 81cV instniment transformers for Denton Municipal Electric in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. . . I: ' 5064 5064 5064 CONTRACTOR ABB HVIT Alstom Grid, Inc. Trench Limited AMOUNT $2,290,000 $ 200,000 $ 50,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or pernutted to be performed by the City of Denton under the RFP 5064 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNg'ER WALTERS, CITY SECRETARY I� APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY �� ___ �' �,,�� BY: �-ORD-RFP �064 tl, tl11111,"�tl*II""'IIu �'"h�j!�tl*II""'Iltl;�:q II�„',. AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Phil Williams at 349-8487 ACM: Bryan Langley ��r� SUBJECT Consider adoption of an Ordinance accepting competitive proposals and awarding a contract for the purchase of Phase Over Phase 1381cV Pole Mounted Gang Operated Air Brealc (GOAB) Switches for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5065-Supply of Phase Over Phase 1381cV Pole Mounted Gang Operated Air Brealc (GOAB) Switches awarded to Stuart C. Irby Company in the not to exceed amount of $470,000). The Public Utilities Board recommends approval (6-0). RFP INFORMATION Denton Municipal Electric (DME) has substation projects approved in its Five-year Capital Improvement Plan that will require the installation of 1381cV pole mounted switches that will allow the line to bypass the station and remain in service in the event that the station has to be taken out of service for repairs or testing. The switches if installed prior to station constniction on existing lines, will help expedite the final testing and tie-in of the stations. Pole mounted switches serve the same purpose as switches inside a substation except they are mounted on transmission poles near substations. Currently defined projects will require the purchase of ten pole mounted switches. Orders will be placed based upon project needs. Request for proposals were sent to 254 prospective suppliers, including two Denton firms. In addition, specifications were placed on the Purchasing website for prospective suppliers to download. Two proposals were received. Proposals were evaluated based upon published criteria, including price, delivery and probable performance by the supplier. The Stuart C. Irby Company proposal provided the highest evaluated score and also the lowest cost, resulting in the best value for the City. Staff is in the process of finalizing the contract with Stuart C. Irby Company. We anticipate contract completion after Council approval. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 12, 2012, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. Agenda Information Sheet December 4, 2012 Page 2 RECOMMENDATION Approve a one year contract, with four renewals, with Stuart C. Irby Company in the not to exceed amount $470,000 over the potential contract term. PRINCIPAL PLACE OF BUSINESS Stuart C. Irby Company Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT The initial term of this contract is for one year ending December 4, 2013. The City and Stuart C. Irby Company shall have the option to renew this contract for four (4) additional one year periods. FISCAL INFORMATION The costs for material purchased under the proposed agreement will be funded from project accounts on an as needed basis. The worlc proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission Transmission Cost of Service Program (TCOS). EXHIBITS Exhibit 1: Evaluation/Ranlcing sheet Exhibit 2: Draft Public Utilities Board Minutes Respectfully submitted: � �� Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1-.�IS-File �06� Exhibit 1 Pricing and Evaluation for RFP 5065 138kV POLE Mounted Switches November 12, 2012 Description WESCO IRBY Proposed Part Number, Unit Price and Delivery (FOB Destination) ProposedPartNumber SEECO1G13830-N-ST SEECO1G13830-N-ST Phase-Over-Phase GOAB Switch, One-Way, Delta, 138kV, with $46,057.94 $43,581.00 Interrupters, Motor Operator, Field Service, and 5 Year Warranty Estirnated Delivery ARO (weeks) 19-23 weeks 19-23 weeks Extended Price EST. ANNUAL UoM Description WESCO IRBY QTY 2 EA Estirnated Annual Conract Amont $92,115.88 $87,162.00 Estirnated Total Contract Amount (5 YR, no escalation) $460,579.40 $435,810.00 Estimated Total Contract Amount (5 YR, with 3% escalation in �489,055.72 �462,754.90 years 2 through 4) Evaluation 10 Probable Performance 10.00 9.00 10 Delivery 10.00 10.00 80 Cost 75.70 80.00 TOTAL EVALUATED SCORE 95.70 99.00 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 2 DRAFT MINUTES PUBLIC UTILITIES BOARD November 12, 2012 After deternuning that a quonim of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, November 12, 2012 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Absent: Chairman Dicic Smith, Vice Chair Billy Cheelc, Randy Robinson, Barbara Russell, Leonard Herring and Li1ia Bynum Phi1 Gallivan Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: CONSENT AGENDA: 5. Consider recommending approval of a contract with Stuart C. Irby Company for the purchase of 1381cV pole mounted switches (RFP #5065 - awarded to Stuart C. Irby Company in an amount not to exceed $470,000). A motion to approve item 5 was made by Board Member Cheek with a second by Board Member Herring. The vote was 6-0. Adj ournment 9: 53 am ORDINANCE NO. 2012- AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF PHASE OVER PHASE 138KV POLE MOUNTED GANG OPERATED AIR BREAK (GOAB) SWITCHES FOR DENTONM[_JNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FLJNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5065-SUPPLY OF PHASE OVER PHASE 138KV POLE MOUNTED GANG OPERATED AIR BREAK (GOAB) SWITCHES AWARDED TO STUART C. IRBY COMPANY IN THE NOT TO EXCEED AMOUNT OF $470,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of 13 81cV pole mounted gang operated air brealc switches for Denton Municipal Electric in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP N [_JIVIBER CONTRACTOR AMOUNT 5065 Stuart C. Irby Company $470,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in substantial accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, Response and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is substantially in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to talce any actions that may be required or pernutted to be performed by the City of Denton under the RFP 5065 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNg'ER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ____ ��'"��---.� --�� BY: 4-ORD-RFP �06� tl�tl11111,"�tl;"IIIIu �'"h�,j',tl"II'lltl�;q II.., AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Phil Williams at 349-8487 ACM: Bryan Langley �� SUBJECT Consider adoption of an Ordinance accepting competitive proposals and awarding a contract for the purchase of electric utility transmission conductor (Cumberland and Lupine) for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5066-Supply of Electric Utility Transnussion Conductor (Cumberland and Lupine) awarded to Stuart C. Irby Company in the not to exceed amount of $1,410,000). The Public Utilities Board recommends approval (6-0). RFP INFORMATION Denton Municipal Electric (DME) has transmission line projects approved in its Five-year Capital Improvement Plan (CIl') for the constniction of approximately 15 nules of transmission line that will require the purchase of 1926.9 thousand circular mils (lccmil), Aluminum Conduction Steel Supported/Trapezoidal Wire High Strength Cumberland conductor. The CIl' also includes twelve substation projects that will require purchase of 2500 lccmil, all aluminum, Lupine conductor for interconnection of equipment and bus. Request for proposals were sent to 273 prospective suppliers, including two Denton firms. In addition, specifications were placed on the Purchasing website for prospective suppliers to download. Two proposals were received. The Stuart C. Irby Company proposal provided the highest evaluated score and also the lowest cost, resulting in the best value for the City. Staff is in the process of finalizing the contract with Stuart C. Irby Company. We anticipate contract completion after Council approval. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 12, 2012, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve a one year contract, with four renewals, with Stuart C. Irby Company in the not to exceed amount $1,410,000 over the potential contract term. Agenda Information Sheet December 4, 2012 Page 2 PRINCIPAL PLACE OF BUSINESS Stuart C. Irby Company Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT The initial term of this contract is for one year ending December 4, 2013. The City and Stuart C. Irby Company shall have the option to renew this contract for four (4) additional one year periods. FISCAL INFORMATION The costs for material purchased under the proposed agreement will be funded from project accounts on an as needed basis. The worlc proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission Transmission Cost of Service Program (TCOS). EXHIBITS Exhibit 1: Evaluation/Ranlcing sheet Exhibit 2: Draft Public Utilities Board Minutes Respectfully submitted: � �� Antonio Puente, Jr., 349-7283 Assistant Director of Finance 1 =AIS-File 5066 E�ibit 1 RFP #5066 Pricing and Evaluation Transmission Conductor: 2500 AAC Lupine & 1926.9 ACSS/TW Cumberland November 12, 2012 Fstimated Average Average # of Estimated Standard Reel Minimum Order Refundable Reel Total Annual Reel Conductor Fstimated Item # Annual UOM Description Reel Type Reels Required Delivery (Weeks Requirement Length (Feet) �u�ly (Feet) Deposit (Each) Deposit Unit Price Annual Cost ARO) WESCO Distribution 1 48,000 Ft 19269 kcmil ACSS/TW HS Cumberland Wood 4900 10 24,500 $0 $0 $5.04616 $242,216 18-20 2 48,000 Ft 19269 kcmil ACSS/TW HS Cumberland Steel 8800 6 24,000 $2,975 $17,850 $4.98381 $239,223 18-20 3 6,000 Ft 2500 kcmil AAC Lupine Wood 3000 2 3,000 $0 $0 $5.45109 $32,707 14-16 4 6,000 Ft 2500 kcmil AAC Lupine Steel 3000 2 3,000 $2,425 $4,850 $5.15586 $3Q935 14-16 Stuart C. Irbv Companv 1 48,000 Ft 19269 kcmil ACSS/TW HS Cumberland Wood 4900 10 17,600 $0 $0 $4.63000 $222,240 16-18 2 48,000 Ft 19269 kcmil ACSS/TW HS Cumberland Steel 8800 6 19,600 $2,950 $17,700 $4.54000 $217,920 16-18 3 6,000 Ft 2500 kcmil AAC Lupine Wood 3000 2 3,000 $0 $0 $4.97000 $29,820 14-16 4 6,000 Ft 2500 kcmil AAC Lupine Steel 3000 2 3,000 $2,400 $4,800 $4.70000 $28,200 14-16 Fstimated Average Annual Cost (including reel deposits): $265,440 Fstimated 5 Year Total Cost (includes 3% inflation in $1,409,257 years 2 through 5) Roundup to $1,41Q000 Evaluation Indicatois of Probable Perfoimance Delivery Price ic�m# �eg�Prion xeei�e �ioi� �ioi� (soi) 'rorals WESCO Irby WESCO Irby WESCO Irby WESCO Irby 1 19269 kcmil HS ACSS/TW Cumberland Wood 10.00 9.00 9.00 10.00 73.40 80.00 92.40 99.00 2 19269 kcmil HS ACSS/TW Cumberland Steel 10.00 9.00 9.00 10.00 72.88 80.00 91.88 99.00 3 2500 kcmil AAC Lupine Wood 10.00 10.00 10.00 10.00 72.94 80.00 92.94 100.00 4 2500 kcmil AAC Lupine Steel 10.00 10.00 10.00 10.00 72.93 80.00 92.93 100.00 Average 92.54 99.50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Exhibit 2 DRAFT MINUTES PUBLIC UTILITIES BOARD November 12, 2012 After deternuning that a quonim of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, November 12, 2012 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Absent: Chairman Dicic Smith, Vice Chair Billy Cheelc, Randy Robinson, Barbara Russell, Leonard Herring and Li1ia Bynum Phi1 Gallivan Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: CONSENT AGENDA: 7. Consider recommending approval of a unit price purchase agreement with Stuart C. Irby Company for the purchase of 1926.91ccmil, ACSS/TW HS Cumberland and 25001ccnul, AAC Lupine transmission line and substation conductors (RFP #5066 - awarded to Stuart C. Irby Company in an amount not to exceed $1,410.000). A motion to approve item 7 was made by Board Member Cheek with a second by Board Member Herring. The vote was 6-0. 8. Adj ournment 9: 53 am ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF ELECTRIC UTILITY TRANSMISSION CONDUCTOR (CUMBERLAND AND LUPINE) FOR DENTON MCTl�]ICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITLJRE OF FLJNDS TI�REFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5066-SUPPLY OF ELECTRIC UTILITY TRANSMISSION CONDUCTOR (CLJIVIBERLAND AND LUPINE) AWARDED TO STUART C. IRBY COMPANY IN THE NOT TO EXCEED AMOLTNT OF $1,410,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of electric utility transmission conductor (Cumberland and Lupine) for Denton Municipal Electric in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP N [_JIVIBER CONTRACTOR AMOUNT 5066 Stuart C. Irby Company $1,410,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in substantial accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, Response and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in substantial accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or pernutted to be performed by the City of Denton under the RFP 5066 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNg'ER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ____ ��'"��---.� --�� BY: 4-ORD-RFP �066 tl µ1IIII,"�tl*II""IIu �'"h�j!�tl*II""'lltl�':q Il�+iii�h AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 DEPARTMENT: Finance ��. ACM: Bryan Langley SUBJECT Consider adoption of an Ordinance granting to Oncor Electric Delivery Company LLC a non- exclusive franchise for the purpose of constnicting, maintaining, and using an electric delivery utility system in the City of Denton; regtilating the constniction worlc done by the grantee in the City; requiring j oint use of poles, trenches, and conduits in certain instances; prescribing the relationship and relative rights between grantee and others with respect to constniction in the City and location of facilities; prescribing the duties, responsibilities, and nile malcing authority of the City Manager and the City with respect to administration of this franchise; requiring certain records and reports and providing for inspections and location of principal offices; reserving to the governing body of the City the right to set charges and rates of grantee; providing the rights and responsibilities of the governing body in setting the rates; providing for enforcement of the franchise; prescribing the compensation to the City from the grantee for the franchise privilege; providing for assignment of the franchise; providing indemnity of the City and its employees; providing for good faith effort; providing for insurance; setting forth the term of the franchise and its renewal; repealing Ordinance No. 2001-405 as amended; providing for acceptance of the franchise by grantee; finding that the meeting at which this Ordinance is passed is open to the public; providing for severability; and providing an effective date. (Second Reading) FILE INFORMATION The City of Denton's previous franchise agreement with Oncor expired on November 15, 2011. While considerable time has passed since the expiration of the previous franchise agreement, Oncor has continued to pay its franchise fees to the City and abide by all applicable ordinances. To date, no disputes have arisen between the City and Oncor which would have been covered under a franchise agreement. Over the last year, staff and Oncor representatives have been actively negotiating a number of provisions that would be acceptable to both parties. Staff is glad to inform the City Council that all issues surrounding the franchise agreement have been resolved and both the company and staff are jointly recommending approval of the franchise agreement. Furthermore, the City retained external legal counsel, Herrera & Boyle PLLC, to assist with the negotiation of this franchise agreement and they also recommend approval. Agenda Information Sheet December 4, 2012 Page 2 Unlilce other franchise agreements, investor-owned electric utilities (excludes municipally- owned and cooperatives) are required to pay franchise fees to municipalities on a lcilowatt factor basis. The change from a gross revenue based franchise fee to a lcilowatt factor franchise fee became effective on January 1, 2002, and was intended to be revenue neutral to cities. At that time, the factor for the City was calculated to be .002859 and was equal to 4% of gross revenues. However, the amount was based on gross revenues collected and lcilowatts sold in 1998. State law does not provide for any growth or inflationary adjustments nor does it provide for any tnie- ups to the lcilowatt factor. Consequently and over time, the revenue produced by the lcilowatt factor may produce less revenue to the City than a gross-revenue based franchise fee. In a settlement approved by the Council in June of 2006, Oncor and a coalition of cities entered into an agreement to increase the lcilowatt factor for a total of 5% by January 1, 2009. Unfortunately, the Public Utility Commission of Texas ("PUC") disagreed with the settlement between the two parties and a final niling is pending. The current lcilowatt factor for the City increased to .003002 per the settlement agreement. The proposed franchise agreement maintains the .003002 lcilowatt factor but stipulates that Oncor may revert to the originallcilowatt factor of .002859, if it is not allowed to recover those fees through its rates. This action would only impact future payments. In addition to the lcilowatt based franchise fees paid to the City, Oncor also pays an annual franchise fee of 4% on miscellaneous charges (known as "Discretionary Service Charges") that arose from the TXU litigation settled in 2001. The miscellaneous charges include: holiday move-in charges, out-of-cycle meter reading charges, priority move-in charges, meter investigation charges, and others. As part of the negotiation process and an attempt to streamline the percentage to other franchise agreements, staff proposed to increase the percentage to 5% but Oncor did not agree. Therefore, the proposed franchise agreement maintains the percentage at 4% as contained in the previous franchise agreement. Lastly, minor changes have been made to the proposed franchise agreement which consolidates at least two settlement agreements made since the original passage of the previous franchise agreement. Other changes include: clarification of the non-exclusive nature of the agreement, eliminates duplicative language already contained in the City's Charter, incorporates langtiage from the City's Code of Ordinances; and provides Oncor the option to be self-insured in covering any obligations contained in the franchise agreement. The City of Denton Charter requires the franchise agreement to be approved three (3) times before it becomes effective. The City Council approved the proposed ordinance and franchise agreement in a first reading on November 6, 2012. Staff anticipates that the franchise agreement will be presented again to the City Council for a third and final reading on December 18. If approved on all three readings, the new franchise agreement will be effective after 30 days of final passage, pending publication in the local newspaper, and acceptance by Oncor. Agenda Information Sheet December 4, 2012 Page 3 RECOMMENDATION Staff recommends adoption of this ordinance. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 6, 2012, the City Council considered and approved the proposed ordinance and franchise agreement as a first reading required by the City's Charter. Respectfully Submitted By: �^ �_. - �. -.. �.� Antonio Puente, Jr. Assistant Director of Finance s:\legal\our documents\ordinances\12\ordinance - denton's franchise fina( 10-2-12.docx ORDINANCE NO. AN ORDINANCE GRANTING TO ONCOR ELECTRIC DELIVERY COMPANY LLC A NON-EXCLUSIVE FRANCHISE FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING, AND USING AN ELECTRIC DELIVERY UTILITY SYSTEM 1N THE CITY OF DENTON; REGULATING THE CONSTRUCTION WORK DONE BY THE GRANTEE 1N THE CITY; REQUIRING JO1NT USE OF POLES, TRENCHES, AND CONDUITS 1N CERTAIN 1NSTANCES; PRESCRIBING THE RELATIONSHIP AND RELATIVE RIGHTS BETWEEN GRANTEE AND OTHERS WITH RESPECT TO CONSTRUCTION IN THE CITY AND LOCATION OF FACILITIES; PRESCRIBING THE DUTIES, RESPONSIBILITIES, AND RULE MAKING AUTHORITY OF THE CITY MANAGER AND THE CITY WITH RESPECT TO ADMINISTRATION OF THIS FRANCHISE; REQUIRING CERTAIN RECORDS AND REPORTS AND PROVIDING FOR 1NSPECTIONS AND LOCATION OF PRINCIPAL OFFICES; RESERVING TO THE GOVERNING BODY OF THE CITY THE RIGHT TO SET CHARGES AND RATES OF GRANTEE; PROVIDING THE RIGHTS AND RESPONSIBILITIES OF THE GOVERNING BODY IN SETTING THE RATES; PROVIDING FOR ENFORCEMENT OF THE FRANCHISE; PRESCRIBING THE COMPENSATION TO THE CITY FROM THE GRANTEE FOR THE FRANCHISE PRIVILEGE; PROVIDING FOR ASSIGNMENT OF THE FRANCHISE; PROVIDING INDEMNITY OF THE CITY AND ITS EMPLOYEES; PROVIDING FOR GOOD FAITH EFFORT; PROVIDING FOR 1NSURANCE; SETTING FORTH THE TERM OF THE FRANCHISE AND ITS RENEWAL; REPEALING ORDINANCE NO. 2001-405 AS AMENDED; PROVIDING FOR ACCEPTANCE OF THE FRANCHISE BY GRANTEE; FINDING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS; SECTION 1. GRANT OF AUTHORITY, There is hereby granted to Oncor Electric Delivery Company LLC, its successors and assigns, (herein called "Company") the non-exclusive right, privilege, and franchise to construct, extend, maintain and operate in, along, under and across the present and future streets, alleys, highways, public utility easements, and public ways ("Public Rights-of-Way") of the City of Denton, Texas, (herein called "City"), electric power lines, with all necessary or desirable appurtenances (including underground conduits, poles, towers, wires, transmission lines and other structures, and telephone and communication lines for Company's own use) ("System") for the purpose of delivering electricity to the City, the inhabitants thereof, and persons, firms and corporations beyond the corporate limits thereof, for the term set out in Section 16, The franchise granted herein is not exclusive and nothing herein contained shall be construed so as to prevent the City from granting other lilce or similar rights, privileges and franchises to any other person, firm or corporation, SECTION 2. CITY AUTHORITY; DELEGATION. (a) The City Manager of the City of Denton or designee, if any (City Manager), is the Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 1 s:\legal\our documents\ordinances\I2\ordinance - denton's franchise final 10-2-12.docx principal City ofiicer responsible for the administration of this franchise and shall oversee and review the operations of Company under this franchise. The City may delegate to the City Manager the exercise of any of the powers conferred upon the City by its charter or by law relating to supervising Company in the exercise of the rights and privileges herein conferred, including calculation of payments due to the City under this franchise or state law. The City Manager shall have the authority to make and publish, after notice to those affected and an opportunity to submit written comments, such rules and regulations necessary to carry out the duties and power conferred upon the City Manager. (b) The governing body of the City reserves to itself exclusively the power to establish policy, and to fix and regulate the general charges, rates, and services of the Company, to the full extent that such power is provided in the charter, this franchise, and state law, The City Manager shall have the authority to malce and publish, after notice to those affected and an opportunity to submit written comments, such rules and regulations as necessary to assist the governing body of the City in exercising its reserved powers. (c) The City and the City Manager shall have full authority to administer this franchise and to keep fully informed as to all matters in connection with or affecting the construction, reconstruction, maintenance, operation, and repair of the properties of the Company's System within the City's Public Rights-of-Way. Irrespective of whether City retains original jurisdiction over the rates and services of Company, the City and the City Manager shall maintain full authority to administer this franchise and to oversee and review the operations of the Company pursuant to the terms of this franchise. (d) The City Manager shall provide written notice to the Company of any designee contemplated by this section. The City Manager may limit, change, or revolce such designation at will by service of written notice to the Company. Such designation, limitation, change or revocation shall not be effective until service of written notice thereof on the Company, except that changes due solely to succession in office or position of a City officer or employee shall become effective immediately and the City shall serve written notice thereof on the Company within a reasonable time. SECTION 3. REGULATION BY CITY & PLACEMENT OF COMPANY FACILITIES. (a) Work done in connection with the construction, reconstruction, maintenance, repair or operation of the Company's System shall be subject to and governed by all valid and enforceable ordinances, laws, rules, and regulations of the City and the State of Texas. To the extent that such City ordinances rules and regulations conflict with specific provisions of this Franchise, the Franchise provisions apply, to the extent allowed by law, (b) Nothing herein shall be deemed a waiver, release or relinquishment of either party's right to contest, appeal, or iile suit with respect to any action or decision of the other party, including ordinances adopted by the City that Company believes are in violation of any federal, state, or local law or regulation. The City will endeavor to provide Company notice and opportunity to review and comment upon proposed ordinances relating to the Public Rights-of- Way. Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 2 s:\legal\our documents\ordinances\12\ordinance - denton's franchise final 10-2-12.docx (c) The governing body of the City may require Company from time to time to place certain facilities underground. If the governing body of the City so requires placement of facilities underground, adequate provision shall be made to compensate Company for the increased costs involved. (d) In accordance with direction given by the authority of the governing body under the police and regulatory powers of the City, the placement of poles and excavations and other construction in the Public Rights-of-Way shall interfere as little as practicable with the use of the streets, sidewallcs, and alleys. Company has the right to request City Council review of this or any actions concerning Company use of the Public Rights-of-Way. (e) Company shall construct its facilities in conformance with the applicable provisions of the National Electric Safety Code. SECTION 4. CONSTRUCTION AND MAINTENANCE; EXCAVATION. (a) Except in an emergency, the Company shall comply with applicable City ordinances and rules pertaining to notification, when excavating in any Public Rights-of-Way. The City shall be notified as soon as practicable regarding worlc performed under emergency conditions and Company shall comply with the City's reasonable requirements for restoration of the excavated area. (b) City shall have the ability at any time to require Company to repair, remove or abate any distribution pole, wire, cable, or other distribution structure that is determined to be unnecessarily dangerous to life or property. After receipt of notice, Company shall either cure said dangerous condition within a reasonable time, or provide City with facts or arguments in refuting or defending its position that said condition is not a condition that is unnecessarily dangerous to life or property, In the event City finds that Company has not sufficiently addressed said dangerous condition by either of the aforementioned methods, City shall be entitled to exercise any and all of the following cumulative remedies: 1. The commencement of an action against Company at law for monetary damages. 2. The commencement of an action in equity seeking injunctive relief or the speciiic performance of any of the provisions, which as a matter of equity, are specifically enforceable, (c) The rights and remedies of City and Company set forth in this Franchise Agreement shall be in addition to, and not in limitation of, any other rights and remedies provided by law or in equity. City and Company understand and intend that such remedies shall be cumulative to the maximum extent permitted by law and the exercise by City of any one or more of such remedies shall not preclude the exercise by City, at the same or different times, of any other such remedies for the same failure to cure. However, notwithstanding this Section or any other provision of this Franchise, City shall not recover both liquidated damages and actuai damages for the same violation, breach, or noncompliance, either under this Section or under any other provision of this Franchise. Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 3 s:\legal\our documents\ordinances\l2\ordinance - denton's franchise final 10-2-12.docx (d) In the event that the performance by either party of any of its obligations or undertalcings hereunder shall be interrupted or delayed by an act of God or the common enemy or the result of war, riot, civil commotion, sovereign conduct, or the act or conduct of any person or persons not party or privy hereto, then such party shall be excused from performance for a period of time as is reasonably necessary after such occurrence to remedy the effects thereof, and each party shall bear the cost of any expense it may incur due to the occurrence. (e) Company shall promptly restore to as good condition as before working thereon, and to the reasonable satisfaction of the City, Public Rights-of-Way excavated by it. SECTION 5. JOINT USE OF POLES, TRENCHES, AND CONDUITS. (a) Company may be required to attach its wires to poles owned and maintained by another person or corporation, or to permit the wires of another person or corporation to be attached to the poles owned and maintained by the Company, upon reasonable terms and for just compensation. The Company may require another person or corporation to furnish evidence of adequate insurance and provide indemnity covering the Company and adequate bonds covering the performance of the person or corporation attaching to the Company's poles as a condition precedent to giving permission to any person or corporation to attach wires to Company's poles. Company's requirement for such insurance and indemnity must be reasonable. (b) The Company shall have authority to require that all work undertalcen, by or on behalf of another person or corporation, on any Company poles shall be performed in accordance with the following safety and engineering standards; (1) the National Electrical Safety Code; (2) the rules and regulations of the Occupational Safety & Health Administration ("OSHA"); (3) other applicable laws or regulations of any governing authority or regulatory body, having jurisdiction; and (4) Company's standards and procedures, and shall not interfere with the erection, replacement, operation, repair, or maintenance of the wires and appurtenances of the persons or corporation occupying the poles. Company shall not be required to attach its wires to the poles of another person or corporation or to permit the wires of another person or corporation to be attached to Company's poles if it can be satisfactorily shown that Company will be subjected to increased rislcs of interruption of service or liability for accidents, or if the poles, wire, and appurtenances of such other person or corporation are not of the character, design, and construction required by or are not being maintained in accordance with modern practice, or if sufficient clearance or space is not available on the pole. (c) Company may be required by the city to share trench space for cables or ducts with another person or corporation for the placement of cables or wires underground. Compensation to the Company as well as terms of sharing trench space shall be resolved as provided in subsection (a) of this section. Also, Company may require insurance and indemnification as provided in subsection (a). Ducts, cables, or wires shall be placed in trenches in compliance with applicable safety standards and in a manner that does not interfere with Company's cables or wires, as provided in subsection (b). SECTION 6. UNDERGROUND CONDUITS AND POLES -USE BY CITY, (a) If Company shall from time to time have spare ducts in its underground conduits or space on any of its poles, in the allotted communications space, not then necessary in the Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 4 s:\legal\our documents\ordinances\12\ordinance - denton's franchise final 10-2-12.docx conduct of its business, it shall permit the City to use one such duct in each conduit or reasonable communications space on poles, or both, for the City's police and fire alarm wires, traffic control wire or cable, iiber optic lines connecting City facilities or other similar, appropriate non- commercial, governmental use. If additional duct(s) or communications space is not available for City as requested, City shall be responsible for any and all construction costs related to providing the additional duct(s) or communications space as requested. If Company shall construct or extend additional conduits or erect additional poles, the governing body of the City may require the Company to provide one such duct in each conduit, or reasonable communications space on poles, or both, for the City's own use as aforesaid understanding that Company does not reserve conduit or communications space on poles for other parties. In either event, the City shall pay Company a fair rental therefore. The requirements of Section 5(b) apply to City use of Company conduits and poles. (b) Company shall cooperate with the City at all times by providing timely and complete information regarding the location of conduits and poles, upon request. Company and City shall cooperate and coordinate their efforts to malce the most efficient and economical use of facilities. (c) City shall not sell, lease or otherwise malce available its rights to use Company's facilities to any third party for commercial purposes. Such rights are provided solely for the non- commercial, governmental use by the City. However, this restriction shail not prevent the City from using the services of a third party commercial entity to manage or operate the City's facilities on behalf of the City, so long as no resale or other commercial use of such facilities shall occur. (d) Company is not authorized to license or lease to any person or entity the right to occupy or use the City's Public Rights-of-Way for the conduct of any private business. SECTION 7. CONFORMANCE WITH PUBLIC IMPROVEMENTS. Upon request by City, Company shall relocate its facilities at the expense of the City except as otherwise required by Section 37.101(c) of the Texas Statutes Utilities Code, which statutory provision currently states, the governing body of a municipality may require an electric utility to relocate the utility's facility at the utility's expense to permit the widening or straightening of a street. City and Company further agree that widening and straightening of a street includes the addition of any acceleration, deceleration, center or side turn lanes, and sidewallcs, provided that the City shall provide Company with at least thirty (30) days notice and shall specify a new location for such facilities along the Public Rights-of-Way of the street. Company shall, except in cases of emergency conditions or worlc incidental in nature, obtain a permit, if required by city ordinance, prior to performing work in the Public Rights-of-Way, except in no instance shall Company be required to pay fees or bonds related to its use of the Public Rights-of-Way, despite the City's enactment of any ordinance providing the contrary. SECTION 8. WORK BY OTHERS. (a) The City reserves the right to lay, and permit to be laid, storm sewer, gas, water, wastewater and other pipe lines, cables, and conduits, and to do and permit to be done any underground or overhead worlc that may be necessary or proper in, across, along, over, or under a Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 5 s:\legal\our documents\ordinances\12\ordinance - denton's franchise final 10-2-12.docx Public Rights-of-Way occupied by the Company, The City also reserves the right to change in any manner any curb, sidewallc, highway, alley, public way or street. In permitting such work to be done, the City shall not be liable to the Company for any damage so occasioned, except as provided in Section 14 hereof, but nothing herein shall relieve any other person or corporation from responsibility for damages to the facilities of Company. (b) In the event that the governing body of the City authorizes someone other than the Company to occupy space within the Public Rights-of-Way, such grant shall be subject to the rights herein granted or heretofore obtained by the Company. In the event that the governing body of the City shall close or abandon any Public Rights-of-Way which contains existing facilities of the Company, any conveyance of land within such closed or abandoned Public Rights-of-Way shall be subject to the rights herein granted or heretofore obtained by Company. Provided, that the Company may be ordered to vacate any land so conveyed if an alternate route is practicable and if the Company is reimbursed by the person to whom the property is conveyed for the reasonable costs of removal and relocation of facilities. (c) If the City shall require Company to adapt or conform its facilities, or in any way or manner to alter, relocate, or change its property to enable any other corporation or person, except the City, to use, or use with greater convenience, said Public Rights-of-Way, Company shall not be bound to malce any such changes until such other corporation or person shall have undertalcen, with good and sufiicient bond, to reimburse the Company for any cost, loss, or expense which will be caused by, or arise out of such change, alteration, or relocation of Company's property; provided however, that the City shall never be liable for such reimbursement, due to Company from such other corporation or person. SECTION 9. COMPENSATION. In consideration of the grant of said right, privilege and franchise by the City and as full payment for the right, privilege and franchise of using and occupying the said Public Rights-of- Way, and in lieu of any and all occupation taxes, assessments, municipal charges, fees, easement taxes, franchise taxes, license, permit and inspection fees or charges, street taxes, bonds, street or alley rentals, and all other taxes, charges, levies, fees and rentals of whatsoever kind and character which the City may impose or hereafter be authorized or empowered to levy and collect, excepting only the usual general or special ad valorem taxes which the City is authorized to levy and impose upon real and personal property, sales and use taxes, and special assessments for public improvements, Company shall pay to the City the following: (a) On an quarterly basis, a charge, as authorized by Section 33.008(b) of PURA, equal to a franchise fee factor of 0.002859 (the "Base Factor"), multiplied by each kilowatt hour of electricity delivered by Company to each retail customer whose consuming facility's point of delivery is located within the City's municipal boundaries. Company has agreed to increase the franchise fee factor to 0.003002 (the "Increased Factor"); however, should the PUC at any time in the future disallow Company's recovery through rates of the higher franchise payments made under the Increased Factor as compared to the Base Factor, then the franchise fee factor shall immediately revert to the Base Factor of 0.002859 and all future payments, irrespective of the time period that is covered by the payment, will be made using the Base Factor on a quarterly prospective schedule as follows: Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 6 s:\legal\our documents\ordinances\I2\ordinance - denton's franchise final 10-2-12.docx Payment Due Basis Period and Privile�e Period February 15 October 1— December 31 May 15 January 1— March 31 August 15 April 1— June 30 November 15 July 1— September 30 1. The first payment hereunder shall be due and payable on or before February 15, 2013 and will cover basis and privilege period of October l, 2012 through December 31, 2012. If this Franchise is not effective prior to the first quarterly payment date, Company will pay any payments due within 30 days of the effective date of this agreement. The final payment under this Franchise is due on or before November 15, 2022 and covers the basis and privilege period of July 1, 2022 through September 30, 2022; and 2. After the final payment date of November 15, 2022, Company may continue to malce payments in accordance with the above schedule. The City acknowledges that such continued payments will correspond to privilege periods that extend beyond the term of this franchise and that such continued payments will be recognized in any subsequent franchise agreement as full payment for the relevant periods. (b) A sum equal to four percent (4%) of gross revenues received by Company from services identified as DD1 through DD24 in Section 6.1.2 "Discretionary Service Charges," in its Tariff for Retail Delivery Service (Tarif�, effective 1/1/2002, that are for the account and benefit of an end-use retail electric consumer. Company will, upon request by City, provide a cross reference to Discretionary Service Charge numbering changes that are contained in Company's current approved Tariff. 1. The franchise fee amounts based on "Discretionary Service Charges" shall be calculated on an annual calendar year basis, i,e. from January through December 31 of each calendar year. 2. The franchise fee amounts that are due based on "Discretionary Service Charges" shall be paid at least once annually on or before Apri130 each year based on the total "Discretionary Service Charges", as set out in Section 6(b), received during the preceding calendar year. The initial Discretionary Service Charge franchise fee amount will be paid on or before Apri130, 2013 and will be based on the calendar year January 1 through December 31, 2012. The iinal Discretionary Service Charge franchise fee amount will be paid on or before April 30, 2023 and will be based on the months of January 1 through September 30, 2022. 3. Company may file a tariff or tariff amendment(s) to provide for the recovery of the franchise fee on Discretionary Service Charges. 4. City agrees (i) to the extent the City acts as regulatory authority, to adopt and approve that portion of any tariff which provides for 100% recovery of the franchise fee on Discretionary Service Charges; (ii) in the event the City intervenes in any regulatory proceeding before a federal or state agency in which the recovery of the Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 7 s:\legal\our documents\ordinances\12\ordinance - denton's franchise final 10-2-12.docx franchise fees on such Discretionary Service Charges is an issue, the City will talce an affirmative position supporting the 100% recovery of such franchise fees by Company and; (iii) in the event of an appeal of any such regulatory proceeding in which the City has intervened, the City will talce an affirmative position in any such appeals in support of the 100% recovery of such franchise fees by Company. 5. City agrees that it will talce no action, nor cause any other person or entity to talce any action, to prohibit the recovery of such franchise fees by Company, 6. In the event of a regulatory disallowance of the recovery of the franchise fees on the Discretionary Service Charges, Company will not be required to continue payment of such franchise fees. (c) With each payment of compensation required by Section 9(a), Company shall furnish to City a statement that provides the franchise basis period, the total amount of lcilowatt hours of electricity delivered during the franchise basis period by the Company to retail customers whose consuming facility's point of delivery is located within the City's municipal boundaries, and the privilege period covered by the payment. The parties agree that any information exchanged or provided to the other party is true and correct to the best of their knowledge. (d) With each payment of compensation required by Section 9(b), Company shall furnish to the City a statement reflecting the total amount of gross revenues received by Company within the City's municipal boundaries for services identified in its Tariff, Section 6.1.2, "Discretionary Service Charges," Items DD1 through DD24. The parties agree that any information exchanged or provided to the other party is true and correct to the best of their lcnowledge. SECTION 10. RECORDS, REPORTS, AND INSPECTIONS. (a) The Company shall use the system of accounts and the forms of boolcs, accounts, records, and memoranda prescribed by the Public Utility Commission of Texas, or as mutually agreed to by the City and Company. Should the Public Utility Commission of Texas cease to exist, the City retains the right to require the Company to maintain a system of accounts and forms of boolcs and accounts and memoranda prescribed either by the Federal Energy Regulatory Commission or the National Association of Regulatory Utility Commissioners or the successor of either of these organizations as mutually agreed to by the City and Company. (b) The City shall have the right to, pursuant to Section 33.008(e) of the Texas Utilities Code, conduct an audit or other inquiry in relation to a payment made by Company less than two (2) years before the commencement of such audit or inquiry. City and Company may agree to a different timeframe. The City may, if it sees fit, and upon reasonable notice to the Company, have the books and records of the Company examined by a representative of the City to ascertain the correctness of the franchise fee payments made under Section 9. (c) The City shall retain all of the investigative powers and other rights provided to the City by the charter and state law. Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 8 s:\legal\our documents\ordinances\12\ordinance - denton's Franchise final 10-2-12.docx (d) Company will make available public reports it provides to the PUC, FERC, or SEC as City may reasonably require in the administration of this franchise and upon specific request by City. SECTION 11. FRANCHISE AND OTHER VIOLATIONS. Upon evidence being received by the governing body of the City that a violation of this franchise, City charter provision, or ordinance lawfully regulating Company in the furnishing of service hereunder is occurring or has occurred, it shall at once cause an investigation to be made. If the governing body of the City finds that such a violation exists or has occurred, it shall talce the appropriate steps to secure compliance. SECTION 12. PRESERVATION OF RECORDS; LOCATION. (a) The Company is a legal entity authorized to conduct business in this state under Texas law and having legal capacity and any authority that might be required under state or federal law to operate, construct, reconstruct, and maintain an electric delivery system in the City. (b) Company shall make available all of its boolcs, records, accounts, documents and papers relevant to (1) Company's use of the Public Rights-of-Way in accordance with this Franchise, and (2) Company's provision of retail electric delivery service within the City of Denton for purposes of any City audit of franchise fees paid pursuant to this franchise; upon reasonable notice by the City of not less than 20 days, or such longer time as agreed to by City and Company. If Company disagrees that the information requested is relevant, Company and City shall select a third party agreeable to both to assist them in reaching agreement, with the cost, if any, shared equally. If after a reasonable time the parties are not able to reach agreement, City may seek to enforce its audit rights through any available remedies, Such production may be at Company's offices if within the City, appropriate City facilities or other location provided by the Company and agreeable to the City. City agrees that customer-specific information shall be provided only to City's Auditor, and the City's Auditor shall not provide such information to any other City department, empioyee or official without Company's prior consent, (c) The City agrees, to the extent allowed by law, to maintain the confidentiality of any information obtained from Company that the Company, at the time the information is provided to City, has clearly designated as confidential or proprietary. City shall not be liable to Company for the release of any information the City is required by law to release. City shall provide notice to Company of any request for release of non-public information prior to releasing the information to the public so as to allow Company adequate time to pursue available remedies for protection. If the City receives a request under the Texas Public Information Act that includes Company's proprietary information, City will notify the Texas Attorney General of the proprietary nature of the document(s). The City also will provide Company with a copy of this notification, and thereafter Company is responsible for estabiishing that an exception under the Act allows the City to withhold the information. Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 9 s:\legal\our documents\ordinances\l2\ordinance - denton's franchise final 10-2-12.docx SECTION 13. ASSIGNMENT OF FRANCHISE. (a) The rights granted by this Franchise inure to the benefit of Company. The Company may, without consent by City, transfer or assign the rights granted by this Franchise to a parent, subsidiary or affiliate, provided that such parent subsidiary or affiliate assumes all obligations of Company hereunder and is bound to the same extent as Company hereunder, and has net capital and liquid assets reasonably equivalent to the Company's as of the month immediately preceding the transfer or there are provided other guarantees or assurances of the transferee's or assignee's financial ability to perform this Franchise reasonably acceptable to the City. Company shall give City written notice thirty (30) days prior to such assignment. (b) If Company engages in a transaction that requires filing with, and prior approval by, the Public Utility Commission of Texas pursuant to Section 37.154 or Section 39.915 of the Public Utility Regulatory Act or successor statute, Company shall give City notice within five (5) worlcing days after such filing. Nothing in this section shall be construed as to limit the ability of the City to take a position either for or against such approval in any regulatory proceeding. (c) In the event that the Public Utility Commission of Texas no longer has the authority currently granted in PURA §§ 37.154 or 39.915, City will have the right to approve, by ordinance, the transfer or assignment of the franchise, except as provided in Section 13(a). City agrees that said approval shall not be unreasonably withheld or delayed. Any such assignment or transfer shall require that said Assignee assume all obligations of Company and be bound to the same extent as Company hereunder. If within the first 90 days after assignment to Assignee, City identiiies a failure to comply with a material provision of this Franchise, City shall have the right, after notice and opportunity for hearing before Council, to terminate this Franchise, SECTION 14. 1NDEMNITY. In consideration of the granting of this franchise, Company agrees to defend, indemnify and hold harmless the City and all of its officers, agents, and employees (the Indemnitees"), from and against all suits, actions, or claims or damages arising out of (i) any injury to or death of any person or persons, or (ii) damages to or loss of any property, in each case occasioned by Company or its officers', agents', employees', or subcontractors' intentional and/or negligent acts or omissions in connection with Company's operations in the Public Rights-of-Way or arising out of a breach of any of the terms or provisions of this ordinance by way of strict liability or negligence in the construction, maintenance, operation, or repair of the System; except that the indemnity provided for in this paragraph shall not apply to any liability determined by a court of competent jurisdiction to have resulted from the sole negligence or intentional acts or omissions of the City, its officers, agents, and employees. In addition, in the event of joint and concurrent negligence or fault of both the Company and the City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the state of Texas without, however, waiving any governmental immunity available to the City under Texas law and without waiving any of the defenses of the parties under Texas law. It is understood that it is not the intention of the parties hereto to create liability for the beneiit of third parties, but that this agreement shall be solely for the benefit of the parties hereto and shall not create or grant any rights, contractual or otherwise, to any person or entity. Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 10 s:\legal\our documents\ordinances\12\ordinance - denton's franchise final 10-2-12.docx SECTION 15. INSURANCE. Company will insure against the rislcs undertalcen pursuant to their franchise including indemnification under Section 14 hereo£ Such insurance may be in the form of self-insurance to the extent permitted by applicable law under a Company approved formal plan of self-insurance maintained in accordance with sound accounting practices otherwise, Company shall maintain reasonably adequate insurance covering its obligations of indemnity under Section 14 hereo£ A certificate of insurance shall be provided to the City annually and upon any substantial change in the nature of its coverage under this section. Should Company elect to self-insure, its annual notice to the City shall contain information identifying the process for filing a claim. SECTION 16, TERM. The City hereby grants to the Company the authority set forth in Section 1 of this Ordinance for a term ending September 30, 2022 for the purpose of constructing, maintaining, operating and replacing all or any portion of the system used for the delivery of electricity to retail Customers located within the Corporate Limits, as they may be amended from time to time. This franchise agreement shall have an initial term of ten (10) years and expire on September 30, 2022; provided that, if either City or Company provides written notice of its intent to renegotiate this Franchise at least 180 days prior to the expiration of the initial term, this Franchise shall be extended for one (1) year on the same terms and conditions as set forth herein to allow for renegotiation of a franchise agreement. SECTION 17. CONFORMITY TO CONSTITUTION, STATUTES, CHARTER, AND CITY CODE. This ordinance is passed subject to the applicable provisions of the Constitution and Laws of the State of Texas, the Charter of the City, and the City Code. This franchise agreement shall in no way affect or impair the rights, obligations, or remedies of the parties under the Public Utility Regulatory Act of Texas, or amendments thereto, SECTION 18. GOOD FAITH EFFORT. Company and City both agree to faithfully adhere to all applicable federal; state and City rules and regulations pertaining to non-discrimination, equal employment and afiirmative action, Company also agrees to continue in its commitment to maintain fairness and equality in the worlcplace and in its purchases of goods, equipment, and other services. SECTION 19. RIGHT OF APPEAL. Nothing herein shall be deemed a waiver, release or relinquishment of either party's right to contest or appeal any action or decision of the other party made contrary to any federal, state or local law or regulation. SECTION 20. REPEAL. That Ordinance No. 2001-405, as amended, be and the same is hereby specifically repealed, as of the commencement date under Sec. 16 hereo£ All other ordinances, rules, Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 11 s:\legal\our documents\ordinances\l2\ordinance - denton's francl�ise final 10-2-12.docx regulations, and agreements which in any manner relate to the regulation of or provision for electric utility services by Company within the City shall remain in full force and effect until and unless duly modified pursuant to applicable state law. This Ordinance shall supersede any and all other franchises granted by the City to Company, its predecessors and assigns. SECTION 21. EFFECTIVE DATE; AUTHENTICATION, This ordinance shall talce effect immediately from and after its passage, publication, and written acceptance by Company, said written acceptance to be filed by Company with the City within sixty (60) days after final passage and approval hereof, in accordance with the provisions of the Charter of the City, and it is accordingly so ordained. It is hereby officially found that the meeting at which this Ordinance is passed is open to the public and that due notice of this meeting was posted, all as required by law. SECTION 22. ACCEPTANCE OF FRANCHISE, In order for this franchise to be effective, the Company shall, within sixty (60) days from the passage of this ordinance, file in the office of the City secretary a written instrument signed and acicnowledged by a duly authorized officer, in substantially the following form: To the honorable Mayor and City Council of the City of Denton: Oncor Electric Delivery Company LLC (Company), acting by and through the undersigned authorized officer, hereby accepts Ordinance No. granting a franchise to Company. Senior Vice President Oncor Electric Delivery Company LLC ATTEST: Secretary Executed this, the day of , 2012. The acceptance shall be duly acicnowledged by the person executing the same. In the event the acceptance is not filed within the 60 day period this ordinance and the rights and privileges hereby granted shall terminate and become null and void. Pending such time, City shall publish, and Company shall pay all publication expenses regarding notification of, the accepted Franchise, which said publication shall be the full text of the adopted ordinance for a period of once per weelc for three (3) consecutive weeks. Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 12 s:\legal\our documents\ordinances\12\ordinance - denton's franchise final 10-2-12.docx SECTION 23. NOTICE TO PARTIES. Notices required to be given under this franchise shall be deemed to be given when delivered in writing, personally to the person designated below, or when iive days have elapsed after it is deposited in the United States Mail with registered or certified mail postage prepaid to the person designated below, or on the next business day if sent by Express Mail or overnight air courier addressed to the person designated below: If to City. City Manager City of Denton 215 E. McKinney Denton, Texas 76201 with a copy to: City Attorney's Office City of Denton 215 E. McKinney Denton, Texas 76201 If to the Company: Director, Regulatory Affairs Oncor Electric Delivery Company LLC 1616 Woodall Rodgers Fwy, Dallas, Texas 75202-1234 City or Company may change the position and/or addresses listed above by providing the other party with written notice of the change, with such change talcing effect upon receipt of such notice. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY I: _ APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: r''`�� .. ,,;�",,°"'Y� � �"'� i � , , . . �X � _ Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 13 s:\legal\our documenfs\ordinances\12\ordinance - denton's franchise ftnal 10-2-12.docx The City of Denton, Texas, acting herein by its duly constituted authorities, hereby declares the foregoing Ordinance passed on first reading on the day of , 2012, and passed on second reading on the day of , 2012, and passed on third reading on the day of , 2012, and being fully effective as of the day of , 2012. Marlc A. Burroughs, Mayor Dalton Gregory, Council Member Chris Watts, Council Member James King, Council Member Peter Kamp, Mayor Pro-Tem Kevin Roden, Council Member Jim Engelbrecht, Council Member The above and foregoing Ordinance read, adopted on first reading and passed to second reading by the following votes, this the day of , 2012, at a regular session of the City Council. Marlc A. Burroughs, Mayor, voting Pete Kamp, Mayor Pro-Tem, voting Kevin Roden, Council Member, voting Dalton Gregory, Council Member, voting Jim Engelbrecht, Council Member, voting Chris Watts, Council Member, voting James King, Council Member, voting The above and foregoing Ordinance read, adopted on second reading and passed to third reading by the following votes, this the day of , 2012, at a regular session of the City Council, Mark A. Burroughs, Mayor, voting Pete Kamp, Mayor Pro-Tem, voting Kevin Roden, Councii Member, voting _ Dalton Gregory, Council Member, voting Jim Engelbrecht, Council Member, voting Chris Watts, Council Member, voting James King, Council Member, voting Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 14 s:Uega1\our documents\ordinances\12\ordinauce - denton's franchise final 10-2-12.docx The above and foregoing Ordinance read, adopted on third reading and passed by the following votes, this the day of , 2012, at a regular session of the City Council. Marlc A. Burroughs, Mayor, voting Pete Kamp, Mayor Pro-Tem, voting Kevin Roden, Council Member, voting _ Dalton Gregory, Council Member, voting Jim Engelbrecht, Council Member, voting Chris Watts, Council Member, voting _ James King, Council Member, voting _ State of Texas County of Denton I, Jennifer Walters, City Secretary of the City of Denton, Texas, do hereby certify that the above and foregoing is a true and correct copy of the Franchise Agreement Ordinance between the City of Denton and Oncor Electric Delivery Company LLC. The same is now recorded as Ordinance Number in the Ordinance Records of the City of Denton, Texas. WITNESS MY HAND this the day of , 2012. JENNIFER WALTERS CITY SECRETARY Oncor Electric Delivery Company LLC/City of Denton Electric Franchise Page 15 �,�'Q 1� II,.�II "'n tl* II II u�"h�,�°�?� tl* II II tl�'�:�q II'^�� AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 DEPARTMENT: Parks and Recreation ACM: John Cabrales �� SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of perfornung live music by the SuperEstrellas at the La Estrella Mini Marlcet, on the corner of McKinney Street and Railroad Avenue, for each Friday night beginning December 7, 2012, through January 11, 2013, from 8:00 p.m. until midnight. This request is for an extension of hours from 10 p.m. to nudnight for anlplified sound. The amplified sound will remain at the allowable 65 decibels. Staff recommends the exception be granted until midnight. The applicant requests an exception for every Friday for a one year period. Staff is suggesting that this trial period be approved, after which time the request can be reevaluated based on neighborhood input. In the past year, the Denton Police Department received eight noise complaints generated from this location. BACKGROUND Event organizer, Grace Samanq is requesting a noise exception for the purpose of having youth bands (ages 7-12) play each Friday night for the community's entertainment. The event will be held at the La Estrella Mini Market, located at 602 E. McKinney, and at the adj acent car wash at 202 Railroad Avenue. The event organizer anticipates about 20-30 people in attendance. The bands will be located in the car wash area and gtiests will parlc in the surrounding parlcing lots. RECOMMENDATION Staff recommends the exception be granted until nudnight. Council has the option to reduce the noise exception time franle and/or the number of occurrences. EXHIBITS 1. Request for noise exception Respectfully submitted: �� Emerson Vorel, Director Parks and Recreation Department Prepared by: �� Community Events Coordinator From: Gricelda Samano [gsamanol@hotmail.com] Sent: Wednesday, November 14, 2012 11:30 PM To: Mc�eod,lanie T. Subject: Hello�! Hi, Janie I would like to Omit the petition for the Noise Variance for the Christmas Party On Saturday December 15, 2012. I would however keep my other petition standing: The performance of the SuperEstrellas a group of young kids that play music. Every Friday night from 9-12 wheather permitted. Thank you, Gricelda Samano tl�µ111II,"�tl*q.11u �'"h�j!�tl*IC.IItl� ;'q �,,.` AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 DEPARTMENT: Denton Municipal Electric ACM: Howard Martin, 349-8232 �"��i��"'''-- SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a contract of sale (herein so called), as attached to the ordinance and made a part thereof as Exhibit "A", by and between the City of Denton (the "City"), and Gary Dennis Dillard (the "Seller") contemplating the sale by Seller and purchase by City of a 3.480 acre tract of land, more or less, being generally located in the 2500 blocic of east McKinney street and situated in the M.E.P. & P.R.R. CO. Survey, Abstract Number 1475, City of Denton, Denton County, Texas (the "Property Interests"); for the purchase price of Three Hundred Ninety Thousand and No/100 Dollars ($390,000.00); authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transaction contemplated by the contract of sale; authorizing the expenditure of funds therefore; authorizing, to the extent applicable, relocation expendit�ires; and providing an effective date. (691cV Transnussion Line Re-build Project) The Public Utilities Board recommends approval (5-0). BACKGROUND In accord with the current 691cV Transmission Line Re-build project initiative, staff is undertalcing the identification of the additional land rights necessary to accommodate the constniction and operation of the electric transmission and distribution system improvements. Pyles Whatley Corporation has been engaged to provide real estate appraisal services in regard to the subject tract that will be directly impacted by the Project. In respect to the tract owned by Gary Dennis Dillard, the Project requires the fee acquisition of a 3.480 acre tract of land, to accommodate electric utilities and substation infrastnict�ire. Pyles Whatley Corporation has provided a real estate appraisal report in regard to Mr. Dillard's property tract. The City made an Initial Offer to purchase the Property Interests (Ordinance No. 2012-164), such offer authorized by the City Council on August 7, 2012, based on the findings in that appraisal report ($326,208.00). That offer to purchase and the appraisal report was subnutted to the Seller on August 13, 2012. The City made a Final Offer to purchase the Property Interests (Ordinance No. 2012-288), which was approved by the City Council on October 16, 2012. The Final Offer was submitted to the Seller on November 5, 2012. The Seller has recently subnutted a written counter offer in the amount of $390,OOO.00 OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) This tract is within the alignment previously recommended by the Public Utility Board and approved by the City Council. PUB April 9th (Electric Easement Acquisition), and July 23, 2012 (Executive Session regarding Substation sites and Fee Acquisitions) PUB October 8, 2012 Final Offer Approval Fee Acquisition — approval (5-0) City Council April 17, 2012 (Electric Easement Acquisition) City Council August 7, 2012 Initial Offer (Fee Simple Acquisition) City Council October 16, 2012 Final Offer (Fee Simple Acquisition) FISCAL INFORMATION The overall 69kV Transmission Line Rebuild project is being funded by issuing General Obligation Bonds which will be paid by Transnussion Revenue received from all other electric utilities who are members of the Electric Reliability Council of Texas (ERCOT). The purchase price of $390,000.00 plus closing costs as prescribed in the Contract of Sale are to be funded through these funding sources. BID INFORMATION Not applicable EXHIBITS 1. Ordinance 2. Location Map 3. PUB Minutes Respectfully subnutted, �'y.�.l '� � .� �'� . Phillip Williams General Manager Electric Administration Denton Municipal Electric Prepared by, �w ,� �a� �b,�,�F� .� `r ti��U� ,. G:, g rt u Pamela England Real Estate Specialist EXHIBIT l ,� s:\legal\our documents\ordinances\12\dillard contract of sale ord.dOC ORDINANCE NO, AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A CONTRACT OF SALE (HEREIN SO CALLED), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A", BY AND BETWEEN THE CITY OF DENTON (THE "CITY"), AND GARY DENNIS DILLARD (THE "SELLER"), CONTEMPLATING THE SALE BY SELLER AND PURCHASE BY CITY OF A 3.480 ACRE TRACT OF LAND, MORE OR LESS, BE1NG GENERALLY LOCATED 1N THE 2500 BLOCK OF EAST MCKINNEY STREET AND SITUATED IN THE M.E.P. & P.R.R. CO. SURVEY, ABSTRACT NUMBER 1475, CITY OF DENTON, DENTON COUNTY, TEXAS (THE "PROPERTY 1NTERESTS"); FOR THE PURCHASE PRICE OF THREE HUNDRED NINETY THOUSAND AND NO/100 DOLLARS ($390,000.00); AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE AND DELIVER ANY AND ALL OTHER DOCUMENTS NECESSARY TO ACCOMPLISH CLOSING OF THE TRANSACTION CONTEMPLATED BY THE CONTRACT OF SALE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AUTHORIZING, TO THE EXTENT APPLICABLE, RELOCATION EXPENDITURES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City made an Initial Offer (herein so called) to purchase the Property Interests, pursuant to Ordinance No. 2012-164, passed and approved by the City Council of the City of Denton on August 7, 2012; WHEREAS, the City made a Final Offer (herein so called) to purchase the Property Interests, pursuant to Ordinance No. 2012-288, passed and approved by the City Council of the City of Denton on October 16, 2012; WHEREAS, Seller has made a counteroffer to the Final Offer of City; WHEREAS, City is amenable to the counteroffer, and finds that it is in the best interest to agree to same; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEI�EBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute (i) the Contract of Sale, by and between the City of Denton, as buyer and Gary Dennis Dillard, as seller, in the form attached hereto and made a part hereof as Exhibit "A", with a purchase price of $390,000.00, plus certain costs as prescribed in the Contract of Sale; and (ii) any and all other documents necessary for closing the transaction contemplated by the Contract of Sale. SECTION 2. The City Manager is hereby authorized to malce expenditures (i) in accordance with the terms set forth in the Contract of Sale; and (ii) to the extent applicable, Ordinance No. 2012-073, dated April 17, 2012, pertaining to relocation related expenses and advisory services. SECTION 3, If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 4. This ordinance shall become effective immediately upon its passage and approval, � PASSED AND APPROVED this the day of , 2012. ATTEST: JENNIFER WALTERS, CITY SECRETARY : APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ,� � BY: ►7 MARK A. BURROUGHS, MAYOR STAT� OF `�'EXAS �OUNTY OF DENT019� � , � .,, ! : _. f►�i71Y t�131 �OU, AS iaVJNER OI' 'I'HE PIZOPERTY (AS DEI�IVED BELC�V�, HAVE T�IC RIGH'I' TO: (1) DI�CUS� AI�TY �F ++ 12. OR AGRE�IVIENT I�GAR��+TG 'I7EIE CITY CDF 7)�1°�'I'i)I�7'� ACQ�TISITION O�+' THE PROP�T�'I`�' «ITi3 Q�TH�1�; �R (2) 11�EP T�iE OFF�R OR AGREEMEl�IT COI�IFIIiEI�iTIAL, UI�tLESS TgIE OF�'El� OR AGREEMEI�IT I� SUSJ�CT TO ��IAPTER 552, GOVE1tI`I�l�t'I' C'OI)�. ? Thi Contract of Sale (the "Confiract"} is macie this ��`�� day oi �� =�i��L , 2012, effective as of the date of execution hereof by �� , as defined hexein (the "Effective Date"), by atid between Gary Dennis Dillard (referred to herein as "Seller") and the City of Denton, Texas, a Home Rule Municipal Corporation. of �NI%/,9 Denton County, Texas (referred to herein as "Buyer"). � RE�I`�.f�LS WHEREAS, Seller owns that certain tract of land being more pa��ticularly described on Exhibit "A", attached hereto and made a part hereof for all purposes, being located in Bentan Cotmty, Texas (ti�,e "Latad"); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, together with any and all rights or ixxterests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and iixtures thereon and all other rights and appurtenanc�s to the Land (collecfively, the "Froperty"), ,�. ,, � ,,�, For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, and subject to the reservations herein, Seller agrees to sell and convey to Buyer, and Buyer agxees to purchase from� Seller, the Property, Seller, subject to the limitation of such reservation made herein, shall reserve, for himself, lus lieu�s, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced fi•om the Property. Seller, his heixs, devisees, succ�ssors and assigns shall not have th� right to use ox access the surface of the Property, in any way, �n�uier or farlu, in connection with or related to the reserved oil, gas, and other minerals and/or xelated ta exploxation and/or production of the oil, gas and other minerals reserved herein, uicluding without linutation, use or acc�ss of the sarface of the Prop�rty for the location of any well or dri11 sites, well bores, whether veiiical or a�ry deviation frozn vertical, water wells, p�t areas, seismic activities, tanks or tank batteries, pipelines, roads, electxicity or other utility infrasttucture, and/or for subjaccnt or lateral support for any suz'face facilities or well bores, or any other infrastructure or improvement of aiiy kind or type in connection with or related to the resez�ved oil, gas and oiher minerals, ancllar related ta the explorafian or produetion of same. As used herein, the teriu "n�inerals" shall include oil, gas and all associaied hydrocarbons, and shall exclude (i) all substances (except oil, gas and all associated hydrocarbons) that any reasonable extraction, mining or other exploration and/or production method, operation, process or procedure would consume, de�lete ar desiroy the surface of the Property; and (ii) all substances (except oil and gas) which are at or near the surface of the Property. The intent of the parti�s hereto is that the meaning of the term "minerals" as utilized herein, slaall be in accordance witth that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "sui�face of the Property" shall uiclude the area from the surface of the earth to a depth of �ive hundred feet (500') below the surface of the earth az�d all areas above the siuface of ttie eat�th. AR'TICI.E II PURCHASE P1aICE t�NID EARl`tEST QN�Y ,� �, �� '� r! /o� �z- 2.41 Purehase Pri�e. Th�`�Purchase Price o b� pai o eller for the Propei�ty is the sum of Three �Iundred T-a�a "- � Thausand T°�� .� *�nd No/100 Do ars ( ' , 00) ( " se Price"). ° 1 , � � � �=� �;°� �� t. �� ir rL� ,�� .�._--- . , �88` t e Purc ia 2.02 Earnest lYloney. Buyer shall daposit the sum of One Thousaai azi No/100 � Dollars ($1,000.00), as Eat�nest Money (herein so called) with T��° -RP��I�r:�:�; z2s �� ' , Denton, Texas, 76205 (the "Title Company"), as escrow = agent, within fourtean (14) calendar days of the Effective Date hereof. All interest eanied �x �� a thereon shall become part of the Earnest Money and shall be applied or disposed of in the �� '�`' `"' �� same mannex as the ori�inal Earnest Money deposit, as provided in this Contract. If the �`�� p�'��F purchase contemplated hereunder is consummated in accordance with the terms and the �� q provisiox�s hereoF, the Earnest Money, together with all interest earned thereon, shall be�` ��-�`� applied to the Purchase Price at Closing. In all other events, the Earnest Money, and the ��'y" /� %G interest acciued thereon, shall be ciisposed of by the Trtle Company as provided m this � Contract. 2.03 Independent Contract Considera�ion. 'Within fourteen (14) calendar days after the Effective Date, Buyer shall deliver to the Title Company, payable t� and for the benefit of Seller, a ck�ecic in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Cont�act Consideration"), which amouaxt the parties hereby acknowledge and agr�e }�as been bargained for and agreed to as consideration for Seller's execution and deliveiy of the Contract. The Inclependent Cont�act Cansideration is in Contract of Sale �� addition to, and independent of any other consideration or payrnent provided in this Contract, is non-refundable, and shall be retained by Seller uotwithstanding any other provision of this Contrac�, ARTICLE III 'I'I'I'LE Al\TI) �UlaV�Y 3.01 `Title Com�nit�nent. {a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be furaished to Buyer a current Commitment for Title Insurance (the "Title Committnent") for the Property, issued by Title Company. TUe Title Commit�nent shall set forth the state of title to the Property, including a list of liens, moi�tgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, rmineral, ar otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of f�rst refusal, restrictive covenants, exceptions, easements (temporary ax permanent), xights-of-way, encroacl�tneuts, or any other outstanding elaims, interests, estates or equities of any nature (each af which are referred to herein as an "Exception"). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Biryex's sole cost and expense, true and correct copies of all instruments that cxeate or evidenee Exeeptions (the "Exception Documents"), including those described in the Title Commitanent as exceptions to which the conveyance will b� subject and/or which are required to be released or cured at or przor to Closing. 3.02 Surwey. Within thirty (30) calendar days after t�e Effective Date, Seller shall cause to be prepared at Buyer's expense, a current on the ground survey of the Property (the "Survey"). The contezits of the Survey shall be prepared by a sulveyor selected by Buyer and shall include the matters prescribed by Buyer, which may include but noi be limited to, a depiction of the locatian of all roads, st�eets, easements and righis of way, both on and adjoining t?�e Property, water courses, 100 year:� flood plain, fences and improvements and structures of any kind. The 5urvey shall describe the size of the Propet�y, in acres, and contain a metes and bounds description thereof. Seller shall furnish or cause to be furnished any affidavits, certificates, assuxances, and/or resolutions as reyuix•ed by the Title Company z� order to amend the survey exception as required by Sectfon 3.05 below, The description of the Properry as set forth in fihe Survey, at the Buyer's election, shall be used to describe the Property in the dee to convey the Property to Buyer ar�d shall be the descriptaon �Set o t Title P icy �`°� �"�: �,��, �� `�� .- 9� J�� /�° 3.03 J[�eview of T�1e Co�umitmenf, Survey and � eg�t'ou Documents. Buyer shall have a period of '��5°) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exceptioa Documents, in which to give written. notice to S�ller, specifyiug Buyer's objectians io one or more of the items ("Objections"), if any. All items set forth in ihe Schedule C of Contract of Sale the Title Commitment, and all other items set foi�ih in the Title Commitment which are requixed to be released or otherwise satisfied at or prior to Closzng, shall be deejned to be Objections without any action by Buyer. 3.04 �eller's �blagatiou to Cure; Buyer's Right to '1'exaninate. The Seller shall, within twenty (20) calendar days after Seller is pxovided notice of Objections, either satisfy the Objections at Seller's sole cost and expense or pron�ptty notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. Nofwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or E�ceptions that have been valuntarily placed on or against the Property by Seller afte:r the Effective Date. If Seller fails or refuses to satisfy any Objections that Selle�� is not obligated ta cure within the allowed iwenty (20) calendar day period, and if Buye�• does not agree in vt�itin.g to an extension of that period, said extension to not exceed an additional thirty (3Q) calendar days, then Buyer has tl�e option of either: (a} waiving the unsatisfied Objectians by, and only by, notice in writing to Seller prior to Closing, in which event those O�ijections shall become Permitted Exceptions (herein so called), or (b) ternninating this Contract by notice iz� writing prior to Closing and receiving back the Eaxnest Motiey, in which latter event Se11er and Buyer shall k�ave no further obligations, oize to the other, with respect to the subject matter of this Contract. 3.05 'Ti41e Policy. At Closing, Scller, at Buyer's sole cost and expense, shall cause a siandard Texas Owner's Policy o� Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the Title Coinpany, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptians, The Title Policy may contain only the Perrnitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended ot deleted as follows: (a) survey exception must be amended if required by Buyer to tead "shortages in area" only (although Schedule C of the Title Commitrnent may con.dition amendinent on the presentation of an acceptable si�rvey and payment, to be bol�n� solely by Buyer, of any required additiona] premium); (b) na exception will be perrraitted for "visible and apparent easemexits" or words ta that effect (although reference may be made to any specific easeinent or use shown on the Su�vey, if a Permitted Exception); (e) no exception will be permittecl for "rights of parties in possession"; (d) no liens will be shown on Schcdule B. Notwithstanding the enumeration of the following exceptions, an�endnnents and/or Contract of Sale deletions, Buyer may object to any Excepti�n it deems material, in its solc discretion, f ��iRTICI,E IV .� �f / 'fi- '� � `.� �=� I+EA�II3ILITY REVIE�V FERIOI) � � f � � � �� ' /� /6 �� 4.01 Rev�e�v 1'�r�ocl. Any term or provisian of this ni�act notvvithstanding, the obligations oF Buyer specified in this Contract �e wholly conditioned an Buyer's having determiz�ed, in Buyer's sole and absoluta discretion, du ing the period coinmencing with the Effective Date of this Contract and ending �. �- �( calendar days thereafter (the "Absolute Review Period"), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desuable, including but not limited to studies or inspections to determine the existence of any environmental hazaxds or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyex's purposes. Buyer is granted the right to conduct ez�.gineerit�.g studies of the Property, and to canduct a physical inspectian af the Property, including inspections that invade the surface and stXbsurface of the Property. If Buyer determines, in. its sole judgment, that the Propei�ty is not suitable, for any reason, for Bt�yer's intended use or purpose, the Buyer may terminate this Contract by writtez� notice to the Seller, as soon as reasonably practicable, but in any event prior to the expixation of the Absolute Review Period, in which case the Earnest Mouey will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to texzninate this Confract pursuax�.t to the terms of this Articte �VV, Seetion 4.01, Buyer will provide to Seller copies of (i) any and all non-confidential and non- privileged reports and studies obtain:ed by Buyer during the Absolute Review Period; and (ii) the Survey. Al�TICLE V ItEPRESENTA'T'IOI�TS, �ARRAN'I'I�S, COVEl�TAI�I'I'S AJ.eiA � AGREENI�l�iTS 5.01 Representations and Warranties of �eller. To induce Buyer to enter into this � Contract and consummate the sale and purchase of the Property in accoxdance with the � terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective � Date and as of the Closing Date, except where specific reference is rnade to another date, ; that: i (a) The descriptive infor�nation concerning ihe Propea�ty set forth in thxs Contract is cotnplete, accurate, true and co�rect. (b) There are no adverse ar other parties in possession of the Property ox any part thereof, and no party has been granted any license, lease or other right related to the use ox possession of the Property, or ai�y part thereof, except those described in the Leases, as de�ned in �irticle iT, Section 5.02(a). (c) The Seller has good and indefeasible fee sitnple title to the Fraperty, subject only to the Pernlitted Exceptions. Contract of Sale (d) The Seller has the full right, power, and authority to sell and convey the Propei�ty as provided in this Contract and to carry out Seller's obligations hereunder. (e) The Seller has not receiveci notice of, and has no oth�r knowledge or information o�, any pending or threatened judicial or administrative action, or any action pencling or threatened by adjacent landowners or other persons against or affecting the Pxoperty. (f� The Seller has disclosed to Buyer in wriiing of any aud all facts and cireumstanees relating to the physical condition of the Property that may materially and adversely affect the Property and operaiion or intended operation thereof, or any portion thereof, of which Seller has l�owledge. (�) The Seller has paid all real esfate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related fo the Property, or will be due as of the Closing, and the Property will be subject to no such liens, �NIT/,�� (1a} Seller has not contracted or entered into atiy agreement with any real estate broker, agent, imder, or any other party in connection with this transaction or ta�en any action which would result in any real estate broker coznmissions or finder's fee or other fees payable to any other party with respect to the .� transactions contemplated by this Contract� � �'�¢ ��,� ��'�,�' � � �� ' � ��.. � ��f� � � L �.`� ��% � � �; ! ��U— �" � / �¢ " �` � 1 , �� .� '��-� �r� t� l�;�r�'�� .a�"� ��c`��;��-� (i) �o tbe best of Seller's knowledge, there h�s �iot o�ur�•e�d ��e disposal or releas�° of any Hazardous �ubstance to, oi� or from the Property. �� e� j, » As used in this Contraet, "Hazardous Substance rraeans and mcludes all hazardous and toxic substances, waste or materials, chemicals, and any pollutant or contaminant, includin.g without limitation, PCB's, asbestos, asbestos- containing material, petroleum products and xaw materials, that are included under or regulated by any Environmental Law or that would or may pose a health, safety or environmental hazard, As used in this Contract, `Bnvironmental Law" means and ancludes all federal, state, and local statutes, ordinavices, regulalions and niles presently in force or hereafter enacted relating to environmental quality, contamination, and clean-up of Hazardous Substances, including without limitation, the Comprehensive Environmental Respanse, Compensation and Liability Act (42 U.S.C. 9601, �t seq,), as amended by the Superfund Amendments and Reauthorizat�on Act of 1986, the Resource Canseiwation and Recovery Act (42 U.S.C. 6901, et seq.), as amended, Toxic Substance Control Act, 15 U.S.C. 26Q1, et seq,, and state superlien and environmen�al clean�up statutes and all rules and regulations prese�itly or hereafter pramulgated under or related to said statutes, as amended, Contract of Sale °`�1) , as ' ' 1 ee ' :fl� f �j; �i�i��e .e�pii�ec� c�r,� other�ise,�ie��at��-a�el; - ' ' �-i�ieRelnc�iQ��c�ir��c�, a � 13Y'rr�g�-��y—pur-�ua�t b ' �� _s�-�� /6 f �- (k) The Seller is nat a"1'oreign person" as def ed in Section 1445 of the I�ternal Revenue Code of 1986, as amended. {I) Seller represents and warrants to Buyer that he is a single person, 5.02 Coveuauts and Agreements of Sell�r. Seller covenaa�.ts and agrees with Buye�• as £ollows: ' (a} Unless stated otherwise, within ten (10) calendar days after the EfFective Date, Seller, at Seller's sole cost and expense, shall deliver to Buyer, with respect to the Property, true, correct, and complete copies of the following: (i) All Iease agreements andlox occupancy agreements and/or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereo fl relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and a�nendments thereto (the "Leases"). (ii) All environmental audits, soil tests and engineering and feasibility reports, including any aud all madificatioiis, supplements and amendments thereto, with respect to the Property that Seller possesses or has the right to receive, {b) From the Effective Date turtil the date of Closing or earlier termination of this Contracf, Seller shall: (i) Not enter into any wxitten or oral contract, lease, easement or rigllt of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Propei�ty that will not be fully performed �n or before the Closing or would be binding an Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing eoncerning or affecting the Property. (iii) Not take, or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreem.ents of Seller. (iv) Not sell, assign, lease or convey any right, tiile or inferest whatsoever in ar to the Property, or create, grai�.t or permit to be attached or pexfected, any Contract of Sale lien, enculnUrance, or charge thereon. (c) Seller shall indemtufy and hold Buyer harznless, to the extent pernnitted by law, �xom all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resultulg from labor or materials furnished to the Praperty under any written or oral contracts arising or entered inta prior to Closing. 5.03 Surwival Seyond Closing. Notwithstanding anything to the contrary cantained in this Contract, the representations, warranties, covenants and agreements of Seller contained in this Contract shall survive the Closing, and shall not, in any circiunstance, be tnerg�d with the Special Wai�anty Deed, as described in Article VII, Sec�ion 7.02(a). AIZTICLE VI C01�1DITIOI�Ta P1t�CEI?ENT 'I'O PERFORIVIANCE 6.01 Pet�forma�ace of �eller's Obligations. Buyer is not obligated to perfor;m under this Con�ract Yuiless, within the designated time periods, all of the following shall have occurred: (a) Seller has performed, fui�.ished, or caused to be furnished to Buyer all items required to be so performed ox fiunisl�ed under other sections of this Contract; and (b) Seller cures or Buyer waives in writing, within the time periods specified in 1�rtiele III, all of Buyer's objections made in accordance with Artiele III. 6.02 Breach of �eller's Igepresentatio�es, Warr�ties, Covee�anis and Agree�e�ats. Buyer is not obligated to perform under this Contract tmless all represez�tatioras, warranties, covenants and agxeements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except whexe specific reference is made to another date. 6.03 Adverse Change. Buyer is not obligated to perform under this Contract, if on the date of Closing, any portion of the Property has been condemned by an entity other than Buyer, or is the subject of condemnation, eminent domain, or other material proceeding initiated by an entity other than Buyer, ox• ihe Pr�perty, or any pai�t t�iereof, has been materially or adversely impaired in any mannex. 6.04 iZeview Period. Buyer is not obligated to perforn� under this Contract if Buyer delivers notice to Se11er pursuant to Article Ii�, �ection 4.01 that Buyer has determined that the Property is unsuitable to or for Buyer's purposes, 6.05 Buyer's Right to �'Vaive Conciitions Precede�i. Notwithstanding anything contained in this Cont�act to the contrary, Buyer may, at Buyer's o�tioii, elect to waive any of the conditions pxecedent to the performance of Buyer's obli�ations under this Co�tract by giving to the Sellex, at any time prior to Closing, a writtcn waiver specifying the waived condition precedent. Contract of Sale 6A6 Buycr's �'ermination if Conditions ]Px�ecedeni I�o4 S�iisfied vr �'aaved. If any of the conditions precedent to the performance of Buyer's obligations under tbis Contract have tiot been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyar's termination, the Eatnest Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written �equest fiom Buyer, pxomptly issue the insEructions necessary to instluct the Title Company to return to Buyer the Earnest Money and, thereafter, except as otherwise provided in this Contract, Buyer and Seller shall have no fiu�ther obligations under this Contract, one to the other. -i - �, 7.01 Date and P'laee of Closing. The Closing (hezein so called) shall talce place in the offices of the Title Corr�pany and shall be aceomplished through an escrow to be established with tk�e Title Coznpany, as escrowee. The Closing Date (herein. sometirnes called), shall be � � � a��ri�� , unless otherwise mutually agreed upon by Buyer and Seller. ��,� �f, ��, ��- �' �� r . R .✓ �: ..° i J"1 � (�i � 6,„� d 7.02 Items ia be Delivered a� the Closaeag. ,� �"�'..� �-�� ' � ��` .�� (a) �eller. At the Closing, Seller shall deliver or cause to be delivered to Buyer ox , �I�> O�.- the Title Campany, at the expense of the party designated herein, the follawing items: (i) The Title Policy, in the fornn specified in Artiele III, Section 3.05; (ii) The Special Warranty Deed, substantially in the form as attached hereto as Exhibit "B", subje�t only to ihe Permitted Exceptions, if any, duly executed by Seller and acknowledged; (iii) Other items reasonably requested by the Title Compan�y as administrative requir�ements for consummatin� the Closing. (b) Buve�. A.t the Closing, Brzyer shall deliver to Seller or the Title Company, the following items: (i) The sum xeqitired by Article II, Section 2.01, less the Earnest Money and interest earned thereon, in the form of a checic or cashier's check or other immediately available funcis; (ii) Other items reasonably requested by the Title Compaz�y as administrative requirements for consumnnating th� �losing. 7.03 Acijustinents ai Closing. Notwiihstanding anything to the contrary contained in Cont��act of Sale this Contract and withotxt limiting tlie general application of the provisions of Sectioxi 5.03, above, the provisions of this Article VII, �ection 7A3 sha11 st�rvive the Closirng. The following itezn shall be adjusted or prorated between Seller and Buyer with respect to the Property: (a) Ad valorem taxes relating to the Prop�rty �'or the ealendar year in whieh the Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for tbe calendar year in which the Closing shall occur is not kuow�:� as of the Closing Date, the proration at Closzng shall be based on the atnount of taxes due and payable with respect to the Pro�erty for the precedir�g calendar year. As soon as the amoui�t of taxes levied against the Proparty for the calendar yea�' ui which Closing shall occu�• is known, Seller and Buyer s1ia11 readjust in cash the amount of taxes to be paid by each party witli the result that Seller shall pay for those t�es attributable to the period of time prior to the Closing Date (including, but not liinited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the Closing Date} �nd Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. 7.04 Possession at Closi��g. Possession of the Pxoperty sha�l be delivcred to Buyer at Closing. 7.OS Costs of �losing. Each party is responsible for paying the legal fees of its counsel, in negotiating, preparing, and closing the transaction contemplated by this Contract. Seller is responsible for paying fees, costs and expenses identiiied herein as beitig the responsibility af Seller. Buyer is respansible for payuig fees, costs and expenses identified herein as being the responsibilxty of Buyer. If the responsibilii�� for such cosfs or expenses associated with clasing the transac�ion contcmpJ.ated by this Contract are not identified herein, such costs or expenses shall be allocated between the parties in the customary inannar for closings of real property similar to the Propei�ty in Denton County, Texas. AI��'ICY�E �III i D�FAUL'I'S A1vD REIVIEDIES � 8.01 Seller's Defaalts and �uyer's Remedies. (a} Seller's Deiaults. Seller is in default under this Contract on the occur�ence of any one or inore of the following events: (i) Any of Seller's warxanties or representations contained in this Contract are untzue on the Closing Date; or (ii) Seller fails to meet, comply with or perform axry cov�nant, agreen�ent, condition precedent ar obligation on Seller's part reqtured withui the time limits and in the manner required in this Contraet; or Coutract of Sale (ui) Seller fails to deliver at Closing, the ilems specified iri AY•ticle �IrI, Section 7.02(a) of this Contract for any reason other than a default by Buyer or termuiation of this Contract by Buyer pursuant to the terms hereof prior to Closing, (b) �uyer's Itemedies. Tf Seller is in default under this Contract, Buyer as Buyer's sole and exclusive remedies for th� d�fault, may, at Buyer's sole option, do any of the followuig: (i) TeY�minate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a xeturn of the Earnest Money, and Seller shall, p�omptly on �vritten request fiom Buyer, execute and deliver any documents necessary to eau�e the Title Company to ret�u� to Buyer the Earnest Money; (ii) Enforce specific �erformance of this Contract against Sellex, requiring Seller to eonvey the Property to Buyei subject to no liens, encumbrances, exceptions, and conditions other than ihose shown on the Title Cotxunitmeiit, whereupoz� Buyer shatl waive title objections, if any, and aecept such title without reduction i�n Purchase �'rice on account of tifile defects and sha11 be entitled to assert any rights for damages based on Seller's representations, warranties and obligations that are not waived by Buyer by its acceptance of Seller's title; and (iii) Seek other recourse or relief as may be available to Buyer at or by law, equity, con�ract or otherwise. �.�2 Buyer's Def�ul� and �eller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closi.ng, the item�s specified in Aa�ticle VII, Section 7.a2(b) of this Contract far any reason other than a default by Seller under this Contract or texmination of this Contract by Buyer pursuant to the terms }zereof prior to Closing. (b) �elle�•'s 12erna�dy. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedies for the default, may, at Seller's sole option, do either or�e of the following: (i) Terminate this Canhact by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer sha11, protnptly oil written request fram Seller, execute and delive�� any documents necessary to cause the Title Company to return to Seller the Earnest Monay; or (ii) Enforce specific pei�formanee of this Contract against Buyer. Contract of Sale Alt'�'I�'L� IX NIISC��I,I,ATe1EOU� 9.01 l�Iotice. All notices, demands, requests, and other communications required hereunder sha11 be in writing, delivered, unless expressly provided otherwise in this Contract, by telephanic facsimiie, by hand delivery or by ihuted 5tates Mail, and sha11 be deemed to be delive��ed and received, upon. the earlier to occur of (a) the date provided if �rovided by telephoiuc facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained xeceptacle for the United States Mail, registered oz cei�tii'ied, return receipt �requested, postage prepaid, addressed as follows: SELLER: Gary D is Dilla d �I � ��.,�� J� r�i�.��°i✓� , �� `��/� Telecopy Copies to: �'or Seller: Tel�copy; BUYER: City of Denton Paul Williamson Real Estate and Capital Support 901-A Texas Street Denton, Texas 76209 Telccopy: (940) 349�8951 For Buyer: Richard Casner, Deputy City Attoxney Cxty Attorney's Office 21 S E. McKinney Denton, Texas 76201 Telecopy: (940) 382-'1923 9,02 Govei�ing Y�aw ancl �euue. Tlus Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, const�ruction, enforcement and interpretation of this C�ntract. THIS CONTRACT IS PERFORIV�BLE iN, AND THE E�CLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPEC'T HERETO, SHALL LIE 1N DENTON COUNTY, TEXAS, 9.03 �niir�ty and Amendments, This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Property, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 9.04 Parties �ourad. This Contract is 6inding upon and inuxes io the benefit of Sellex and Buyer, and theix zespective successors and assigns, If requested by Buyer, Seller agrees to execute, acknowledge and record a nrxemorandum of this Contxact in the Real Conhact oiSale Property Records of Denton County, Texas, imparting notice of this Contract to the public. 9.05 ltisk o� Loss. If any danaage or destruction to the Property shall occur pxiox to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or pa��ty other than Buyer that might result in the taking of any portian of the Property, Biryer may, at Buyer's aption, do any of the following: (a) Terminate this Contract and withdraw fxam this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to Buyer; ar (b) Consummate this Coni�act, in which case Buyer, with respect to the Proper�y, shall be entitled to receive any (i) in the � case of darnage or destruction, all instu�ance pr�oceeds; and (u) in the case of eminent domain, proceeds paid for the Property related to the eminent damain pzoceedings. Buyer shall have a periocl of up to tei� (] Q) calendar days after receipt of wriiten notification from Seller on the final settlement of all condemnation proceedings or insurance claims related to damage or deshuction of any im.pxovement located on the Property, in which to make Buyer's election. In the event Buyer elects to close prior to such final settlement, then the Closing shall take place as provided in Article VII, above, and there shall be assigned by Seller to Buyer at Closing all interests of Seller in at�d to any and all insurance proceeds or condemnation awards which may re payable to Seller on account of such event. In the event Buyer elects to elose upou this Contract after final settlement, as deseribed above, Closing shall be held five (S) business days after such final settlerneni. 9.06 Fnxther Assuranees. In addition to the acts and deeds recited in this Con�ract and conternplated to be performed, executed and/or delivered by Seller and Buyer, Seller and Buyer agree td perl'orm, execute and/or deliver, or cause to be performed, executed and/or delivered at the Clasing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consununate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Co�tract and without limiting the general application of the provisions of �ectiou 5.03, above, the pzovisions of this Article iX, Seetiot� 9.OG shall survive Closing. 9.07 'Time is of the Essence, It is expressly agreed between �3uyer and Seller that time is of the essence with respect to this Contract, 9.0$ Exhibits. Tha Exhibits which axe referenced in, at�n..d attached to this Contract, are iucorpor•ated in and made a part of, this Contract for all purposes. 9.09 Dele��tion of Authority. Authority to take any actions that are to be, or may ba, taken by Buyer under tl�is Contract, including without ]imitation, adjustment of the Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of Contract of Sale Denton, Texas, to Phil Williatns, General Manager/Elect�ic Administxation of Buyer, or his designee, 9.10 Contract Execution. This Contract of Sale may be executed in any number of counterparts, all oiwhich taken together shall constitute one and the sanie agreement, ancl any of the pai�ties hereto rnay execute this Agz•eement by signing any such counierpart. 9.11 �usiness D�ys. If the Closing Date or the day of performance zequired or permitted under this Cout�act fa11s on a Saturday, Sunday or Denton County holiday, then the Clasing Date or the date of such perfarmance, as the case may be, sliall be the next following regular business day. 9.12 I�elocatio�. Relocation advisory services and relocation financial assistance, if applicable pursuan.t ta Ordinance No. 2012-073 (the "Relocation Ordinance"), shall be adnninistered as provided by the Relocation Ordznu�ce, aside and apart from the transaction contemplated by this Contract. ��LLER: � r� �i/d�c� �" /�i�� Gary Dennis Dilla��d � •. � Executed by Seller on the i? day of ��` �' �� ' �� j� ��" �`. , 2012. BUYER: . . . . .. . . .. . . . . . . O . . . . . .. BY. GEORGE (� CA BELL, CITY MA AGER � I� �Q � `� ` Executed by Buyer on the �� day of (!��%L,U' , 2012, Executed by Buyer on the day of ATTEST: JENNIFER WALTERS, CITY SECRETARY , ' ��11TIq< BY. �-.� . Couh�act of Sale 2012 ��11T1q� ��11T►q� APPROVED AS TO LEGAL FORM: ANITA BURGESS, CZTY ATTORNEY ��, �r �.�'�� BY; Contract of Sale �� 1 • '.- � a � �i ,. ��... / i ... By its execution below, Title Company acknowledges receipt of an executed copy of this Contract. Title Company agrees to comply with, and be bound by, the terms and provisions of this Cont�•act to perfortn its duties pursuai�t to the provisions of this Contract and comply with Section 6045(e) of the In#ernal Revenne Code of 1986, as atnended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: � ,� �_ j�/ � � �,� { '�'ii41r� D ..,.,., � T T f� ff �i �i � `"� , t �� - �'�f.� i �.,�.s vw� i.1.. �F ,,; ( .! E•� � �' �' �`�� ¢ �� . ; � `��`� f . � ��.�, � � Denton, Texas � ��,7 (�� Telephone: E��#$65 ,, � � :� �� /` �' Teleco �1�� C� -� ��`�`-� �� .� PY� � : Printed Name: Title: Contract receipt dat�: , 2012 Contract of Sale EXHIBIT "A" to Contract of Sale Legal Descriptian Of Property B�II�G all that certain lot, tract or parcel of land situated in the M,E.P, & P.R.R. Su��vey, Abstract Number 1475, City of Denton, Denton Cotuity, Texas, and being a pat�t of a tract of land described by deed to Gary Dennis Dillard and wife, Jaymi Chris Dillard, recorded in Volume 1188, Page 730 of the Deed Records, Denton County, Texas (D.R.D.C,T.) and being more particularly described as follows: BEGIIV�]I1�G at a 1/2 inch iron rod found for a southeast corner of said Dillaxd tract and the nartheast corner of a tract of land described by deed to Staff Realty, recorded under County Clerk's File Number 94-6845, Official Public Records, Denton County, Texas (O.P.R.D.C.T.), same point being in the west line of a tzacf of land described by decd to Joan Cohagen, Trustee of the Joan Cohagen Livi�xg Trust, recorded under Instr�iment Nutnber 2005-69429, O.P.R.D.C.T,; , T�IENCE South 89 degrees 27 minutes 42 seconds VVest, witli the north line of said Staff Realty tract for a distaz�ce of 218.�9 feet to a 1/2 inch u�on rod witli yellow cap stamped "�lrthur Suzveying Cornpany" (ASC) set fox the southwest corner of said Dillard tract and the most southerly southeast corner of a tract of land described by deed to Gerard Roland Vela and Emma Lamar Vela, recorded in Voluine 3225, Page 252, D.R.D.C.T.; TgIEIVC'E North 00 degrees 11 minutes 09 seconds West, with the east line of'said Vela tract, a distance of 456,97 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for most easterly northeast corner of said �ela tract and t�e southeast corner of a tract of land described by deed to Brian Carter and Brenda Car�tex, recarded under Instrument Nurnber 2010-121541, O.P,R.D.C.T.; T�NCE North 00 degrees 22 minutes 52 seconds West, wiEh the east line of said Carter tract, a distance of 301.55 feet to a 1/2 inch iron rod with yellow cap starnped "ASC" set for the uorthwest corner of said Dillard tract and the northeast corner of said Carter tract, same point being in t�►e south right-of-way line of McKinney Street; TI�IVCE South 72 degrees 31 minutes 21 seconds East, with the south right-of-way line of McKinney Street, a distance of 169.25 feet to a 1/2 inch iron roci found for the most northerly northeASt coi�ner of said Dillard tract and fihe northwest coxner of a tract of land described Uy deed to Bvbby R. Mitchell and Corine Mitchell, rcecorded in Volume 419, Page 22, D.R.D.C.T.; Contract of Sale THEN�E South 00 degrees 47 minutes 38 seconds West, with the west line of said Mitchell tract, a distance of 177.14 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for an inner ell corner of said Dillard tiact and the southwast corner of a tract of land described by deed to Bobby R. Mitchell and Corine Mitchell, recordeci in Volume 473, Page 673, D,R.D.C.T.; TT-�Ert�� North 89 degrees 50 ininutes 45 seconds East, with the south line of said Mitchell tract (Vol. 473, Pg. 673), a distance o� 74.79 f�et to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the most easterly northeast corner of said Dillard tract and the southeast corner of said Mitchell tract (Vol. 473, Pg. 673), same point being in the west line of said Cohagen tract; �'IiEi`TCE South O1 degrees 16 minutes 43 seconds West, with the west line of said Cohagen tract, a distance of 528.84 feet to the POII�17[' �F B�GIIVNING and containing 3.480 acres of l�nd, more or less. Coniract of Sale � 1B1 A 65D )7 La �0 Contract of Sale ♦ 1 1 1 _ ' ;� ' , � �, ', � '- � � � ' ,1 ` ' I �, . `- � ' . � ■ � ;� � , ; :� : � . . � ; . ° . , ,; . , � , • . : � . , � . � . � � . � ; � � , + � �, � . :� �: .. � �. � IC ' 1': �, . �. . _ �, . , � , �; � : � ��:��"�:l COU�ITY OF DENTOl�1 § �1OW ALL IVIElV BY T�SE PRES�NTS That Gary Dennis Dillard, a single person ( herei�a called "Grantox"), for and in consideration of the sum of TEN AND N�/100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the City of Denton, Texas, a Texas Home Rule Municipal Corporation (herein called "Gz�a�xtee"), 215 E. McKinney, Denton, Texas 76201, the reaeipt and sufficiency of which are hereUy acicuowledged aud confessed, subject to the reservations set forth below, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton Cou�iry, Texas being particularly described on Exl�ibit "A", attached hereto and made a part hereof for all purposes, ai�d being located in I Aenton County, Texas, together with any and ali �iglats ar interests af Grantor in and to � adjacent streets, alleys ar�d rights of way and together with all and singular the inr�provements and fxtures thereon and all other rights and appurtenances thereto (collectively, the "Prop�rty"). Grantor, subject to the limitation of such a•eservation made herein, reserves, for himself, his heirs, devisees, successors and assigns all ail, gas and other minerals in, on and under and that may be produced �rom the Property, Grantor, 1us heirs, devisees, Conhact of Sale successors and assigns shall not have the right to use or access the surface of the Property, in any way, nnanner ox form, in connection with or related to the reserved oil, gas, and other minerals and/or related io exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, tise or access of the surface of the Propez�ty for the location of any well or drill sites, well bores, whetk�er vertical or any deviation from vertical, water �vells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electiticity or other utility infrastructure, and/or for subjace�it or lateral support for any surface facilities or we11 bores, or any otb.er infrastructure or improveuient of any lcind or type in connection with or related to the raserved oil, gas and other minerals, andlor related fio the exploration or prod�ction of sa�ne. As used herein, the term "minerals" sha11 i�clude oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any raasonable ext�action, mining or other exploration and/or production method, operation, process ar procedure would coizstune, deplete or destroy the surface of the Property; and (ii) all substances which are at or neat the surface of the Property. The intent of the pa��ties hereto is tl�at the zneaning of the term "minerals" as utilized herein, shall be in accordance with that set forih in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980), As used herein, the term "stuf�ce of the Property" shall include the area from the surface of the eai�th to a depth of five hundred feet (500') below the surface af the earth and all areas above the surface of the eai�th. Exceptious to coiiveyauce and warranty: [Insert Pe��tnilted F�ceptions] Grantor heraby assigns, without recourse or representation, to Grantee, arny and all claims or causes of action that Grantor may have for or related to any ei�rors, omissions, defects in or injury to the Properry. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thez•eto in anywise belonging unto Grantee and G1•antee's successors Conri�act of Sale and assigias forevei; and Grantor does hereby bind Grantor and Cn�antor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Propex�ty unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfiilly claiming or to claim the s�ne or an.y part thereof when the claim is by, through, or under Grantor but not otherwise. EXECUTED the day of , 2012 Gary Dennis Dillard A��VO�'LEDGI�NT THE STATE OF § COUNTY OF § This inshumeut was ackuowledged befare me on , 2012 by Gary Dennis Dillard, Notary Public, State of Texas I My commission expires: i Upon Filing Return To: Send Tax Billing Statements To: The City of Denton-Engineering The City of Denton Attn: Paul Williamson Attn: Finance Department 90I-A Texas Stxeet 215 East McKinney Street Denton, TX 76209 Denton, Texas 76201 Contract of Sale ' EXHIBIT "A" to Special Wa�xanty Deed Legal Description Of Property BEING all that certain �ot, traci or parcel of land situated in the M.E.P. & P,R.R. Survey, Abstract Number 1475, City of Denton, Denton County, Texas, and being a part af a tract of laud described by deed to Gary Dennis Dillard and wife, Jaymi Cl�ris Dillard, recorded in Volume l 188, Page 730 of the Deed Recarcis, Denton Counfy, Texas (D,R,D,C.T.) a��d being more particularly described as follows; BEGINNII�G at a 1/2 inch iron rod found for a southeast corner of said Dillard tract and the northeast corner o:C a tract of Iand described by deed to 5taff Realty, xecorded under County Clerk's File Number 94-6845, Official Public Records, Denton County, Texas (O,P.R.D.C.T.), sarne point being in the west lzne of a tract of land described by deed to Joan Cohagen, Ti�ustee of the Joan Cohagen Living Ti-ust, recorded under Inst�ument Number 2005-69429, O.P.R,D,C.T.; T�ENC� South $9 degrees 27 minutes 42 seconds West, with the north line of said Staif Realty tract for a distance of 218.49 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur 5urveying Company" (ASC) set for the southwest corner of said Dillard tract and the most southerly southeast corner of a tract of land describeci by deed to Gerard Roland Vela and Emma Lamar Vela, recorded in Volume 3225, Page 252, D.R.D.C,T.; TI3ENCE North 00 degrees 11 minutes 09 seconds West, with tlie east line of said Vela tract, a distance of 456,97 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for inost easterly north�ast corner of said Vela tract and tlie southeast corner of a tract of land described by deed to Brian Carter and Brenda Carter, recorded under Instrument Number 2010-121541, O,P,R.D.C.T.; TI�EI�ICE Noi�th 00 de�rees 22 minutes 52 seconds West, with the east Iin.e o£ said Carter tract, a distance of 301.55 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the northwest coxner of said Dillard tract and the northeast corner of said Carter tract, same point being in the south right-of way line of McKinney Street; T�I�IrT� Soufh 72 degrees 31 minutes 21 seconds East, with the south right�of way line of McKinney Street, a distance of 169.25 feet to a 1/2 inch iron rod found for the mast northerly northeast cort�ex of said Dillard tract and the northwest corner of a traet of land described by deed to Bobby R. Mitehell and Corine Mitchell, recorded in Volume 419, Page 22, D,R.D,C.T.; Contract of Sale THENCE South 00 degrees 47 minutes 3� seconds West, with the west line of said Mitchell tract, a distance o� 177.14 fe�t to a 1/2 inch iron rod with yellaw cap stamped "ASC" set for an inner ell coxner of said Dillard tract and the southwest corner of a tract of land described by deed to $obby R. Mitchell and Corine Mitchell, recor•decl in Voltune 473, Page 673, D.R.D.C.T.; '1'I�NC� North 89 degrees SO minutes 45 seconds Easi, with the sout� line of said Mitchell tract (Val. 473, Pg. 673), a distar�.ce of 74.79 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the most easterly northeast cox�aer of said Dillard tract and the southeast corner of said Mitchell tract (Vol. 473, Pg. 673), same point bein� in the west line of said Coliagen tract; THENCE South O1 degrees 16 minutes 43 seconds West, with the west line of said Cohagen tract, a distance of 528.84 £eet to the POINT OF B�G�il�TG and containing 3.480 acres of land, more or less, Contract of Sale i � LOCATION MAP :�,— •,';., Denton Municipal Electric Proposed Acquisition Gary Dillard - P7 3.4 Acres 150 0 75 150 300 FEET %; `% b,�� i, � ,,, 1 ,; � �� i 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I ' DRAFT MINUTES PUBLIC UTILITIES BOARD October 8, 2012 After determining that a quonim of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, October 8, 2012 at 9:03 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. Present: Absent — Excused Vice Chair Billy Cheelc, Phi1 Gallivan, Barbara Russell, Leonard Herring and Li1ia Bynum Chairman Dicic Smith and Randy Robinson Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: CONSENT AGENDA: 21 3) Consider a recommendation for City Council to adopt an ordinance finding that a public use 22 and necessity exists to acquire fee simple to an approximate 3.480 acre tract located in the City 23 of Denton, Denton County, Texas, and siniated in the M.E.P. & P.R.R. Co. Survey, Abstract 24 Number 1475, City of Denton, Denton County, Texas, as more particularly described on Exhibit 25 "A", attached to the ordinance and made a part thereof, located generally along the 2500 blocic of 26 East McKinney Street, (the "Property Interests"), for the public use of expanding and improving 27 electric utilities; authorizing the City Manager or his designee to malce an offer to (1) Gary 28 Dennis Dillard (the "Owner"); (2) successors in interest to the owner to the Property Interests; or 29 (3) any other owners of the Property Interests, to purchase the Property Interests for the purchase 30 price of Three Hundred Twenty Six Thousand Two Hundred Eight Dollars and No Cents 31 ($326,208), and other consideration as prescribed in the Contract of Sale (the "Agreement"), as 32 attached to the ordinance and made a part thereof as Exhibit "B"; authorizing the expendit�ire of 33 funds therefor; and providing an effective date. (691cV Transmission Line Re-build Project). 34 35 36 37 38 A motion to approve item 3 was made by Board Member Gallivan with a second by Board Member Russell. The vote was 5-0. Adj ournment 9: 5 5 am tl�tl111"II"'�tl;^II IIu �'"h�,j!�tl;*II Iltl� ;q II'" AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 DEPARTMENT: Parlcs and Recreation Department �� ACM: John Cabrales SUBJECT Consider adoption of an ordinance of the City of Denton authorizing the Mayor to execute an Interlocal Cooperation Agreement between Denton County, Texas and the City Of Denton, Texas accepting Denton County's donation of the Waide Road Bridge and agreeing to accept financial responsibility for relocation, storage, refurbishing, and transportation expenses necessitated by this agreement and associated with the bridge; and providing for an effective date. BACKGROUND In October of this year, the Denton Commissioners' Court asked the City of Denton if it would accept the donation of the Waide Road Bridge for use at a City facility. The bridge is a locally historic bridge that is no longer needed by the County for transportation purposes. Attached for your consideration, is an interlocal agreement between Denton County and the City of Denton regarding to the County's donation and the City's acceptance of the bridge. Key elements of the contract include: • In consideration for the donation of the bridge, the City will accept responsibility for any relocation and transportation expenses. • The bridge will not be used as a vehicular traffic facility. • A historical marlcer will be placed at the relocation site, referencing the origin of the Waide Road Bridge and its bacicground. ESTIMATED SCHEDULE OF PROJECT This project is estimated to take 9-12 months to complete. FISCAL INFORMATION Staff is worlcing with several vendors to obtain estimates for moving, refurbishing, and placing this bridge. The City of Denton has identified $250,000 for use on this project. Respectfully submitted: ��'''" �''' ��`�'� Emerson Vorel, Director Parks and Recreation Department s:\lega(\our documents\ordinances\12\denton county interlocal agreement-waide road bridge.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE MAYOR TO EXECUTE AN 1NTERLOCAL COOPERATION AGREEMENT BETWEEN DENTON COUNTY, TEXAS AND THE CITY OF DENTON, TEXAS ACCEPTING DENTON COUNTY' S DONATION OF THE WAIDE ROAD BRIDGE AND AGREElNG TO ACCEPT FINANCIAL RESPONSIBILITY FOR RELOCATION, STORAGE, REFURBISHING, AND TRANSPORTATION EXPENSES NECESSITATED BY THIS AGREEMENT AND ASSOCIATED WITH THE BRIDGE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton (the "City") and Denton County (the "County") desire to enter into an Interlocal Cooperation Agreement (Interlocal Agreement) wherein the County donates and the City accepts the Waide Road Bridge; and WHEREAS, the City agrees to accept financial responsibility for relocation, storage, refurbishing, and transportation expenses necessitated by this agreement and associated with the bridge; and WHEREAS, the City Council finds that the Interlocal Agreement is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The iindings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The Mayor of the City of Denton is hereby authorized to execute the Interlocal Agreement on behalf of the City with the County. The City Manager is hereby authorized to carry out the rights and duties of the City under the Interiocal Agreement. SECTION 3, This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ATTEST: JENNIFER WALTERS, CITY SECRETARY : APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY �� r �-� , `� � , BY: F��F`�,o � t zz_. �, :� ``�,,�,.-, r�, r, day of , 2012. MARK A. BURROUGHS, MAYOR f INTERLOCAL COOPERATION AGREEMENT BETWEEN DENTON COUNTY, TEXAS, AND THE CITY OF DENTON, TEXAS THIS AGREEMENT is hereby made, entered into and executed by and between Denton County, Texas, a duly organized political subdivision of the State of Texas, hereinafter "the County," and the City of Denton, Texas, a duly organized municipality existing under the laws of the State of Texas, hereinafter "the City." The County and the City are collectively referred to herein as "the Parties." The purpose of this Agreement is for the County to donate the locally historic Waide Road Bridge, located at the intersection of Waide Road and Clear Creelc, to the City, in accordance with Texas Local Government Code § 263.152. This Agreement shall be fully executed and enforceable on the date it is signed by both of the Parties, WITNESSETH WAEREAS, the Interlocal Cooperation Act, Chapter 791 Texas Government Code, provides authorization for a local government to contract with one or more local governments to perform governmental functions and services under the terms of the Act; and and WHEREAS, the Waide Road Bridge is a locally historic bridge located in the County; WHEREAS, the Waide Road Bridge is no longer needed by the County for transportation purposes; and WHEREAS, by ratification of this Agreement, the Denton County Commissioners Court hereby declares that the Waide Road Bridge is surplus property; and WHEREAS, by ratification of this Agreement, the County will donate the Waide Road Bridge to the City to serve a public purpose; and WHEREAS, the City hereby accepts the donation of the Waide Road Bridge and the City will provide the County with adequate consideration by relieving the County of all relocation, refurbishing, storage and transportation expenses related to the donation of the Waide Road Bridge to the City. Page 1 AGREEMENT NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the Parties hereto to be by them respectively lcept and performed as hereinafter set forth, it is agreed as follows; ARTICLE I. The County hereby declares that the locally historic Waide Road Bridge (also lcnown as Waide Road at Clear Creelc Bridge) is surpius property and that competitive bidding is not required since the purchaser is another political subdivision within the County. ARTICLE II. The County hereby iinds that the donation of the Waide Road Bridge to the City serves a public purpose. ARTICLE III. The County hereby donates the Waide Road Bridge to the City. ARTICLE IV. The City hereby accepts the donation of the Waide Road Bridge. ARTICLE V. In consideration for the donation of the Waide Road Bridge to the City by the County, the City hereby agrees that the County shall have no financial responsibility for any relocation, refurbishing, storage or transportation expenses related to the donation of the Waide Road Bridge to the City. ARTICLE VI. The Waide Road Bridge shall not be used on a public road as a vehicular traffic facility and a historical marlcer is required to be placed at the relocation site, referencing the origin of the Waide Road Bridge and its bacicground. ARTICLE VII. The City understands and agrees that the City, its employees, servants, agents or representatives shall at no time represent themselves to be employees, servants, agents or representatives of the County. Page 2 ARTICLE VIII. The City agrees to and accepts full responsibility for the acts, negligence or omissions of all the City employees and agents, subcontractors or contract laborers and for those of all other persons doing worlc under a contract or agreement with the City. ARTICLE IX. This Agreement is not intended to extend the liability of the parties beyond that provided by law. Neither the County nor the City waive, nor shall be deemed to have waived, any immunity or defense that would otherwise be available to it against claims arising from third parties. ARTICLE X. This Agreement represents the entire agreement between the County and the City and this Agreement supersedes all prior negotiations, representations or agreements, either written or oral between the Parties. This Agreement may be amended only by written instrument signed by the governing bodies of both the County and the City or those authorized to sign on behalf of those governing bodies. ARTICLE XI. The validity of this Agreement and of any of its terms or provisions, as well as the rights and duties of the parties hereto, shall be governed by the laws of the State of Texas. ARTICLE XII. In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties hereto that the remaining portions shall remain valid and in full force and effect to the extent possible. ARTICLE XIII. The undersigned officer or agent of the parties hereto are the properly authorized officials who have the necessary authority to execute this agreement on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions extending said authority have been duly passed and are now in full force and effect, ARTICLE XIV. Any notices relevant to this agreement shall be directed as follows: Page 3 For the City: Honorable Marlc Burroughs, Mayor City of Denton, Texas 215 E. McKinney Street Denton, Texas 76201 Copy to: Jennifer Walters, City Secretary City of Denton, Texas 215 E. McKinney Street Denton, Texas 76201 For the County: Honorable Mary Horn Denton County Judge 110 West Hicicory Street, 2°d Floor Denton, Texas 76201 Copy to; Denton County District Attorney's Office — Civil Division 1450 East McKinney Street, Suite 3100 Denton, Texas 76209 Executed in triplicate originals this day of , 20 DENTON COUNTY, TEXAS 110 West Hicicory Denton, Texas 76201 By: Honorable Mary Horn Denton County Judge Acting on behalf and by the authority of The Commissioners Court of Denton County, Texas ATTEST: By: Denton County Clerlc APPROVED AS TO FORM: By: Assistant District Attorney Page 4 CITY OF DENTON, TEXAS 215 E. McKinney Denton, Texas 76201 By: Honorable Mark Burroughs Mayor of the City of Denton, Texas Acting on behalf and by the authority of the City of Denton, Denton County, Texas ATTEST: By: City Secretary APPROVED AS TO FORM: ,f . � t z � By. �.��, � ._� � ;.-. �.� ._� City Attorney APPROVAL OF INTERLOCAL COOPERATION AGREEMENT BETWEEN DENTON COUNTY, TEXAS, AND THE CITY OF DENTON, TEXAS Denton County, Texas, acting by and through the Denton County Commissioners Coui�t, having been advised of the donation of the Waide Road Bridge, located at the intersection of Waide Road and Clear Creelc, (also lcnown as the Waide Road at Clear Creelc Bridge) by Denton County to the City of Denton, and the acceptance of the donation of Waide Road Bridge by the City of Denton. In consideration for the donation of the Waide Road Bridge to the City of Denton by Denton County, the City of Denton agrees to bear the cost of all storage, transportation, relocation and refurbishing expenses related to the adoption of the Waide Road Bridge by the City of Denton. The Waide Road Bridge shall not be used on a public road as a vehicular traffic facility and a historical marlcer is required to be placed at the relocation site, referencing the origin of the Waide Road Bridge and its background. By vote on the date below, of the Denton County Commissioners has approved this Agreement, identified above, and authorized execution of this document by the presiding officer of the Denton County Commissioners Court. Date: By: Presiding Officer of the Denton County Commissioners Court Page 5 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET December 4, 2012 Planning & Development John Cabrales Il:,ii.,ull�llua II N�^:mu nu u�!„ �"+� SUBJECT — DCA12-0007 DDC Subchccpter 35.3.8 Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending Subchapter 35.3.8 of the Denton Development Code concerning the adoption of the vested rights determination revisions. BACKGROUND This request involves deleting and replacing the current DDC Section 35.3.8 with a new section that is more consistent with Chapter 245 of the Texas Local Government Code (TX LGC). The current langtiage in DDC Section 35.3.8 provides rights that are greater than those provided under TX LGC Chapter 245. PROPOSAL Staff recommends a rewrite of the current DDC Section 35.3.8 to ensure the new section is more consistent with state law. OPTIONS 1. Recommend approval as submitted. 2. Recommend approval with conditions. 3. Recommend denial. 4. Continue the Public Hearing. 5. Table item. RECOMMENDATION Staff recommends Approval of the Public Hearing for the proposed Code Amendment. PRIOR ACTION/REVIEW On November 14, 2012, the Planning and Zoning (P&Z) Commission recommended approval of DCA 12-0007 by a 6-0 vote. EXHIBITS L Marlced-up Draft Ordinance 2. Clean version of the Draft Ordinance PREPARED BY: ,,�� ,�,,, �� ' � �� „�° ' �"�� + n �,,.� � d� � � � Brian Locldey, AICP, CPM Interim Director, Planning & Development RESPECTFULLY SUBMITTED: � �� John Cabrales Assistant City Manager of Development Exhibit 1 Marked-up Draft Ordinance ORDINANCE 2012- AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING SUBCHAPTER 35.3.8 OF THE DENTON DEVELOPMENT CODE BY I�EI'EA.LING E�I�TING I'I��J�I�I�JN� A.NI) ��J��TIT�JTIN�'i � nrrn r�raG�h�rsrrrnnT �r nm�r�I' C�C`E TJ � FC� I' C�C`E��IN(i A,N E�I ING �E�TE G T� �LA. �; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance No. 2002-040 the City Council of the City of Denton, Texas adopted the Denton Development Code (the "Development Code"); and WHEREAS, after providing notice and after conducting a public hearing on �� Nov�inb�r 14, 2012, as required by law, the Planning and Zoning Comnussion recommended approval of certain changes to Subchapter 35.3.8 of the Denton Development Code; and WHEREAS, after providing notice and after conducting a public hearing on �� I��c�inb�r 4, 2012, as required by law, the City Council finds that the subject changes to the Development Code are consistent with the Denton Plan and are in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference as tnie. SECTION 2. Section 35.3.8 ("Local Permit Procedure") of the Denton Development Code is hereby amended by replacing it in its entirety with a new Section 35.3.8 ("Vested � Rights '"), to read as follows: 35.3.8. Vested Rights m A. Introduction and purpose. Texas Local Government Code, Chapter 245 ("chapter 245"), commonly referred to as the state's "vested rights law," provides an opportunity for persons to "freeze" or "vest" governmental regulations by filing a pernut application. Other laws, such as Texas Local Government Code, § 211.016 also provide certain vesting ��-""��°��c��d°,=�� "" �;�ll��. To: 1. Ensure that the City recognizes and protects all vested rights created by Chapter 245 and other applicable laws; 2. Ensure that all vested rights are made by the City only after the City is in receipt of all information necessary to allow the City to deternune whether vested rights are present �w� «�',°�',°� "��° � _; and 3. Provide a method of administrative review of vested rights €�� ' , � � _ � �, B. Vested rights . .. � For purposes of this Chapter, any person who believes that he has obtained a vested right under Chapter 245 or other applicable ��a�,-�-�� v�st�d ri�hts law, � ,- �',.,4 �,�..�a � ,- �a,aa�..i �.,.,, �, �,�<, „a,�..ee, � ',_ shall subnut to the Director a �ti��explaining the factual and legal bases upon which the person relies to support his contention that he has a particular vested right _and, consequently, is exempt or not subject to a particular City order, regulation, ordinance, nile, expiration date, or other properly adopted requirement oth�rwis� ��lic�bl� to d�v�lo��n��t of ��titio��r"s r��ri� (hereinafter referred to collectively as "regulations"). Th� ��titio�� sh�11 b� �cco�np��i�d bv �� tz��co��ditio��1 w��v�r of ��y st��ztory ti�n� ��riods or ti�n� ��riods �st�blish�d bv ordi��c� for r�vi�w of ��y �'il�d ��plic�tio��s which �� th� stzbj�ct of th� ��titio��. �'��,.�, ..�.-;�'a�, ^��,��^^;�.�,Th� ��titio�� shall include, at a minimum, the following: 1. The name, mailing address, phone number and fax number of the person (or the person's duly authorized agent); 2. Identification of the property for which the person claims a vested right �� ' �° e eN � ��; 3. Id��ti�'ic�tio�� of th� p�r�nit � lic�tio��s for which th� � lic��t s��ks r�li�f tz��d�r �� 4 �'��- ��°�,�� ,�" ^��, °Identification of the "project," as that term is defined in Chapter 245 at § 245.001(3) ��d th� ��r�nit ��I�lic�tio��, ��r�nit or d�v�lop�n��t �1�� ivi�� ris� to th� r�i�ct; 4�5 �'�w� ��°"�°� �-;�',�" �'�e�� °Identification of the original application for the first permit in the series of permits required for the project, as described in Chapter 245 at § 245.001(1) and § 245.002(a) and (b) ��d ��ch stzbs�c�tz��t p�r�nit �.plic�tio�� or ��r�nit co��stittzti�� th� s�ri�s of ��r�nits, b,�� of ��r�nit ��d d�t�s �'il�d or ��prov�d by th� �iiy, �Ia� , a�l �I a l''a�� , 6. A rl,�-�.a,�.l �.�<� �.F �I,a I,a<,��.�-<� �.F �I,a e-. ar��jCI�11�1�1Cc��1011 O� c�lly �X�li��?�1O11S L111CI��' th� �itv" s I��v�lop�n��t �od� or ordi��c�s to which th� ��titio��r b�li�v�s �� lic�bl� to th� �i�ct d��'i��d; 7 �'�w°- ^ ��°"'°� �;�',�^ ^'�°e�� Identification of all pertinent ��regulations in effect at the time the original application for the pernut was filed that (a) the I'�titio��r � � �f�.�_contends c��-c�4�co��trol the approval, disapproval, or conditional approval of �th� application� for a permit for which r�li�f is sotz�ht, pursuant to Chapter 245 at § 245.002(a) and (b); and g�'��- �° ��°�,�� r��,��, ^��°��, eIdentification of all � ctzrr��t City regulations that the �-��titio��r contends do not apply to the project due to the vested rights provided the person by Chapter 245 or other applicable =�� v�st�d ri�hts laws. �, � � > �� > > ' , _Global references to a particular ordinance, statute or set of criteria, may be deemed insufficient and the City may consider the request for a vested rights � °�,°��e�Ye� �'°�°�9�0e��°�°�Ye� to be incomplete and, hence, not subject to a staff determination at that time. 9. Id��ti�'ic�tio�� of �11 ctzrr��t �itv r��tzl�tio��s th�t th� ��titio��r �cc�pts �s ��lic�bl� to th� �'� C. Vested rights _ The Director shall �'irst d�t�r�ni�� wh�th�r th� ��lic�tio�� is co�n�l�t� ptzrstz��t to I�I�� s�ctio��..��. If Cn,.h .... C��c� th� �plic�tio�� h�s b�� d�t�r�ni��d or d��n�d co�npl�t�, th� I�ir�ctor sh�11 � forward the � ' � '� � � v�st�d ri�hts �t��, �� to��th�r with �th� r�c tzir�d supporting information or �'��^��°�°°,�^�;�w°, doctz�n��t�tio�� , to the City Manager and City Attorney for their respective reviews. �, , �, � � > > > � � � �, , � _ Prior to rendering his final determination, the City Manager may request a pre-deternunation conference with the person to discuss the person's vested rights c�� and to ensure that the nature of the claim is fully and completely understood by the City Manager. Th� �itv 1VI��r, ��t�r co��stalt�tio�� with th� �itv A.ttor��y, sh�11 r��d�r ��'i��l �d�ni��istr�tiv� d�t�r�ni��tio�� th�t �r��ts th� r�li�f r�c�tz�st�d i�� th� ��titio�� i�� whol� or i�� p��t, or d��i�s th� r�c�tz�st�d r�li�f i�� whol� or i�� t withi�� 30 d�vs of th� d�t� th� p�titio�� is co�n�l�t�. Th� �ity 1VI��r"s d�t�r�ni��tio�� sh�11 i��cltzd� � st�t��n��t of th� ��ttzr� ��d scop� of th� �ro��ct ��d th� r��so��s for th� d�cisio��, ��d sh�ll id��tif tl� ctzrr��t r��tzl�tio��s th�t �� I�lic�bl� to th� �ro��ct, if ��y, ��d prior �xisti�� r�tzl�tio��s th�t �� I�I�lic�bl� to th� �ro��ct, if �� - . a �� ,, � � > > � � � _. . , -, _. . , � .,; �� : ��x�� II�. Ct°i��t°i� fat° I��iclir►� P��i�iar►a Th� �itv 1VI��r, ��U �'i4�� '��,,.a� �� 4� sh�11 d�cid� th� v�st�d ri�hts ,��titio�� b�s�d tzpo�� th� followi�� f�ctors: ¢l.��Th�th�r th� �itv r�c�iv�d f��r ��otic� of th� �rol��t ��d th� ��ttzr� of th� �� sotz�ht; �2.� �Th�th�r th� ��ttzr� ��d sco�� of th� proj�ct pr�v��ts th� �ity fro�n �I�(�lyi�� o�� or �nor� ctzrr��t r��tzl�tio��s to th� �ro�os�d or p��di�� ,��lic�tio��s; ¢3.��Th�tl��r ��y _�rior ��prov�d ��lic�tio��s for th� prop��tv h�v� �xpir�d or h�v� b�� t�r�ni��t�d i�� ccord��c� with l�w� �4.��Th�th�r ��y st�ttztor, �xc��tio�� to � ri�ht �ss�rt�d ptzrstz��t to TLG� ch� t�r 245 is ��lic�bl� to o�� or �nor� ctzrr��t r��tzl�tio��s� ¢S.��Th�th�r ��y �x��n�tio�� fro�n o�� or �nor� r��tzl�tio��s tz��d�r th� IIyII�� or �ity ordi��c�s is ��lic�bl� to th� proj�ct: ��d �Th�th�r th� �roi�ct is dor�n��t. ��.Binding determination. The City Manager's final deternunation, e� e,��4 4aa�,°i�, �6e,�°��'°�� '��„e,^e' shall be immediately filed in the City's files related to the project and the determination shall be considered binding upon the City and the �-��titio��r for the duration of the project. r� .�a, .� ,°.�' a�� 4.�',°a, 4�. 4',° �a4�, ., > > r, � r, � > , , ,, � �I,° �a��,-.,4o��a, �W�*I,° �„-��om^� Th� Citv ��r"s d�cisioi� sh�11 b� d��in�d �'il�d oi� th� �'irst busii��ss d�v followii�� th� d�t� oi� which �ctioi� w�s t�1c�i� bv th� Citv 1'vl�i��.,�r. Notwithstanding the binding nature of the City �`��°�'s final deternunation� �� , the City and .�p�titio��r may, at any time, enter into an agreement that, to the extent authorized by law, modifies the final determination and the applicable regulations to be applied to the project. F+'m �ucli�i�l lt�vi�w. �hould th� ��titioi��r b� ��ri�v�d by or diss�tis�'i�d with th� d�cisioi� of th� Citv TvI��r, th� ��titioi��r in�y �ursu� �11 1��1 r�in�di�s to ��p��1 th� d�cisioi� to � court of coin��t�i�t �urisdictioi� �ursu�i�t to st�t� l�w. r „ �e� _ �r�� , ��e� ��CTIC�N 3. This ordii��c� t�1c�s r�r�c�d�i�c� ov�r ��v v�st�d ri�hts r�rovisioi� coi�t�ii��d ii� th� I��i�toi� I��v�lo�in�i�t Cod�, th� City of I��i�toi� Cod� of C�rdii��c�s or ��,y oth�r Citv ordii��i�c� �do�t�d bv th� City Coui�cil. SECTION �-4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provision of this ordinance are severable. SECTION 45. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. � SECTION 6�. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2012. MARK A. BLJRROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY I:• APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY I:• Exhibit 2 Clean Version of the Draft Ordinance ORDINANCE 2012- AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING SUBCHAPTER 35.3.8 OF THE DENTON,, DE.VELO.PMENT CODE BY REPEALING EXISTING PROVISIONS AND SUBSTITUTING PROCEDURES FOR PROCESSING AND DECIDING VESTED RIGHTS CLAIMS; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance No. 2002-040 the City Council of the City of Denton, Texas adopted the Denton.De.�elopment Code (the "Development Code"); and WHEREAS, after providing notice and after conducting a public hearing on November 14, 2012, as required by law, the Planning and Zoning Commission recommended approval of certain changes to Subchapter 35.3.8 of the Denton Development Code; and WHEREAS, after providing notice and after conducting a public hearing on December 4, 2012, as required by law, the City Council finds that the subject changes to the Development Code are consistent with the Denton Plan and are in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the..preamble. of this o.rdinance are incorporated herein by reference as true. SECTION 2. Section 35.3.8 ("Local Permit Procedure") of the Denton Development Code is hereby amended by replacing it in its entirety with a new Section 35.3.8 ("Vested Rights), to„read as follows: . 35.3.8. Vested Rights . .: _ _--_A. _Introduction and purpose. Texas Local- Government Code,=Chapter 245 ("chapter =--- - - - 245"), commonly referred to as the state's "vested rights law," provides an opportunity for persons to "freeze" or "vest" governmental regulations by filing a permit application. Other laws, such as Texas Local Government Code, § 211.016 alsa.pra�ide.,c,e�t�,i�:,�iesting. To: ..� . l. Ensure that the City recognizes and protects all vested rights created by Chapter 245 and other applicable laws; 2. Ensure that all vested rights are made by the City only after the City is in receipt of all information necessary to allow the City to determine whether vested rights are present ; and 3. Provide a method of administrative review of vested rights B. Vested rights. For purposes of this Chapter, any person who believes that he has obtained a vested right under Chapter 245 or other applicable vested rights law shall submit to the Director a petition explaining the factual and legal bases upon which the person relies to support his contention that he has a particular vested right and, consequently, is exempt or not subject to a particular City order, regulation, ordinance, rule, expiration date, or other properly adopted requirement otherwise applicable to development of petitioner's property (hereinafter referred to collectively as "regulations"). The petition shall be accompanied by an unconditional waiver of any statutory time periods or time periods established by ordinance for review of any filed applications which are the subject of the petition. The petition shall include, at a minimum, the following: The name, mailing address, phone number and fax number of the person (or the person's duly authorized agent); 2. Identiiication of the property for which the person claims a vested right; 3. Identification of the permit applications for which the applicant seeks relief under this Ordinance; 4. Identification of the "project," as that term is defined in Chapter 245 at § 245.001(3) and the permit application, permit or development plan giving rise to the project; 5. Identification of the original application for the first permit in the series of permits required for the project, as described in 'Chapter 245 °ai' §'"245:001(1')' and § 245,002(a) and (b) and each subsequent permit application or permit constituting the series of permits, by type of permit and dates filed or approved by the City; --- _ _ ___ __ 6. Identification of any exemptions under the City's Development Code or ordinances to which the petitioner believes are applicable to the project defined; 7. Identification of all pertinent City regulations in effect at the time the original application for the permit was filed that (a) the Petitioner .contends control the approval, disapproval, or conditional approval of the application(s) for a permit for which relief is sought, pursuant to Chapter 245 at § 245.002(a) and (b); and 8. Identification of all current City regulations that the petitioner contends do not apply to the project due to the vested rights provided the person�b� Cl�aptei^ 245 or other applicable vested rights laws. Global references to a particular ordinance, statute or set of criteria, may be deemed insufficient and the City may consider the request for a vested rights to be incomplete and, hence, not subject to a staff determination at that time. 9. Identification of all current City regulations that the petitioner accepts as applicable to the project. C. Vested rights. The Director shall first determine whether the application is complete pursuant to DDC section 35.16.8. Once the application has been determined or deemed complete, the Director shall forward the vested rights petition, together with the required supporting inforrhation or documentation, to the City Manager and City Attorney for their respective reviews. Prior to rendering his final determination, the City Manager may request a pre-determination conference with the person to discuss the person's vested rights and to. ensure that the nature of the claim is fully and completely understood by the City Manager. The City Manager, after consultation with the City Attorney, shall render a fnal administrative determination that grants the relief requested in the petition in whole or in part, or denies the requested relief in whole or in part within 30 days of the date the petition is complete. The City Manager's determination shall include a statement of the nature and scope of the project and the reasons for the decision, and shall identify those current regulations that are applicable to the project, if any, and prior existing regulations that are applicable to the project, if any. D. Criteria for Deciding Petition. The City Manager shall decide the vested rights petition based upon the following factors: 1. Whether the City received'fair notice of the project and the nature of the permit sought; 2. Whether the nature and scope of the project prevents the City from applying one -- -- "'or more current regu ations to the proposed or pending applications; — ,_ , __ 3. Whether any prior approved applications for the property have expired or have been terminated in accordance with law; 4. Whether any statutory exception to a right asserted pursuant to TLGC chapter 245 is applicable to one or more current regulations; 5. Whether any exemption from one or more regulations under the DDC or City ordinances is applicable to the project; and 6. Whether the project is dormant. E. Binding determination. The City Manager's final determination shall be immediately filed in the City's files related to the project and the determination shall be considered binding upon the City and the petitioner for the duration of the project. The City Manager's decision shall be deemed filed on the first business day following the date on which action was taken by the City .Mana�er. Notwithstanding the binding nature of the City's final determination, the City and petitioner may, at any time, enter into an agreement that, to the extent authorized by law, modifies the final determination and the applicable regulations to be applied to the project. F. Judicial Review. Should the petitioner be aggrieved by or dissatisfied with the decision of the City Manager, the petitioner may pursue all legal remedies to appeal the decision to a court of competent jurisdiction pursuant to state law. SECTION 3. This ordinance takes precedence over any vested rights provision contained in the Denton Development Code, the City of Denton Code of Ordinances or any other City ordinance adopted by the City Council. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisioris or applications, and to this end the provision of this ordinance are severable. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this .ordinance is violated shall constitute a separate and distinct offense. SECTION 6. This ordinance shall become effective fourteen (14) days from tk�e date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2012. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY : APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ...:� ,...:.Rl �4 � € BY: ' � f� > .� II:'ii.,ull�llua IIN�^:murvnuu�„II� AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 DEPARTMENT: Planning and Development ACM: John Cabrales ��, SUBJECT - CA12-0003, Teccsley T�ccct Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a Comprehensive Plan Amendment from a"Neighborhood Centers" future land use designation to a"Community Mixed Use Centers" future land use designation; on approximately 22 acres of land located on the west side of Teasley Lane (2181), between Hickory Creek Road to the north and Old Alton Road to the south, in the City of Denton, Denton County, Texas; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, severability and an effective date (CA12-0003). The Planning and Zoning Commission recommends approval (7-0). BACKGROUND The property is currently developed with a single family home and accessory agricultural uses. Prior to the city-wide rezoning in 2002, the property was zoned Agricultural District (A). The property is not platted. Prior to development and issuance of building permits, preliminary and final platting will be required. The City Manager has authorized the initiation of a Comprehensive Plan Amendment (See Exhibit 8) to change the Future Land Use from a Neighborhood Center designation to a Community Mixed Use Center designation on approximately 2.2 acres of land. In conjunction with the Comprehensive Plan Amendment, the applicant is requesting the rezoning (Z12-0007) of the subject site from a Neighborhood Residential 6(NR-6) zoning district to a Community Mixed Use General (CM-G) zoning district. The Comprehensive Plan amendment must be approved by City Council prior to consideration of the rezoning request. The parent tract includes approximately 20 acres. If the Comprehensive Plan Amendment and rezoning requests are approved, the applicant has indicated a desire to develop the subject 22 acres in a manner that is sustainable, compatible, and marketable with surrounding existing uses. The remaining 18 acres will retain its current NR-6 zoning district, and according to the applicant, will be developed with single family dwellings in the future. The applicant held a neighborhood meeting on Wednesday, September 26, 2012, at Los Toreros Mexican Restaurant. Three (3) nearby residents were in attendance. There was no opposition to the Comprehensive Plan Amendment or the rezoning request communicated at the neighborhood meeting. Agenda Information Sheet December 4, 2012 Page 2 Staff sent 13 certified notices of the public hearing to property owners within two hundred (200) feet of the subject property and 52 courtesy notices to residents/property owners within five hundred (500) feet of the property. As of this writing, staff has not received any responses from residents/property owners within 200 feet of the site. PRIOR ACTION 1. October 24, 2012 Planning and Zoning Commission OPTIONS 1. Approve as submitted. 2. Approve with conditions. 3. Deny. 4. Postpone consideration. 5. Table Item RECOMMENDATION The Planning and Zoning Commission recommends APPROUAL (7-0) of CA12-0003. The Development Review Committee (DRC) recommends APPROUAL of CA12-0003. EXHIBITS 1. Staff Report 2. Site Location/Aerial 3. Existing Zoning Map 4. Proposed Zoning Map 5. Existing Future Land Use Map 6. Proposed Future Land Use Map 7. Notification Map 8. Letter from City Manager 9. Applicant's Letter of Intent 10. Applicant's Zoning Exhibit 11. Site Photos 12. October 24, 2012 Planning and Zoning Commission Minutes 13 . Ordinance Agenda Information Sheet December 4, 2012 Page 3 Prepared by: �� , +' , r °,� Johnna M. Matthews Senior Planner Respectfully submitted: ;rv �" �"� r^ ,� �'�rc. �„�, '� �„ -�_,w� �r�" F� ��'" �'�� Brian Locldey, AICP, CPM Interim Director, Planning & Development Exhibit 1 CITY OF DENTON DEVELOPMENT REVIEW COMMITTEE STAFF REPORT P&Z Date: October 24, 2012 TYPE: Comprehensive Plan Amendment CC Date: December 4, 2012 PROJECT #: CA12-0003 Project Number: CA12-0003, Teasley Tract Request: Amend the Comprehensive Plan from a Neighborhood Center Future Land Use designation to a Community Mixed Use Center Future Land Use Designation on approximately 22 acres of land. Applicant/Property Owner: Bob Shelton Enterprises 2308 Ranch House Drive Denton, TX 76210 Location: The property is located on the west side of Teasley Lane (2181), between Hickory Creek Road to the north and Old Alton Road to the south. Size: Existing Zoning Designation(s): Proposed Zoning Designation(s): Existing Future Land Use Designation: Proposed Future Land Use Designation: Case Planner: Recommendation: 22 acres +/- Neighborhood Residential 6 (NR-6) Community Mixed Use General (CM-G) Neighborhood Centers Community Mixed Use Centers Johnna M. Matthews The Planning and Zoning Commission recommends APPROVAL of CA12-0003. The Development Review Committee (DRC) recommends APPROVAL of CA12-0003 Development Code/ Zoning Analysis The parent tract includes approximately 20 acres. The applicant is proposing to rezone approximately 2.2 acres from NR-6 to CM-G, which also requires a Comprehensive Plan amendment. The remainder 18 acres will retain its current NR-6 zoning district, and will be developed with single family dwellings in the future. The proposed CM-G zoning district is one (1) of two (2) zoning districts within the group, Community Mixed Use Centers. The purpose of Community Mixed Use Centers is to provide the necessary shopping, services, recreation, employment and institutional facilities that are required and supported by the surrounding community. The two zoning districts within the Community Mixed Use Centers include the proposed; Community Mixed Use General (CM-G) zoning district and Community Mixed Use Employment (CM-E). The tables below summarize the permitted uses and general regulations of the existing zoning district of NR-6 and the proposed zoning district of CM-G. The highlighted portions show differences between the two zoning districts: P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Linuted as defined in Section 35.5.8 and the linutations are listed below: ,- , -,. .,. -, , Agriculture P P Livestock L(7) �� Single Family Dwellings P N Accessory Dwelling Units S�P N L(1) Attached Single Family Dwellings P N Dwellings Above Businesses N P Live/Work Units L(16) P Duplexes P N Community Homes for the Disabled P P Group Homes N N L(6) & Multi-Family Dwellings N L(4) Fraternity or Sorority House N N Dormitory N N Manufactured Housing Developments SUP N • � " � • • � • " � � Home Occupation P N Sale of Products Grown on Site N N Hotels N P Motel N P Bed and Breakfast N P Retail Sales and Service N P Restaurant or Private Club N P Drive-through Facility N P Professional Services and Offices N P Quick Vehicle Servicing N P Vehicle Repair N P Auto and RV Sales N P Laundry Facilities N P Equestrian Facilities N N Indoor Recreation N P Outdoor Recreation P P Conference/Convention Center N P Major Event Entertainment N SUP Commercial Parking Lot N P Administrative or Research Facilities N P Broadcasting of Production Studio N P Sexually Oriented Business N N Temporary Uses L(38) L(38) � � " � • • � • " � � Printing/Publishing N P Bakeries N P Manufacture of Non-odoriferous Foods N N Feed Lots N N N Food Processing N N Light Manufacturing N Heavy Manufacturing N N Wholesale Sales N N Wholesale Nurseries N N Distribution Center/Warehouse, General N N Warehouse, Retail N N Self-service Storage N N Construction Material Sales N N Junk Yards and Auto Wrecking N N Wrecker Services and Impound Lots N N Kennels N N Veterinary Clinics N P Sanitary Landfills, Commercial N Incinerators, Transfer Stations N Gas Wells S�P SUP L(27) L(27) . , -�. , .,. -, Basic Utilities L(25) SUP Community Service N P Parks and Open Space P P Semi-public, halls, Clubs, Lodges SUP P Churches P P Business/Trade School N P Adult or Child Day Care SUP P Kindergarten, Elementary School SUP P Middle School N P High School N P College N P Hospital N N Elderly Housing SUP N Medical Center N P Cemeteries N N Mortuaries N P WECS (Free-standing Monopole Support Structure) S�P SUP WECS (Building-mounted) SUP SUP Limitations L(1) = Accessory dwelling units are pernutted, subject to the following additional criteria: 1. The proposal must conform with the overall maximum lot coverage and setbacic requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed 1 per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential stnicture shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1000 sq. ft. GHFA unless the lot meets the requirements of L(1).5. 4. One additional parlcing space shall be provided that conforms to the off-street parlcing provisions of this Chapter. 5. The maximum gross habitable floor area (GHFA) of the accessory residential stnicture shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than ten acres in size. An SUP is not required for such an accessory residential stnicture where the lot size is equal to or greater than ten acres. L(4) = Multi-family is pernutted only: 1. With a Specific Use Pernut; or 2. As part of a Mixed-Use Development; or 3. As part of a Master Plan Development, Existing; or 4. If the development received zoning approval allowing multi-fanuly use within one year prior to the effective date of Ordinance No. _2005-224; or 5. If allowed by a City Council approved neighborhood (small area) plan. L(6) = Permitted only on 2"a story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. L(7)= Linuted to two (2) animals on parcels one (1) to three (3) acres in size. Additional animals may be added at a rate of one per each acre over three. L(16) = Uses are limited to no more than 1,500 square feet of gross floor area per lot. L(25) = If proposed use is within 200 feet of a residential zone, approval is subject to a Specific Use Permit. L(27) = Must comply with the provisions of Subchapter 19, Gas Well Drilling and Production. L(38) = Must meet the requirements of Section 35.12.9. In the CM-G zoning district, the general regulations are less restrictive compared to the existing NR-6 zoning district's general regulations. For example, there is no nunimum front yard setbacic, side yard or nunimum side yard adj acent to a street; whereas in the NR-6 zoning district, the nunimum front yard setbacic is 10 feet; the minimum side yard is 6 feet and the nunimum side yard adj acent to a street is 10 feet. The maximum lot coverage in the NR-6 zoning district is 60% and within the CM-G zoning district is 80%. The below tables summarizes the general regulations of the existing zoning district of NR-6 and the proposed zoning district of CM-G. -� . , .,. -, Minimum lot area (square feet) 6,000 2,500 Minimum lot width 50 feet 50 feet Minimum lot depth 80 feet 50 feet Minimum front yard setback 10 feet None Minimum side yard 6 feet None Minimum side yard adjacent to a street 10 feet None Minimum rear yard 10 feet None Maximum lot coverage 60% $�o�o Minimum landscaped area 40% 20% Maximum building height 40 feet 65 feet Maximum WECS height 55 feet 75 feet The NR-6 zoning district is a Neighborhood Residential zoning district, which permits most residential uses; whereas the CM-G zoning district provides more commercial uses such as shopping, services, recreation, employment and institutional facilities designed to support the surrounding community. That being said the two zoning districts differ in some of the general regulations. For example, within the NR-6 zoning district, the maximum density (dwelling units per acre) allowed is 6 dwelling units per acre. There is no allowable density within the CM-G zoning district; however, the maximum Floor Area Ratio (FAR), which is 1.5. Section 35.3.3.B.2, Approval Criteria of a Comprehensive Plan Amendment: The application shall address the impact of the proposed change on the following: a. The Uoals and Objectives of the Denton Plan; The Denton Plan requires that distribution of various types of uses be present in well- located settings. The proposed location is an extension of the existing Community Mixed Use Activity Center to the north and will provide the shopping, services, recreation, employment, or institutional facilities that are required and will support the surrounding community. b. The F1rtlr��e Layld tl,se eler��eylt of the Deyltoyl Playl; The proposed Future Land Use designation will not have an adverse impact on the Future Land Use Element of the Denton Plan. C. 7'�/E', �JC/%C/YICE', Of %C/YIL�1lSE',S dYl /�/E', ��d1y; The balance of land uses in the City will shift from potential single-fanuly residential to a commercial use. However, because of the relative small size of the tract and the single, proposed use, the shift is negligible. c�'. Adeqlrate Plrblic Faczlity eler��eylts of the Deyltoyl Playl ayld ho�� the p��c�posed chaylge 11�d%% C/f fE',C/ /�/E', �1'OVdSdOYl Of /�/E', SE',1'VdCE',S C/YI/dCd�C//E',L� dYl /�/E', I)E',YI/()YI P%C/Yl; The availability of adequate public facilities will be thoroughly evaluated during the platting process. However, staff has indicated that existing facilities are adequate to serve the proposed development. Section 35.3.3.B.3, Further Approval Criteria: C/. 7'�/E', E',.KdS//Yl�' %C/YIL� 1lSE', �JC///E',1'YI S1l1'1'O1lYl�/Yl�' /�/E', �JI'O�JE',1'1y C/YIL� /�/E', �JOSSdh%E', d1�2�JC/C/ ()YI E',.KdSf/Yl�' OI' f1lf1l1'E', L�E',VE',%()�1�2E',Ylf OI' 1lSE',S f�'/C/f C/1'E', /YI C/CCOI'L�C/YICE', 11�df�'/ E',.KdSf/Yl�' 1'E',�'1!%C/fdOYlS; h. 7'�/E', �OSSdh%E', CI'E',C//dOYl Of C/YI dS0%C//E',L� L�dS/1'dC/ 1lYll'E',%C//E',L� /O C/L�JC/CE',YI/ C/YIL�YlE',C/1'hy L�dS/1'dC/S; C. 7'�/E', �0�1!%C//d()YI L�E',YISd1y dYl OI'L�E',1' /O fC/Cd%d/C//E', /�/E', C/L�E',C�1lC//E', �1'OVdS70Yl Of /1'C/YIS�OI'/C//d()Yl, wate�, sewe�, schools, pa�ks, public convenience and othe� p�iblic t�equi�enients; L� 7'�/E', COS/ /O /�/E', ��d1y C/YIL� O/�/E',1' �'OVE',1'Y11�2E',YI/C/% E',YI/d/dE',S /YI �1'OVd�/Yl�', d1�2�1'OV/Yl�', dYlCl'E',C/S/Yl�' OI' 1�2C/dYl/C//YI/Yl�' �1lh%dC 1!/d%d/dE',S, SC�/00%S, S/1'E',E',/S C/YIL� O/�/E',1' �1lh%dC SC/fE',1y nieasu�es; E',. 7'�/E', �JOSSd�J%E', d1�2�JC/C/ OYI /�/E', E',YIVd1'()YI1�2E',YI/, dYlC%1!�/Yl�' �J1!/ YIO/ %d1�2d/E',L� /O L�1'C//YIC/�'E',, SOd% E',1'OS7()YI GYIL�SE',L�d1�2E',YI/C//d()Yl, f�00�/Yl�', C/dl' C�1lC/%d1y GYIL�II�C//E',1' C�1lC/YI/d1y; f. Whethe� the�e a�e substantiaJ �easons why the p�ope�ty cannot be used in acco�dance ��zth exzstiylg zoyliylg o�� that p��c�posed by the F1rtlr��e Layld tl,se Map; ayld g. The action shall be niade with �easonable conside�ation of the cha�acte� of the dist�ict C/YIL� d/S�E',C1!%dC/1' S1ld/C/hd%d1y f01'�C/1'/1C1!%C/1' 1lSE',S, C/YIL�11�d/�/ C/ VdE',11� Of COYISE',1'V/Yl�' /�/E', VC/%1!E', Of, h1ld%�/Yl�'S C/YIL� E',YICO1l1'C/�lYl�' /�/E', 1�205/ C/��1'O�1'dC//E', 1lSE', Of %C/YIL� /�/1'O1l�'�/O1!/ /�/E', ��d1y. Findings of Fact 1. The site includes app�oxiniately 20 ac�es. The �equest is to �ezone app�oxiniately 2.2 ac�es fi°oni NR-6 to CM-U, to aJJow a coninie�ciaJ deveJopnient. The �en�aining 18 ac�es 11�d%% 1'E',/C//YI d/S C1l1'1'E',YI/ lv�—� Z()YI/Yl�' f01' f1!/1!1'E', L�E',VE',%()�1�2E',YI/ Of C/ S/Yl�'%E', fC/1�2d%y S1lhL�dVdS7()Yl. �. IYI C()YIJ1lYIC/d()YI 11�d/�/ /�/E', Z()YI/Yl�' C�/C/Yl�'E', 1'E',C�1lE',S/, /�/E', ��d1y l�C/YIC/�'E',1' dS 1'E',C�1lE',S//Yl�' C/ ��01�2�1'E',�/E',YISdVE', P%C/YI A1�2E',YIL�1�2E',YI/ /O C�/C/Yl�'E', /�/E', F1!/1!1'E', I,C/YIL� �lSE', L�E',Sd�YlC//d()YI fl'01�2 lvE',d�'�/h01'�/OOL� �.'E',YI/E',1' /O ��01�21�21lYldly l�d.KE',L� �lSE', AC/dVd1y �.'E',YI/E',1'. 7'�/E', ��01�2�1'E',�/E',YISdVE', P%C/YI C/1�2E',YIL�1�2E',YI/ 1�21lS/ hE', C/��1'OVE',L� hy ��d1y ��01lYICd%�1'd01' /O COYISdL�E',1'C//dOYl Of /�/E', 1'E',Z()YI/Yl�' �equest. 3. The site is c�z��ently notplatted and is developed with a single faniily honie and accesso�y ag��zctrJttr��aJ trses. -�. PI'd01' /O /�/E', �� Cd1y-11�dL�E', 1'E',Z()YI/Yl�', /�/E', S7/E', 11�C/S ZOYlE',L�A�'1'dC1!%/1!1'C/% I)dS/1'dC/ �A�. J. ��d1y-11�dL�E',, /�/E',1'E', C/1'E', C/��1'O.Kd1�2C//E',%y 1,.3��..3� C/CI'E',S %OCC//E',L� 11�d/�//YI C/YI lv�—� Z()YI/Yl�' L�dS/1'dC/ ayld a�p��oxzr��ateJy 1,1?�.1 < ac��es a��e zoyled C'M-G ��zthzyl the C'zty. �. AL�JC/CE',YI/ Z()YI/Yl�' L�dS/1'dC/S dYlC%1lL�E', lvE',d�'�/h01'�/OOL� �E',SdL�E',YI/dC/% -� �lv�--�� /O /�/E', SO1!/�/, 11�E',S/ and east; and CM-G to the no�th. %. I,C/YIL� 1lSE',S 11�d/l/lYl �'r 1�2d%E', 1'C/L�d1lS Of /l/E', Sd/E', dYlC%1lL�E', C/��1'O.Kd1�2C//E',%y IIJ C/CI'E',S; Of 11�1/dCl/ 79.1? ac��es a��e coylszde��ed ag��zclrltlr��al layld; L<7 ac��es a��e develc�ped ��zth cor��r��e��czal lrses; 3.1� ac��es a��e gove��ylr��eyltal zyl ylatlr��e; 30.87 ac��es a��e develc�ped ��zth siylgle faniily honies and 0.693 ac�es of land �en�ain undeveloped. 8. The po�tion of the site subject to the �ezoning �equest has no Envi�onnientally ,Sensitive A�ea (ESA). A field assessnient was pe�fo�nied in 2007 and �enioved the st�eani buffe� deszgylatioyl zyl the ylo��th ceylt��al a��ea of the szte. The t��eed a��ea at the solrth��est co��yle�� of the pa�ent t�act contains ESA (st�eani buffe�s). The E,SA niap also shows wate�-�elated and upland habitat E,SAs �vithin the liniits of the pa�ent t�act. Developnient is subject to Sections 3�.17.8 and 3�.17.9 of the Denton Developnient Code (DDC). �. WC//E',1' dS C/VC/d%C/h%E', hy C()YIYlE',C//Yl�' /O /�/E', E',.KdS//Yl�' 1 �—dYlC�/ S/1!h YlE',C/1' /�/E', YIOI'/�/E',C/S/ COI'YlE',1' Of, /�/E', S7/E',, C/YIL� E',.K/E',Yl�/Yl�' C/ 1 �—dYlC�/ 1�2C/dYl /�/1'O1l�'�/ C/ 1'E',C�1ldl'E',L� E',C/SE',1�2E',YI/ /O /�/E', SO1!/�/E',1'YI �JI'O�JE',1'1y %dYlE',, 11��/E',1'E', /�/dS 1�2C/dYl S�/C/%% hE', C()YIYlE',C/E',L� /O /�/E', E',.KdS//Yl�' cS'—dYlC�/ 1�2C//YI C/%()Yl�' Teasley Lane. 1�. �S�E',11�E',1' dS C/VC/d%C/h%E', VdC/ C/YI E',.KdS//Yl�' IJ—dYlC�/ �'1'C/Vd1y 1�2C/dYl /�IC// 1'1lYIS 11�d/�//YI C/YI E',C/SE',1�2E',YI/ aJoylg the solrthe��yl p��c�pe��ty Jiyle. 1 L Coo�dination with TXDOT's widening plans of Teasley Lane is �eq�ii�ed. 12. A TXDOT pe�niit is �eq�ii�ed fo� any const�uction within Teasley Lane fi°ontage. 13. Based on t�ip gene�ation calculations, a T�affic Inipact Analysis (TIA) niay be �°equi�ed. 7'�/E', 7'IA 11�d%% L�E',/E',1'1�2dYlE', df C/ 1'd�'�// C/YlL� OI' %E', f/ /1!1'YI %C/YlE', dYl/O /�/E', L�E',VE',%()�1�2E',YI/ dS 1'E',C�1ldl'E',L� 1-�. L('�IlC1!%C/1' C()YIYlE',C/dVd1y f01' /�/E', �1'()�OSE',L� C01�21�2E',1'CdC/% S7/E', dS 1'E',C�1ldl'E',L� /O /�/E', C/L�JC/CE',YI/ p�ope�ty to the no�th. 1�. The p�oposed st�eet connection to Teasley Lane is �eq�ii�ed to line up di�ectly ac�oss the st�eet fi°oni Lighthouse D�ive. 1<. Ti�af fic calr��iylg devzces a��e ��eqlrz��ed fo�� the p��c�posed st��eet. 17. Const�uction of � foot sidewalks a�e �equi�ed along Teasley Lane. 1 cS'. 7'�/E',1'E', dS Of f S7/E', L�1'C//YIC/�'E', 1'1lYlOf f fl'01�2 /�/E', YIOI'/�/ /�/C// dS 1'E',C�1ldl'E',L� /O hE', C()YIVE',yE',L� 1lYIL�E',1' f1!%%y develc�ped coylditioyls th��olrgh thzs develc�pr��eylt. 19. Elect��zc se��vzce ��zll be p��ovzded by Deyltoyl Mlrylzczpal Elect��zc (DME). ��. 7'�/E', Sd/E', dS YIO/ �%C///E',L� PI'E',%d1�2/YIC/ly GYIL� f/YIC/% �%C////Yl�' dS 1'E',C�1ldl'E',L� �1'd01' /O GYly additions� inip�ovenients to the p�ope�ty and p�io� to the issuance of building pe�niits. Development Review Committee The Development Review Comnuttee finds that the request IS CONSISTENT with the general character of the area and IS CONSISTENT with the Denton Plan, upon approval of a Comprehensive Plan amendment. Based on the findings-of-fact, the Development Review Committee (DRC) recommends APPROVAL of CA12-0003. The Planning and Zoning Comnussion recommends APPROVAL of CA12-0003 (7-0) GENERAL NOTES �rOTE: Approval of this request .�Izall rzot corzstitute a�naiver or var^iarzce fi^onz arzy applicable developnzerzt requir^enzerzt urzless specifically rzoted irz the corzditiorzs of approval arzd corz.�isterzt �rith the Derztorz Developnzerzt Code. �rOTE: All >>�r^itterz comnzerzts nzade irz the applicatiorz arzd subsequerztsubmissiorzs of'irzf'or^nzatzorz nzade durirzg the applicatiorz r^evie�� process, �rluch are orz file �nith tlie Cit�> ofDerztorz, shall be corzsidered to be birzdirzg upo�z the applicarzt, provided such conznze�zts are rzot at var^iarzce �ritli the Derztorz Plarz, Derztorz Developnze�zt Code or other developnzerzt regulatiorzs irz eff"ect at tJie tinze of'developnzerzt. Surrounding Zoning Designations and Current Land Use Activity: North�i est: North: Northeast: Commuiun� Mixed Use General Commuiun� Mixed Use General Neighborhood Residential Mixed (CM-G) (CM-G) Use (NRMU) (Insritutional Uses and Agricultural (Commercial Uses and Agiicultural (Commercial) Land) Land) West: � ' � East: Neighborhood Residential6 (NR-6) - • � � � � � ' - � - ' . Neighborhood Residential � (NR-�) (LTnde��eloped) : - . � � - � (Cluldcare Center and Single Family� � • Subdi��ision) South�i est: South: Southeast: Neighborhood Residential �(NR-�) Neighborhood Residential �(NR-�) Neighborhood Residential �(NR-�) (Single Family� and Unde��eloped (Single Family�) and Counn� Land) (Single Family� and Agriculttual Land) J'oza°ce: C.'it�� of 1�e�rtorr Creographical brfornzatiorr Jj�stenz a�rd site visit by C.'it�� staff Summary of Surrounding Zoning Designations and Current Land Use Activity: The area within '/4 mile radius of the site is comprised of approximately 115 acres. Uses within a '/4 nule radius of the site include approximately 79.12 acres of agricultural land; 1.67 acres of commercial uses; 3.15 acres are owned by the City of Denton and houses a DME substation; approximately 30.87 acres are developed with single fanuly dwellings and 0.693 acres remain undeveloped. Comprehensive Plan: The proposed rezoning request requires a comprehensive plan amendment. The site is located within a Neighborhood Center future land use designation. According to the Denton Plan, the focus of a Neighborhood Center is within the undeveloped urban and urbanized areas of the city, new neighborhoods may develop in traditional patterns. Mixed-use and nuxed housing types will be allowed to develop in a pattern of "neighborhood centers". These are oriented inwardly, focusing on the center of the neighborhood. These neighborhoods exemplify the interrelationship between quality of development, density, services and provision for adequate facilities. These developments should locate the center of the neighborhood within a five to ten minute wallcing distance from the edge of the neighborhood. The center contains uses necessary to support the surrounding neighborhood. These support services could include service oriented retail such as a small grocery, hair salon, dry cleaner or small professional offices. Residential uses may occur at higher densities with townhomes or residential flats above service-oriented uses. Open space occurs in neighborhood centers with parlc uses including central neighborhood "greens and floodplain preservation. Civic uses such as fire stations, schools, libraries, and mass transportation nodes are encouraged to be essential elements of neighborhood centers as landmarlcs that are a focus to the neighborhood. Limited multistory development in the neighborhood may be developed to incorporate shops on the ground floor and offices or residences on the upper floors. The applicant is proposing an e�tension of the Community Mixed Use Center funire land use designation from the north to approximately 2.2 acres. The remaining 18 acres included within the parent tract will retain its current Neighborhood Center future land use designation. According to the Denton Plan, the focus area of a Community Mixed Use Activity Center contains the shopping, services, recreation, employment and institutional facilities that are required and supported by the surrounding community. Thus, a community activity center could contain a supermarket, dnig store, specialty shops, service stations, one or more large places of worship, a community parlc, midsize offices, and employers, high-to-moderate density housing, and perhaps an elementary or nuddle schooL It includes vertically integrated uses where different uses may occur on each floor of the building. Zoning Allocation: The parent tract includes approximately 20 acres. However, the property subject to the rezoning request includes approximately 2.2 acres. The entire property is currently located within a Neighborhood Residential 6 zoning district. The proposed rezoning request would amend the zoning map and the site to include approximately 22 acres of CM-G zoning and the remaining 18 acres will retain its current NR-6 zoning. This rezoning request affects the zoning allocation of the NR-6 and CM-G zoning districts throughout the City. Currently, there is approximately 1,300.30 acres of land within the city that is zoned NR-6 and approximately 1,125.16 acres are currently zoned CM-G. If the applicant's request for rezoning is approved, the NR-6 allocation will decrease to approximately 1,298.1 acres and the CM-G zoning district allocation would increase to approximately 1,127.36 acres. Zoning Allocation Zoning District Current Allocation Proposed Allocation (acres) (acres) �-� 1,300.30 1,298.1 (Existing) CM-G 1,125.16 1,127.36 (Proposed) Nearest Fire and EMS Station Water and Wastewater Demand and Capacity: A. Estimated Demand: Sub'ect Pro �erty Estimated Im �act Analysis 22 acres f Proposed Demand Adequate to Serve (Yes or No Permitted Densin� N/A N/A Potable Water 269 Yes Consum rion at Sub'ect Pro �erty Estimated Im �act Analysis 22 acres f Proposed Demand Adequate to Serve (Yes or No Permitted Densin� N/A N/A eak hour (GPM) Waste�� ater Generation at peak 160 Yes hour (GPM) B. Available Capacity: The anticipated water demand for this development is approximately 269 gallons per minute (GPM) and the anticipated wastewater demand is 160 GPM. Water is available by connecting to the existing 12-inch main along Teasley Lane to the Applicant's south property line, where the Applicant shall connect this main to the existing 8-inch main along Teasley Lane. The Applicant shall also connect this main to the existing 8-inch main that crosses Teasley Lane at the Lighthouse Drive intersection. Sewer is available via an existing 15-inch gravity main that nins along the Applicant's south property line C. CIP Planned Improvements: None Roadways/Transportation Network: A. Estimated Demand: Sub'ect Pro �erty Estimated Im �act Analysis 16.� acres f Proposed Demand Adequate to Serve (Yes or No 1.5 FAR Most intense use is assumed to Peimitted Density� be 2,000 SF restaurant �� ith �'es dri` e-tluoiiali facilin• A��erage Aimual ��2 Yes Dailti� Tiips (AADT) PM Peak Hour Tiips 92 Yes B. Available Capacity: Teasley Lane is a TXDOT owned and maintained roadway. A right and left turn lane along Teasley into the property is required for this development. C. Roadway Conditions: Teasley Lane is an asphalt roadway with borrow ditches. Teasley Lane is also a TxDot owned and maintained roadway. There are plans for widening Teasley Lane from a two-lane undivided roadway to a 6-lane divided roadway. D. CIP Planned Improvements: None Environmental Conditions: The portion of the site subject to the rezoning request has no Environmentally Sensitive Area (ESA). A field assessment was performed in 2007 and removed the stream buffer designation in the north central area of the site. The treed area at the southwest corner of the parent tract contains ESA (stream buffers). Electric: Electric service will be provided by Denton Municipal Electric (DME). Exhibit 2 Site Location/Aerial Map Exhibit 3 Existing Zoning Map Exhibit 4 Proposed Zoning Map Exhibit 5 Existing Future Land Use Map Exhibit 6 Proposed Future Land Use Map Exhibit 7 Notification Map & Responses Exhibit 8 Letter from City Manager i � ��i„/,%i�� r;;;i�i��r�J� i ,, � , � � � �� d ,, . �,� , . � �W� I�.+.,�4 � �t� �h,tl� l'1 �V ��w� "�'��,: � ��w� ��• � °� �:"�w��p�k�,h�, � "��a 6��uR�� 6�"�^��rQ�d� I�ik��m� �'u�r��u�r�k��r��mM �r^��1'r �"��'�h� 1�i��i��x p'�'l��p��c�� r�� q:��^��m�� 4 �°��,��'�„ ��:�';IG�"�? h�diN��s�•Q, �u��i.��dar�u �w�"� �"u��re�r�:c��'�w�ur�s"+� ]��uu ��'au;�q��'�� ?1�� '��i��a�uu� ��l^�iu��.q �tr�• ��tq:a��,&7�:�6 m�:�g�u��u tc� i�Gm�m�ut� �e �":°�r�ynya��d�,;�u�o��: V'V��m �mi�aa:,�sr��u�iwu ��° �� y �� w��suw� �w�iw�',��„1 ��d° ��+i��u�yr �Mrm'�'r�n��,� �,a�a�s ,�`r��ui4�� ra�' l�ll�,��)�a��^ �,"�°�'��, l�� c'��p��u°�p�xi� %�ii�l� �I�i� �a:^c��o��, a�� ;��,pallAC�Gi�,�n� ��n a�m�tir��i� t�a�� &��; I�� r�i�t�� N'aa ��» �."'u�y^ �� i�,w s.°�wu°r°��1Nl��p ��`me�«uu mw;�sir�w��r ��"��9�:n�7U��: IN��w�°��t�Nrp1� �'d.1 ��+��b��va I.��rro��e�� 'u�l� 4�l`a��o� .# �e'� �.!�;� �"�orM��d��i�� s�ara �rar�a��¢��mat� �q�� n��U�un�,� t�� 8�� u��.�0.u:,��6 �uv�^w� �a� �aw�l;�r�,ii�� a�� I�a�� ,�� Q��,�� u i�mre �� ;�� urs�t ��a�;^��i�or��, �a�'�d7� �'Nu��r�� "��u��M� �".�w��u�N�i��i�� u�a��„ ��a,'uq„ ��y �r ��rk�� a� �� u��.��i�„ ��,� mr�pAi�.�p�. c��rm��N��t �� u�wo�:�a^�a�� INm„� �Wmu 1°"la��n�i�� w�ro�l' �*��u�am�y �l ".�7n��a�i��,i�:a��u mM�w�� nu��u� �q�l�;��.� ��a°rw�wY�w��w, �� c�,r�°��P��u:�: �� "��M Il,�w��w�lh��ar��^n�l ��:'`��r��, ��M��a�iM� �t�A�;�,�G..q�a^, ��: �_ti��` �tlf�m'ro��7��;�^� �aroa�� ro�u�r�m�a��q��aw�� ta�s'aava�u�a�o��.�� `uu �"a.7w��r��sws°�d��u��ra�� s��,��a�u�a��t��m� aa��d�w�x�� 44�� r��w�:°�I �a��m�aa�� m�r�`�� a:�n�;� �v�ire� C��, ��r,aro�v �:��u�a��•iaAi�,�f �ba� X,��,��r,��ill a�awa� ��^,��a�?�� WI��,� � �°��r�w�rrti��.m�p��C�rru� tc�s u�uo��TM �u �°�a��s�a:��r��urno� �''�r�o� s��°ut�ra�ww�� V�a��° �°�wu�lc��. �"�'��p��^�. - ro .-�. �� p�.�a ,,. r ,,� , �,,. n , „ r � � � �. .�-.�^ ti. �, �, �, .,�.�- � +� � �n��r��, � aw�M��lf� — — �;`i�;;�� d�a��,u��;��. ��; � �� N . �c�fi;��w��a ��awa.�c�r�a Exhibit 9 Applicant's Letter of Intent �P� a � ��a��,�s J��w ��, 2�� r�� . ��p��41 ��3t.yF �.p:�ka°�.��iP� �A;��V '[S"�' �Hl�Cki'�, � � 5 .�,. ��,�:�1A�k�� '��.N��111�a ,�.,� , �'��'��' �, ��° �i�� .�a:ia��i�, f�;� cv�,��,��, �� lt�rr� ��;r��M��, � r�c�d, :fk1�� R��,� �u�nii�;� a�)r�w�� a� ��rar�c�l� ��r� �u�i�� f l�;r�� a� "`�"��1�y^ �;��u�� R�G�m�� i��;�l� ,�aa��°.��;� 4��: �I'r��. fp'�x� �ha �,r�� p�aiwt� �"��t�m� ��se�e ��k�� r��, . ��;�a�° �� i�0�a� �nv �.�r�u�� ,k�� fx�� , �� s�� r�aua�a�a�, �� .°�-�a, e�u� c��ac�-�� i�6�b�, ��u��f�� r�� i�wpb ��a��G�„ �'�a,�I ��,;��,�:��; �pl"i�or;�lc�-��p�� ;�r�c�i��e�, ��a��d a�� s7��a'p�'�� °u�u,c�l'��; r�i�@-� �w�l�r�� :a�r�i�ur��8��rv �mic� F��•7�� 1La��:��:� C�r �r��''t��r �I��e�n6r��'�, �!��ek�.��n�a�d �.� �a� ��w�t��t}t�t� �m' �r�� i�wii� ��1�i �b� ��rl��i�i� �� -�a��'&"+��'��V ��¢'aa��„ "N�� il��ts,��t1 �'�%I� ��u�r�� r��i��Ni�ya �f:°r�-a�ur�s�� t�� r�td�°� �'�°�av�� a�tiC�� °m:^��1�� ,�i.�1ts� �u�z�l ��a� ��d�a��a.�� d�� t��y �:�ro�.�p� a�a:,� �uw�,�^,a�� °��;i �9�a��:�� k�� m��i<9��a��1 �s� �� ;��th, �."�r��r��u�a;armt��r, �t��r� �� °.��1� �m��d fr�� r��s��„ �� u�.�t�r� ��1�+ Gk��,� ��t��r�p t�c�-�il��'�� d�uu�:� ��ud� IE�e ��a��t�� u�;ti�C�° �ura�,�d��7i�� iro�� aw��-�'�r�r��, '�� `�k� ri�� ti�t�,� ��a� ��r��u� it�� tm£�' ��d ��,�p�� s�� r�ii�o��a� #.��s. �t��s� ��!� ��;��;�'! 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The Planning and Zoning Commission recommends approval (7-0). BACKGROUND The property is currently developed with a single family home and accessory agricultural uses. Prior to the city-wide rezoning in 2002, the property was zoned Agricultural District (A). The property is not platted. Prior to development and issuance of building permits, preliminary and final platting will be required. The subject property includes approximately 20 acres; of which the applicant (Shelton Development) is requesting to rezone approximately 22 acres from a Neighborhood Residential 6(NR-6) zoning district to a Community Mixed Use General (CM-G) zoning district. The applicant has indicated a desire to develop the subject 22 acres in a manner that is sustainable, compatible, and marlcetable with surrounding existing uses. The remaining 18 acres will retain its current NR-6 zoning district, and according to the applicant, will be developed with single fanlily dwellings in the future. In conjunction with this zoning change request, the City Manager has authorized the initiation of a Comprehensive Plan Amendment (CA12-0003) to change the future land use designation from a Neighborhood Centers designation to a Community Mixed Use Centers designation. The Comprehensive Plan amendment must be approved by City Council prior to consideration of the rezoning request. The applicant held a neighborhood meeting on Wednesday, September 26, 2012, at Los Toreros Mexican Restaurant. Three (3) nearby residents were in attendance. There was no opposition to the rezoning request or the comprehensive plan amendment communicated at the neighborhood meeting. Staff sent 13 certified notices of the public hearing to property owners within two hundred (200) feet of the subject property and 52 courtesy notices to residents/property owners within five Agenda Information Sheet December 4, 2012 Page 2 hundred (500) feet of the property. As of this writing, staff has not received any response from residents/property owners within 200 feet of the site. PRIOR ACTION 1. October 24, 2012 Planning and Zoning Commission. OPTIONS 1. Approve as submitted. 2. Approve with conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends APPROUAL of Z12-0007 (7-0). The Development Review Committee (DRC) recommends APPROUAL of Z12-0007. EXHIBITS 1. Staff Report 2. Site Location/Aerial Map 3. Existing Zoning Map 4. Proposed Zoning Map 5. Existing Future Land Use Map 6. Proposed Future Land Use Map 7. Notification Map 8. Applicant's Letter of Intent 9. Applicant's Zoning Exhibit 10. Site Photos 11. October 24, 2012 Planning and Zoning Commission Meeting Minutes 12. Ordinance Agenda Information Sheet December 4, 2012 Page 3 Prepared by: �IF r� r / ,� Johnna M. Matthews Senior Planner Respectfully submitted: „�� d �� u�� . �a,� � ,� �. „� �.� -�� '�� i � �r� Brian Locldey, AICP, CPM Interim Director, Planning & Development Exhibit 1 City of Denton Development Review Committee Staff Report P&Z Date: October 24, 2012 TYPE: Rezoning CC Date: December 4, 2012 PROJECT #: Z12-0007 Project Number: Z12-0007, Teasley Tract Request: Rezoning of approximately 22 acres from a Neighborhood Residential 6(NR-6) zoning district and use classification to a Community Mixed Use General (CM-G) zoning district and use classification. Applicant/Property Owner: Bob Shelton Enterprises 2308 Ranch House Drive Denton, TX 76210 Location: The property is located on the west side of Teasley (2181) Lane, between Hickory Creek Road to the north and Old Alton Road to the south. Size: Existing Zoning Designation: Proposed Zoning Designation: 22 acres +/- Neighborhood Residential 6 (NR-6) Community Mixed Use General (CM-G) Existing Future Land Use: Neighborhood Center Proposed Future Land Use: Community Mixed Use Centers Case Planner: Recommendation: Johnna M. Matthews The Planning and Zoning Commission recommends APPROVAL of Z 12-0007 (7-0). The Development Review Committee (DRC) recommends APPROVAL of Z 12-0007. Development Code/ Zoning Analysis The parent tract includes approximately 20 acres. The applicant is proposing to rezone approximately 2.2 acres from NR-6 to CM-G, which will also require a Comprehensive Plan amendment. The remainder 18 acres will retain its current NR-6 zoning district, and will be developed with single family dwellings in the future. The proposed CM-G zoning district is one (1) of two (2) zoning districts within the group, Community Mixed Use Centers. The purpose of Community Mixed Use Centers is to provide the necessary shopping, services, recreation, employment and institutional facilities that are required and supported by the surrounding community. The two zoning districts within the Community Mixed Use Centers include the proposed; Community Mixed Use General (CM-G) zoning district and Community Mixed Use Employment (CM-E). The tables below summarize the permitted uses and general regulations of the existing zoning district of NR-6 and the proposed zoning district of CM-G. The highlighted areas show the differences between the two: ,- , -,. , .,. -, Agriculture P P Livestock L(7) �� Single Family Dwellings P N Accessory Dwelling Units S�P N L(1) Attached Single Family Dwellings P N Dwellings Above Businesses N P Live/Work Units L(16) P Duplexes P N Community Homes for the Disabled P P Group Homes N N L(6) & Multi-Family Dwellings N L(4) Fraternity or Sorority House N N Dormitory N N Manufactured Housing Developments SUP N . , -�. , .,. -, Home Occupation P N Sale of Products Grown on Site N N Hotels N P Motel N P Bed and Breakfast N P Retail Sales and Service N P Restaurant or Private Club N P Drive-through Facility N P Professional Services and Offices N P Quick Vehicle Servicing N P Vehicle Repair N P Auto and RV Sales N P Laundry Facilities N P Equestrian Facilities N N Indoor Recreation N P Outdoor Recreation P P Conference/Convention Center N P Major Event Entertainment N SUP Commercial Parking Lot N P Administrative or Research Facilities N P Broadcasting of Production Studio N P Sexually Oriented Business N N Temporary Uses L(38) L(38) , , -�. , .,. -, Printing/Publishing N P Bakeries N P Manufacture of Non-odoriferous Foods N N Feed Lots N N N Food Processing N N Light Manufacturing N Heavy Manufacturing N N Wholesale Sales N N Wholesale Nurseries N N Distribution Center/Warehouse, General N N Warehouse, Retail N N Self-service Storage N N Construction Material Sales N N Junk Yards and Auto Wrecking N N Wrecker Services and Impound Lots N N Kennels N N Veterinary Clinics N P Sanitary Landfills, Commercial N Incinerators, Transfer Stations N SUP SUP Gas Wells ��27� L(27) . , -�. , .,. -, Basic Utilities L(25) SUP Community Service N P Parks and Open Space P P Semi-public, halls, Clubs, Lodges SUP P Churches P P Business/Trade School N P Adult or Child Day Care SUP P Kindergarten, Elementary School SUP P Middle School N P High School N P College N P Hospital N N Elderly Housing SUP N Medical Center N P Cemeteries N N Mortuaries N P WECS (Free-standing Monopole Support SUP Structure) SUP WECS (Building-mounted) SUP SUP P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Linuted as defined in Section 35.5.8 and the linutations are listed below: Limitations L(1) = Accessory dwelling units are pernutted, subject to the following additional criteria: 1. The proposal must conform with the overall maximum lot coverage and setbacic requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed 1 per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential stnicture shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1000 sq. ft. GHFA unless the lot meets the requirements of L(1).5. 4. One additional parlcing space shall be provided that conforms to the off-street parlcing provisions of this Chapter. 5. The maximum gross habitable floor area (GHFA) of the accessory residential stnicture shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than ten acres in size. An SUP is not required for such an accessory residential stnicture where the lot size is equal to or greater than ten acres. L(4) = Multi-family is pernutted only: 1. With a Specific Use Pernut; or 2. As part of a Mixed-Use Development; or 3. As part of a Master Plan Development, Existing; or 4. If the development received zoning approval allowing multi-fanuly use within one year prior to the effective date of Ordinance No. _2005-224; or 5. If allowed by a City Council approved neighborhood (small area) plan. L(6) = Permitted only on 2"a story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. L(7)= Linuted to two (2) animals on parcels one (1) to three (3) acres in size. Additional animals may be added at a rate of one per each acre over three. L(16) = Uses are limited to no more than 1,500 square feet of gross floor area per lot. L(25) = If proposed use is within 200 feet of a residential zone, approval is subject to a Specific Use Permit. L(27) = Must comply with the provisions of Subchapter 19, Gas Well Drilling and Production. L(38) = Must meet the requirements of Section 35.12.9. In the CM-G zoning district, the general regulations are less restrictive compared to the existing NR-6 zoning district's general regulations. For example, there is no nunimum front yard setbacic, side yard or nunimum side yard adj acent to a street; whereas in the NR-6 zoning district, the nunimum front yard setbacic is 10 feet; the minimum side yard is 6 feet and the nunimum side yard adj acent to a street is 10 feet. The maximum lot coverage in the NR-6 zoning district is 60% and within the CM-G zoning district is 80%. The below tables summarizes the general regulations of the existing zoning district of NR-6 and the proposed zoning district of CM-G. Minimum side yard adjacent to a street 10 feet None Minimum rear yard 10 feet None Maximum lot coverage 60% $�o�o Minimum landscaped area 40% 20% Maximum building height 40 feet 65 feet Maximum WECS height 55 feet 75 feet The NR-6 zoning district is a Neighborhood Residential zoning district, which permits most residential uses; whereas the CM-G zoning district provides more commercial uses such as shopping, services, recreation, employment and institutional facilities designed to support the surrounding community. That being said the two zoning districts differ in some of the general regulations. For example, within the NR-6 zoning district, the maximum density (dwelling units per acre) allowed is 6 dwelling units per acre. There is no allowable density within the CM-G zoning district; however, the maximum Floor Area Ratio (FAR), which is 1.5. Pursuant to subsection 35.3.4.B. a zoning amendment shall be issued only when the following standards are met: 1. The following rezoning conforms to the Future Land Use element of The Denton Plan. In conjunction with this rezoning request, the applicant has applied for a Comprehensive Plan amendment to amend the future land use from "Neighborhood Centers" to "Community Mixed Use Centers." The Comprehensive Plan amendment must first be approved to "Community Mixed Use Center" before the proposed zoning change request can be considered. If the Comprehensive Plan amendment is approved, the proposed zoning of CM-G will be consistent with the future land use of "Community Mixed Use Centers". 2. The proposed rezoning facilitates the adequate provisions of transportation, water, sewers, schools, parks, other public requirements and public convenience. It is anticipated with applicable improvements, when necessary, that the existing public utilities, other public requirements and public convenience are adequate to serve the proposed commercial development. Required improvements will be further evaluated at the time of platting. Water is available by connecting to the existing 12-inch stub near the applicant's northeast property corner, and extending a 12-inch main along Teasley Lane to the applicant's south property line, where the applicant shall connect this main to the existing 8-inch main along Teasley Lane. The applicant shall also connect this main to the existing 8-inch main that crosses Teasley Lane at the Lighthouse Drive intersection. Sewer is available via an existing 15-inch gravity main that nins along the applicant's south property line. The subject property fronts onto Teasley Lane; a TXDOT owned and maintained roadway. Teasley Lane is a 42-foot wide asphalt roadway with borrow ditches. Sole access for this property is off of Teasley Lane. A right and left turn lane along Teasley Lane into the property is required for this development. There are plans for widening Teasley Lane from a two-lane undivided roadway to a 6-lane divided roadway. The proposed commercial development may require a Traffic Impact Analysis (TIA), based on trip generation calculations to deternune if the increased traffic demand from the proposed commercial development will require additional public improvements and/or cost participation (e.g. signalization at impacted intersections). All proposed roadway improvements must be reviewed and approved by the city and by TXDOT prior to constniction of the proposed proj ect. The proposed commercial development will not result in any increase in school or parlc demands. Findings of Fact 1. The site includes app�oxiniately 20 ac�es. The �equest is to �ezone app�oxiniately 2.2 ac�es fi°oni NR-6 to CM-U, to aJJow a coninie�ciaJ deveJopnient. The �en�aining 18 ac�es 11�d%% 1'E',/C//YI d/S C1l1'1'E',YI/ lv�—� Z()YI/Yl�' f01' f1!/1!1'E', L�E',VE',%()�1�2E',YI/ Of C/ S/Yl�'%E', fC/1�2d%y S1lhL�dVdS7()Yl. �. IYI C()YIJ1lYIC/d()YI 11�d/�/ /�/E', Z()YI/Yl�' C�/C/Yl�'E', 1'E',C�1lE',S/, /�/E', ��d1y l�C/YIC/�'E',1' dS 1'E',C�1lE',S//Yl�' C/ ��01�2�1'E',�/E',YISdVE', P%C/YI A1�2E',YIL�1�2E',YI/ /O C�/C/Yl�'E', /�/E', F1!/1!1'E', I,C/YIL� �lSE', L�E',Sd�YlC//d()YI fl'01�2 lvE',d�'�/h01'�/OOL� �.'E',YI/E',1'S /O ��01�21�21lYldly l�d.KE',L� �lSE', ��E',YI/E',1'S. 7'�/E', ��01�2�1'E',�/E',YISdVE', P%C/YI C/1�2E',YIL�1�2E',YI/ 1�21lS/ hE', C/��1'OVE',L� hy ��d1y �.'O1lYICd% �1'd01' /O COYISdL�E',1'C//dOYl Of /�/E', 1'E',Z()YI/Yl�' �equest. 3. The site is c�z��ently notplatted and is developed with a single faniily honie and accesso�y ag��zctrJttr��aJ trses. -�. PI'd01' /O /�/E', �� Cd1y-11�dL�E', 1'E',Z()YI/Yl�', /�/E', S7/E', 11�C/S ZOYlE',L�A�'1'dC1!%/1!1'C/% I)dS/1'dC/ �A�. J. ��d1y-11�dL�E',, /�/E',1'E', C/1'E', C/��1'O.Kd1�2C//E',%y 1,.3��..3� C/CI'E',S %OCC//E',L� 11�d/�//YI C/YI lv�—� Z()YI/Yl�' L�dS/1'dC/ ayld a�p��oxzr��ateJy 1,1?�.1 < ac��es a��e zoyled C'M-G ��zthzyl the C'zty. �. AL�JC/CE',YI/ Z()YI/Yl�' L�dS/1'dC/S dYlC%1lL�E', lvE',d�'�/h01'�/OOL� �E',SdL�E',YI/dC/% -� �lv�--�� /O /�/E', SO1!/�/, 11�E',S/ and east; and CM-G to the no�th. %. I,C/YIL� 1lSE',S 11�d/l/lYl �'r 1�2d%E', 1'C/L�d1lS Of /l/E', Sd/E', dYlC%1lL�E', C/��1'O.Kd1�2C//E',%y IIJ C/CI'E',S; Of 11�1/dCl/ 79.1? ac��es a��e coylszde��ed ag��zclrltlr��al layld; L<7 ac��es a��e develc�ped ��zth cor��r��e��czal lrses; 3.1� ac��es a��e gove��ylr��eyltal zyl ylatlr��e; 30.87 ac��es a��e develc�ped ��zth siylgle faniily honies and 0.693 ac�es of land �en�ain undeveloped. 8. The po�tion of the site subject to the �ezoning �equest has no Envi�onnientally ,Sensitive A�ea (ESA). A field assessnient was pe�fo�nied in 2007 and �enioved the st�eani buffe� deszgylatioyl zyl the ylo��th ceylt��al a��ea of the szte. The t��eed a��ea at the solrth��est co��yle�� of the pa�ent t�act contains ESA (st�eani buffe�s). The E,SA niap also shows wate�-�elated and upland habitat E,SAs �vithin the liniits of the pa�ent t�act. Developnient is subject to Sections 3�.17.8 and 3�.17.9 of the Denton Developnient Code (DDC). �. WC//E',1' dS C/VC/d%C/h%E', hy C()YIYlE',C//Yl�' /O /�/E', E',.KdS//Yl�' 1 �—dYlC�/ S/1!h YlE',C/1' /�/E', YIOI'/�/E',C/S/ COI'YlE',1' Of, /�/E', S7/E',, C/YIL� E',.K/E',Yl�/Yl�' C/ 1 �—dYlC�/ 1�2C/dYl /�/1'O1l�'�/ C/ 1'E',C�1ldl'E',L� E',C/SE',1�2E',YI/ /O /�/E', SO1!/�/E',1'YI �JI'O�JE',1'1y %dYlE',, 11��/E',1'E', /�/dS 1�2C/dYl S�/C/%% hE', C()YIYlE',C/E',L� /O /�/E', E',.KdS//Yl�' cS'—dYlC�/ 1�2C//YI C/%()Yl�' Teasley Lane. 1�. �S�E',11�E',1' dS C/VC/d%C/h%E', VdC/ C/YI E',.KdS//Yl�' IJ—dYlC�/ �'1'C/Vd1y 1�2C/dYl /�IC// 1'1lYIS 11�d/�//YI C/YI E',C/SE',1�2E',YI/ aJoylg the solrthe��yl p��c�pe��ty Jiyle. 1 L Coo�dination with TXDOT's widening plans of Teasley Lane is �eq�ii�ed. 12. A TXDOT pe�niit is �eq�ii�ed fo� any const�uction within Teasley Lane �ight-of-way. 13. Based on t�ip gene�ation calculations, a T�affic Inipact Analysis (TIA) niay be �°equi�ed. 7'�/E', 7'IA 11�d%% L�E',/E',1'1�2dYlE', df C/ 1'd�'�// C/YlL� OI' %E',f/— /1!1'YI %C/YlE', dYl/O /�/E', L�E',VE',%()�1�2E',YI/ dS 1'E',C�1ldl'E',L� 1-�. L('�IlC1!%C/1' C()YIYlE',C/dVd1y f01' /�/E', �1'()�OSE',L� C01�21�2E',1'CdC/% S7/E', dS 1'E',C�1ldl'E',L� /O /�/E', C/L�JC/CE',YI/ p�ope�ty to the no�th. 1�. The p�oposed st�eet connection to Teasley Lane is �eq�ii�ed to line up di�ectly ac�oss the st�eet fi°oni Lighthouse D�ive. 1<. Ti�af fic calr��iylg devzces a��e ��eqlrz��ed fo�� the p��c�posed st��eet. 17. Const�uction of � foot sidewalks a�e �equi�ed along Teasley Lane. 1 cS'. 7'�/E',1'E', dS Of f S7/E', L�1'C//YIC/�'E', 1'1lYlOf f fl'01�2 /�/E', YIOI'/�/ /�/C// dS 1'E',C�1ldl'E',L� /O hE', C()YIVE',yE',L� 1lYIL�E',1' f1!%%y develc�ped coylditioyls th��olrgh thzs develc�pr��eylt. 19. Elect��zc se��vzce ��zll be p��ovzded by Deyltoyl Mlrylzczpal Elect��zc (DME). ��. 7'�/E', Sd/E', dS YIO/ �%C///E',L� PI'E',%d1�2/YIC/ly GYIL� f/YIC/% �%C////Yl�' dS 1'E',C�1ldl'E',L� �1'd01' /O GYly additions� inip�ovenients to the p�ope�ty and p�io� to the issuance of building pe�niits. Development Review Committee The Development Review Comnuttee finds that the request IS CONSISTENT with the general character of the area and IS CONSISTENT with the Denton Plan, upon approval of a Comprehensive Plan amendment. Based on the findings-of-fact, the Development Review Committee (DRC) recommends APPROVAL of Z12-0007. APPROVAL The Planning and Zoning Commission recommends of Z12-0007 (7-0). GENERAL NOTES �rOTE: Approval of this request .�Izall rzot corzstitute a�naiver or var^iarzce fi^onz arzy applicable developnzerzt requir^enzerzt urzless specifically rzoted irz the corzditiorzs of approval arzd corz.�isterzt �rith the Derztorz Developnzerzt Code. �rOTE: All >>�r^itterz comnzerzts nzade irz the applicatiorz arzd subsequerztsubmissiorzs of'irzf'or^nzatzorz nzade durirzg the applicatiorz r^evie�� process, �rJuch are orz file �nith tJie Cit�> ofDerztorz, shall be corzsidered to be birzdirzg upo�z the applicarzt, provided such conznze�zts are rzot at var^iarzce �ritJi the Derztorz Plarz, Derztorz Developnze�zt Code or other developnzerzt regulatiorzs irz eff"ect at tlie tinze of'developnzerzt. Surrounding Zoning Designations and Current Land Use Activity: North�i est: North: Northeast: Commuiun� Mixed Use General Commuiun� Mixed Use General Neighborhood Residential Mixed (CM-G) (CM-G) Use (NRMU) (Insritutional Uses and Agricultural (Commercial Uses and Agiicultural (Commercial) Land) Land) West: � ' � East: Neighborhood Residential6 (NR-6) - • � � � � � ' - � - ' . Neighborhood Residential � (NR-�) (LTnde��eloped) : - . � � - � (Cluldcare Center and Single Family� � • Subdi��ision) South�i est: South: Southeast: Neighborhood Residential �(NR-�) Neighborhood Residential �(NR-�) Neighborhood Residential �(NR-�) (Single Family� and Unde��eloped (Single Family�) and Counn� Land) (Single Family� and Agriculttual Land) J'oza°ce: C.'it�� of 1�e�rtorr Creographical brfornzatiorr Jj�stenz a�rd site visit by C.'it�� staff Summary of Surrounding Zoning Designations and Current Land Use Activity: The area within '/4 mile radius of the site is comprised of approximately 115 acres. Uses within a '/4 nule radius of the site include approximately 79.12 acres of agricultural land; 1.67 acres of commercial uses; 3.15 acres are owned by the City of Denton and houses a DME substation; approximately 30.87 acres are developed with single fanuly dwellings and 0.693 acres remain undeveloped. Comprehensive Plan: The proposed rezoning request requires a Comprehensive Plan Amendment. The site is located within a Neighborhood Centers future land use designation. According to the Denton Plan, the focus of a Neighborhood Center is within the undeveloped urban and urbanized areas of the city, new neighborhoods may develop in traditional patterns. Mixed-use and nuxed housing types will be allowed to develop in a pattern of "neighborhood centers". These are oriented inwardly, focusing on the center of the neighborhood. These neighborhoods exemplify the interrelationship between quality of development, density, services and provision for adequate facilities. These developments should locate the center of the neighborhood within a five to ten minute wallcing distance from the edge of the neighborhood. The center contains uses necessary to support the surrounding neighborhood. These support services could include service oriented retail such as a small grocery, hair salon, dry cleaner or small professional offices. Residential uses may occur at higher densities with townhomes or residential flats above service-oriented uses. Open space occurs in neighborhood centers with parlc uses including central neighborhood "greens and floodplain preservation. Civic uses such as fire stations, schools, libraries, and mass transportation nodes are encouraged to be essential elements of neighborhood centers as landmarlcs that are a focus to the neighborhood. Limited multistory development in the neighborhood may be developed to incorporate shops on the ground floor and offices or residences on the upper floors. The applicant is proposing an extension of the Community Mixed Use Centers future land use designation from the north to approximately 2.2 acres. The remaining 18 acres included within the parent tract will retain its current Neighborhood Centers future land use designation. According to the Denton Plan, the focus area of a Community Mixed Use Activity Center contains the shopping, services, recreation, employment and institutional facilities that are required and supported by the surrounding community. Thus, a community activity center could contain a supermarket, dnig store, specialty shops, service stations, one or more large places of worship, a community parlc, midsize offices, and employers, high-to-moderate density housing, and perhaps an elementary or nuddle schooL It includes vertically integrated uses where different uses may occur on each floor of the building. Zoning Allocation: The parent tract includes approximately 20 acres. However, the property subject to the rezoning request includes approximately 2.2 acres. The entire property is currently located within a Neighborhood Residential 6 zoning district. The proposed rezoning request would amend the zoning map and the site to include approximately 22 acres of CM-G zoning and the remaining 18 acres will retain its current NR-6 zoning. This rezoning request affects the zoning allocation of the NR-6 and CM-G zoning districts throughout the City. Currently, there is approximately 1,300.30 acres of land within the city that is zoned NR-6 and approximately 1,125.16 acres are currently zoned CM-G. If the applicant's request for rezoning is approved, the NR-6 allocation will decrease to approximately 1,298.1 acres and the CM-G zoning district allocation would increase to approximately 1,127.36 acres. Zoning Allocation Zoning District Current Allocation Proposed Allocation (acres) (acres) �-� 1,300.30 1,298.1 (Existing) CM-G 1,125.16 1,127.36 (Proposed) Nearest Fire and EMS Station Name of Station Fire/EMS � Fire Station # 6(3232 T S'oz�r^ee: ('it�> of'Deritc�ri C7IS', Fir^e Depar^tr��erit, crric�E_11S' Approgimate Distance From Sub'ect Pro �ertti Lane) 2.2 miles f Water and Wastewater Demand and Capacity: A. Estimated Demand: Sub'ect Pro �erty Estimated Im �act Analysis 22 acres f Proposed Demand Adequate to Serve (Yes or No Permitted Densin� N/A N/A Potable Water Consumprion at 269 Yes eak hour (GPM) Waste�� ater Generation at peak 160 Yes hour (GPM) B. Available Capacity: The anticipated water demand for this development is approximately 269 gallons per minute (GPM) and the anticipated wastewater demand is 160 GPM. Water is available by connecting to the existing 12-inch main along Teasley Lane to the Applicant's south property line, where the applicant shall connect this main to the existing 8-inch main along Teasley Lane. The applicant shall also connect this main to the existing 8-inch main that crosses Teasley Lane at the Lighthouse Drive intersection. Sewer is available via an existing 15-inch gravity main that nins along the Applicant's south property line C. CIP Planned Improvements: None Roadways/Transportation Network: A. Estimated Demand: Sub'ect Pro �erty Estimated Im �act Analysis 16.� acres f Proposed Demand Adequate to Serve (Yes or No) 1.5 FAR Most intense use is assumed to Peimitted Density� be 2,000 SF restaurant �� ith �'es dri` e-tluoiigli facilin• A��erage Aimual ��2 Yes Dailti� Tri s (AADT) PM Peak Hour Tiips 92 Yes B. Available Capacity: Teasley Lane is a TXDOT owned and maintained roadway. A right and left turn lane along Teasley into the property is required for this development. C. Roadway Conditions: Teasley Lane is two-lane an asphalt roadway with borrow ditches. Teasley Lane is also a TXDOT owned and maintained roadway. There are plans for widening Teasley Lane from a two-lane undivided roadway to a 6-lane divided roadway. D. CIP Planned Improvements: None Environmental Conditions: The portion of the site subject to the rezoning request has no Environmentally Sensitive Area (ESA). A field assessment was performed in 2007 and removed the stream buffer designation in the north central area of the site. The treed area at the southwest corner of the parent tract contains ESA (stream buffers). Electric: Electric service will be provided by Denton Municipal Electric (DME). Exhibit 2 Site Location/Aerial Map Exhibit 3 Existing Zoning Map Exhibit 4 Proposed Zoning Map Exhibit 5 Existing Future Land Use Map Exhibit 6 Proposed Future Land Use Map Exhibit 7 Notification Map Exhibit 8 Applicant's Letter of Intent �� 'h��n�� 4�"rc�� i�r��rr� —"�"��,�M� �� "r��t "�� I�w�� tl�;� ih� �� a'� �f"�'�;�w�� a�, ��r��a��u�,�e��^ �'��p� s��t'� ��'�°�� (,��;�� . �� '�ii�;i�uatyr �" ��a��t�a� �,�. .�'" � . "�`�n ��;�� ;�r�,� �ti� d��E�ag� �� y ir� �. �u�r�a�� I�a�i� i� �u��s�;��u�;�l�� 1��N�R �r��. �rm��bl� °�pa�� tr�a�a��a� ��ia�� ua��s. � �, ��ar��ac�� "m�d�a�, �k�-� � �r ° �� »� �� :�e�i�� hw�i�� "� � �� a�� ,, ��: ��3 ��c�� +�'. ..�,. ., : : ��i ��'��A��c�� a�� A�a�� u�tl� ��CO ��'a�� e��i g�a�C�� t��, 1:�c9��Cr��,.�a��'�9� (�� '�� sn��-��a��;y ��a��e a�� aa�l� ��r� �';'��e��. P��►p�a°t� i� ��s��i 1��+ ��°�w��i� s��.�,+��,� iFir��r� "T"��6�,� ��, � ��'��„'�„�,��',� ��k-fi; ��a;;t��' �� , �'�� a��I�»��:l�r I�a�� a��a�,t�� 3,� �a�ii'� ��.a a�� r�t�a ��i��z�i�t�� f��:i�t�� 1.� �d' meti� ��x�r �r�as� a,�it� ��:��. C.'1�A('.s� ��:�-�vartaa��;� � ��r� �r�d � �ar�� c�mr�;��ma�� . �l� e�i��t,�� sa��u�� +a;�G � �m��a��c�. ��, �ad ��:�� r�� p��,� a��'��xc��a��a d� ��a��a�d �C�i �� ir�� `�� 7,°��1�� a� � �k�,ia �a��a� s��' f�� u�aa�w� �a'��u�a� ruf":��u� ��i�� u�d `�"��De� ��» �.�� i��e ��-� t��# �;u�� b� �'��cau ��z� n��l�, �u��.� ��' �� p�p�� 1 �a��c�� d i"rr,� e� ��aa��.�� dr�� c:a� t'��arp'u ��d��-a��4�i��;�t ��a'r��aa�k�y ��r��1 a� �� ;��wt �a�� t� �� a��r��u. ' " I" w « ��, '�,��r`.��ta��wla�.��a��a� ��a�t A;n "�"��^ R�.�a��d �N, �^��k�� ar��t��+�u O ��u� ��a�� n ��k�� u�bd�a��:� �a t�a� ��;�u� �'��a�n� �� :d�� ri��a�� 1�� m�W„ ��x�m�� a �Ba� �m��h�� - ��n �m��,� ��an�r�r rix�� t�� ,� �h� r��u��iir� Exhibit 9 Applicant's Zoning Exhibit Exhibit 10 Site Photos Photo talcen at the entrance of the property (Teasley Lane) loolcing west at the existing single family home Photo talcen near the existing drive loolcing north Photo talcen near the existing drive loolcing south Photo talcen on the south side of the existing drive loolcing north Photos talcen on the south side of the existing drive loolcing north 4 Exhibit 11 October 24, 2012 Planning and Zoning Commission Meeting Minutes B'. 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'I'IWM1(i� u%�r��u.�i��t�airw� ^�V� X��rvos o��`�saB i �'�a�:b�orr �� .1C �� "�. �""��, �G �n�^� �'�N^�I � �n�aw�� 9� q,� �tit ��;�� m�� a� � ��i�r N�'+B�k�� 'I� �sKrwwr¢r�„ ��urt� I� q�ra� tla� Paa� adu�� he� ��w��r�rr�yr ��r ��G�uV�� mudi��u� tl��G��w� ��c,^��m��mr �x�°��w� �&�mw�a� n��ha�^� �w��tl �Bi��;�wv�MClr� i¢�b��1Gd^�9��r ua��ddY��U�aa��IW�'�p �N�Cx n�ami4��'reu�r� m�ul�^,H�wu��ousw�l��*„�tl �mtw��l��w.lru':��dll�a�a��tllu?tiar�� qt��'�M9v��As�r� �'e!� �r+t��Aro �k u�� p�r�,��r'��. �'Ii�R� �nC �V I�r��x FuG�ti�f��M�rrwrV F"rsrf�M��f�M�N � �n�� om�^��r ll`�m, �i %�!� l�,l�w�l'r��-�da�r��c�rro�l�kw�a��r� ��r�°;,. di�'�„�4� �.idwl9h�.M� 4 t��rd, *.�K��Rlam ��!�M #-�m�a�� loz��iroa�'��'ktµr� (^��1��. �I� � � Nk'�-`��a��+ K�r�Y��r�wl��ri ��,��k�uw�tl��p��!�M n, uau�� .:. �' �^�w-. ��6�� ' '�� a�a � �'�.�. I��IU�'"6k�� ,� f�& �ro'��u"�'�� p' " �; °�� ,N' �� y � �� ;� �� '�� '��y��"� 7u�r� � "" ,r� � IuM � � �, p� �� i i � �� a�"�;.��',"� �� ;� ��'M � �"� �� r��,rq� �,�4i�LMl1�� 4" W'�mrvm,t�liarr��ui�uruw��Gua�,��u� uM�^�sF� �mr��,�^�e�u�n� �� Ilu.ud�:9li��ndlliiu ��II II�V:�^um.m � AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 DEPARTMENT: Utilities ACM: Howard Martin, 349-8232 ��' SUBJECT Consider adoption of an ordinance finding that a public use and necessity exists to acquire through the exercise of the right of eminent domain (� a utility and slope easement encumbering 0.05 acre of real property; and (II) a temporary constniction, grading and access easement encumbering 0.08 acre of real property, for the public use of expanding and improving Bonnie Brae Street, a municipal street and roadway located in the City of Denton, Texas, generally located in the 1700 blocic of South Bonnie Brae Street, and situated in the O.S. Brewster Survey, Abstract Number 56, City of Denton, Denton County, Texas, as more particularly described in Exhibit "A" and Exhibit "B", respectively, each attached hereto and made a part hereof (collectively, the "Property Interests"); authorizing the filing and prosecution of eminent domain proceedings to acquire the Property Interests; authorizing the expenditure of funds therefore; malcing findings; providing a savings clause; and providing an effective date. (Parcels 7 and 8— Martin - Bonnie Brae Widening and Improvements project) BACKGROUND Ongoing negotiations with the affected property owner for the subject land rights necessary for the Bonnie Brae Widening and Improvements project have reached an impasse. Approval of the subject ordinance authorizes staff to acquire the land rights necessary by way of the exercise of the City's enunent domain authority. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) March 6, 2012 — Executive Session March 6, 2012 (initial offer to purchase Ordinance 2012-060) August 7, 2012 — Executive Session August 7, 2012 (final offer to purchase Ordinance 2012-168) FISCAL INFORMATION The overall Bonnie Brae Widening and Improvements project is being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRII' `08) funds and City of Denton local match funds. The overall costs for the Property Interests sought, as to be determined via eminent domain proceedings, are to be funded through a combination of these funding sources. BID INFORMATION Not applicable EXHIBITS 1. Location Map 2. Ordinance Prepared by, � � �.�� Paul Williamson, Real Estate Manager Respectfully subnutted, �� Franlc G. Payne, P.E. City Engineer �ocation Map MARTIN - P07 � Po8 EXHIBIT 1 attachment to AIS Bonnie Brae Widening and Improvements EXHIBIT 2 attachment to AIS s:Uegal\our documents\ordinances\12�ntartin condemnation ordinance-finaLdoc ORDINANCE NO. AN ORDINANCE F1NDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE THROUGH THE EXERCISE OF THE RIGHT OF EMINENT DOMAIN (I) A UTILITY AND SLOPE EASEMENT ENCUMBERING 0.05 ACRE OF REAL PROPERTY; AND (II) A TEMPORARY CONSTRUCTION, GRADING AND ACCESS EASEMENT ENCUMBERING 0.08 ACRE OF REAL PROPERTY, FOR THE PUBLIC USE OF EXPANDING AND IMPROVING BONNIE BRAE STREET, A MUNICIPAL STREET AND ROADWAY LOCATED IN THE CITY OF DENTON, TEXAS, GENERALLY LOCATED IN THE 1700 BLOCK OF SOUTH BONNIE BRAE STREET, AND SITUATED 1N THE O.S. BREWSTER SURVEY, ABSTRACT NUMBER 56, CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED 1N EXHIBIT "A" AND EXHIBIT "B", RESPECTIVELY, EACH ATTACHED HERETO AND MADE A PART HEREOF (COLLECTIVELY, THE "PROPERTY 1NTERESTS"); AUTHORIZING THE FILING AND PROSECUTION OF EMINENT DOMAIN PROCEEDINGS TO ACQUIRE THE PROPERTY 1NTERESTS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; MAKING F1NDINGS; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas (the "City") has initiated the widening and expansion of Bonnie Brae Street affecting, among other lands and interests, the Property Interests; WHEREAS, the widening and expansion of Bonnie Brae Street constitutes a valid public use of the City and its citizens; WHEREAS, the City made a written Initial Offer (herein so called) to Bettye L. Martin, the owner of the Property Interests ("Owner") on March 13, 2012; WHEREAS, the City provided to the Owner of the Property Interests at the time of presenting the Initial Offer, by certified mail, return receipt requested, all appraisal reports produced or acquired by the City relating specifically to the Owner's property prepared in the ten (10) years preceding the date of the Initial Offer; WHEREAS, the Initiai Offer made by the City to the Owner of the Property Interests did not include a confidentiality provision and further informed the Owner of the Property Interests that such Owner had the right to (i) discuss any offer or agreement regarding the City's acquisition of the Property Interests with others; or (ii) lceep the offer or agreement confidential, unless the offer or agreement would be subject to Chapter 552 of the Texas Government Code (the "Non Coniidential Notice"); WHEREAS, the City made a written Final Offer (herein so called) to the Owner of the Property Interests on August 29, 2012, said date being after the thirtieth (30th) day after the date on which the City made the Initial Offer to the Owner of the Property Interests; WHEREAS, along with such Final Offer, the Owner of the Property Interests was provided a written appraisal from a certified appraiser of the value of the Property Interests and the damages, if any, to any of the Owner's remaining property; WHEREAS, the Final Offer made to the Owner of the Property Interests was equal to or greater than the amount of the written appraisal obtained by the City; WHEREAS, the Final Offer made to the Owner of the Property Interests included (i) a copy of the written appraisal; (ii) copies of the (a) utility and slope easement; and (b) temporary construction, grading and access easement, all being the instruments proposed to convey the Property Interests sought to be acquired by the City; (iii) the Landowner's Bill of Rights statement prescribed by Section 21.0112 of the Texas Property Code; and (iv) the Non Confidential Notice; WHEREAS, the City provided the Owner of the Property Interests at least fourteen (14) days to respond to the Final Offer and the Owner of the Property Interests did not agree to the terms of the Final Offer within that period; WHEREAS, the notice for the public meeting of the City Council of the City in which this Ordinance is considered, as required by Subchapter C, Chapter 551, of the Texas Government Code, in addition to other information as required by that subchapter, expressly included the consideration by the City of Denton of the use of eminent domain to condemn the Property Interests; WHEREAS, in ordaining the matters set forth herein, the motion to pass and approve this ordinance was stated as "I move that the City of Denton, Texas authorize the use of the power of eminent domain to acquire (1) a utility and slope easement encumbering 0.05 acre of real property; and (2) a temporary construction, grading and access easement encumbering 0.08 acre of real property; generally located in the 1700 blocic of South Bonnie Brae Street, located in the O.S. Brewster Survey, Abstract 56, and being more particularly described in Exhibit "A" and Exhibit "B", respectively, to the ordinance now under consideration and on the overhead screen being now displayed to the audience, for the public use of Bonnie Brae Street improvements and expansion, a street or roadway in the City of Denton, Texas"; and WHEREAS, after due consideration of the public interests to be furthered by the public use of municipal street and roadway improvements and expansion related to Bonnie Brae Street; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Council finds that a public use and necessity exists to widen and improve Bonnie �Brae Street to serve the citizens of the City of Denton, Texas, and that the public welfare and convenience requires the acquisition of the Property Interests, and the City of Denton, Texas does hereby exercise its home-rule and statutory authority to acquire by eminent domain, (1) a utility and slope easement encumbering 0.05 acre of real property, as described in Exhibit "A", attached hereto and made a part hereof by reference; and (2) a temporary 2 construction, grading and access easement, encumbering 0.08 acre of reai property, as described in Exhibit "B", attached hereto and made a part hereof by reference. The Council hereby further iinds and determines that the acquisition of the Property Interests is for a public use, to serve the public and the citizens of the City of Denton, Texas. SECTION 2, The Council hereby authorizes and directs the iiling and prosecution of eminent domain proceedings by the City of Denton, Texas to acquire the Property Interests. SECTION 3. The City Council hereby finds that the Owner was the record title owner of said Property Interests at the time of making the Initial Offer and Final Offer. Without limiting the general authorization provided in Section 2, above, the City Council further authorizes joinder of additional or differing owner or owners, or claimant or claimants, of the Property Interests, if applicable, in the eminent domain proceedings, and to condemn the interests of each such parties to acquire the Property Interests. SECTION 4. The City Manager, or his designee, shall have the authority to do all things necessary or appropriate to acquire the Property Interests by eminent domain, including without limitation, the authority to expend funds related to the prosecution of such eminent domain proceedings. SECTION 5. The recitals provided in this Ordinance, as set forth above, are specifically and expressly adopted by the Council as express findings by the Council. SECTION 6. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 7, This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY : APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY .-- ` �'��f�..� _. By: �� -��° '`�� PAGE ! OF 2 �i \ O �� a R � Y � 'A "PROPERTY INTERESTS" "EXHIBIT A" - Pa�e 1 of 4 , 1�� I 1( � � .ti LOT !R-f, BLOCK A I I �� ti LIBEHTY CHRIS7TAN � II � 1 SCHOOL AOOITIpN � � CAB. R, P�. 181 � iI � i P.H.O.C.T. I II ' ' i � I II ' ;CO�N � � I) � FND f/2' I.H � �� i � � i .._1__.._ .J � i � ' l6f6 S. BONNIE�BRA�-- � S00'20'37" TFACT 1! ti � 88.98' UNIVEqSI7Y OF NDRTH TEXAS L' 1 TNST.NO. 05-lO6600 L \ D.R.D.C.T. ; `�POINI' O S89'25'59"E -� �E� 17]2 5. BONNIE BRAE TAACT 12 — — BETTYE L. MARTIN INST. N0. 2009-75194 i D.R.D.C.T. �/ N00'34'OB"W `�� ,,� 100 . 74 ' � ��... ��'� S88'42'40"W - ey�`c� 10 . 00 ' ��,� l7�4 S. BONNIE BRAE 7RACT !3 14 OETTYE L. IIARTIN IN5T. N0. 2009-7518A D.R.O.C.T. !8!4 5. BONNIE BRAE L07 2, BLOCK A JOE ABBEY � , ., i , , � i i � i � : ; Y � � � � � � � i i ' i ol � a � i � � N I 1 s � � } �J y � v �d � � � � ]Bf2 5. BONNIE BRAE � i LOT 9. BL�CK A ( � JDE ABBEY -- — ' i i � � ION A `,S � � i i 811 � � � �� N � � -- � i � � � i _ a l916 5. BONNIE BRAE � ' LOT 3, BLOCK A ' JOE ABBEY i i t l, .. ......... .. . .. . . .. . i i i i i i � �_ �e d �� o M � O,.Wj W� �a {�1 ' � a S00 '34' 08"E 100,42' 4��Q ��tr ��`�� t„�i�' a� �� UNIYEFi5ITY OF NOfiTH TEXA9 VOL.284, PG.50 D.R.D.C.T. �t i /� / /� �� , `` \\ \\ \• ��t � t � BASIS OF BEARING I5 tdORTH AMERICAN DATUM OF 1983 (NAD-83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. P7--USE-1 BEING A 1,006 SQ.FT. 0.02 ACRE UTILITY & SLO E EASEMENT SITUATED IN THE 0. S. BREWSTER SURVEY, ABSTRACT N0. 56 � DENTON COUNTY, TEXAS GRAPHIC SCALE 1'-100' ^ Graham Associates Inc. �r CANSULi1NC ENGiNEERS !� PLJ�NNERS eoo s�x Fuos o►at�, sui� aoo 0 5o S00 f5o ARUNa71DN, 7E%A9 7EO11 01 6�e6�6 ��0 F"11°�� 1D16S°-0° DATE: AUGUST 2011 J/Denton/P7—USE—i Page 2 of 2 "PROPERTY INTERESTS" "EXHIBIT A" - Page 2 of 4 PARCEL 7-USE-1 LEGAL DESCRIPTION UTILTTY & SLOPE EASEMENT BEING a 0.02 acre tract of land situated in the O.S. Brewster Survey, Abstract No. 56, Denton County, Texas, being a portion of Txact 12 as conveyed to Bettye L. Martin as recorded in Instrument No. 2009-75194, Deed Records, Denton CaunTy, Texas, and being more particularly desci7bed by metes and bounds as follows: COMMENCING at a found 1/2 inch ixon rod, said point being tkae northeast corner of a t�act conveyed to University of North Tex�s, as recorded in Instrument No. OS-105600, Deeds Records, Denton County, Texas, and being in thc existing west right-of-way line of Bonnie Bxae Street (having a variable width R.O. W.); THENCE South 00°20'37" West, along said existing west right-of-way line, a distance af 88.98 feet to a point for the POINT OF BEGINNING, said point being the southeast corner of said University of North Texas tract and the northeast corner of said Tract 12; THENCE South 00°34'08" East, along said existing west r,ight-of-way line, a distance of 100.42 feet to a point %r cornex, said point being the northeast corner of Tracts 13, 14 as conveyed to Bettye L. Martin as recorded in Instrument No. 2009-75194, Deed Records, Denton County, Texas, being a common Iine; THENCE South 88°42'40" West, leaving said existing west right-of-way line and along said common line, a distance of 10.00 feet to'a point for corner; THENCE Narth 00°34'08" West, leaving said common line, a distance of 100.74 feet to a point for cornex, said point being in the north line of said Traci 12, and the south line of said University of North Texas tract, being a common line; THENCE Sauth 89°25'S9" East, along said common line, a distance of 10.00 feet to the POINT OF BEGINNING and CONTAINING 1,006 square feet, 0.02 acres of land, more or less. � ��Z�� PAGE S OF 2 ��,(�� " �'�" r,�:��g� 1714 S. BONNIE BRAE TRACT 13, 14 BETTYE L. MARTIN INST, N0. 2009-75194 D.R.D.C.T. � 1 O rD� O W �� . . . . . . . � . . . . . `•YKUYL�'K'1'Y 11V'1'L� KL+'�'1'J" �- � , � + � � �� ' i � �I �� i ti L07 !R-S, BLOCK A I I � .ti LIBERTY CHRISTIAN � �I � ti SCHOOL AUOITION i � CAB. R, PG. !83 � II � � P R D C 7. � ' . � . . � �) � � � �� { i s ►i ; ; i ii �; � �^ , ., , _rt .., , � � �__.-} .� � _ S6lB S. BDNNYE BRAE � o TRACT f! � ` UNIVEH5TTY OF NDR7H TEXAS� y ¢ TNST.NO. 05-f05600 � � o � �r=- D.R.D.C.T. � ¢ ; � _ � i , w � i �a 1 H --� dJ � �< m � 7712 S, BDNNIE BRAE �JI � N ' O�� BETiYE LT NARTIN � ,� � i � INST. N0. 2008-75lB4� / ; p, D.R.D.C.T. �I v , N88'42'4(i"� � -•;' •y 10 . 00 ' '` i• .. ; ; �V ABBEY UDIT CAB. M, PG. P.R. .C.T l8�4 S. BONNIE BRAE LO7 2, BLOCK A JDE ABBEY 3 ` � I �of 'm o,a. � ao lNm i`�I � � � o.-� � �. O �— -" \ � S88'13'54"W � 10.00' _. � — -� _, _.._ I '� !B!2 S. BONNIE BRAE � LO7 1. BLOCK A JOE ABBEY � � �OCK A �' 6ii � � N � � "' — � - i _ � i � fBl6 S. BONNIE BRAE ` LD JDE ABBEY A � r -- � � .. ..... . .. . . . . . . . . . � � r POINT 4 HEGINP ! FND f/F i � � � � 1 i � i i i i i i i .i.. . . . . . . II.R ��L:Xrilt511 A" - Yage S oi 4 �r r� /� �� \� \� � \ \' �� "��,,. �� UNIVERSITY OF NOR7H 7EXAS VOL.28q, P6.50 D.R.p,C.T, ��i � i � BASI5 OF' BEAHTNG TS NOR7H AMERICAN DA7UM OF 9983 (NAD-83) STATE PLANE CDDRDINATE SYSTEM, TEXAS NORTH CENTRAL. P8—USE-1 BEING A 1,184 SQ.FT./0.03 ACRE UTILITY & SLOPE EASEMENT SITUATED IN THE O.S. BREWSTER SURVEY, ABSTRACT N0. 56 DENTON COUNTY, TEXAS � Graham Associates (nc. CONSULTING ENGINEERS !k PU�NNERS 600 81x FLAGS DRIVE, SUIIE 600 �wuNOra+, tEx�s �em� e� ato-eaas te� t�w: �-t�ot/tea�s : tmn�a-oo n GRAPHIC SGALE !'��00' 0 50 100 150 DATE: AUGUST 2011 J/Denton/PB-USE-3 Page 2 of 2 "PROPERTY INTERESTS" "EXHIBIT A" - Page 4 of 4 PARCEL 8-US�-1 LEGAL DESCRTPTTON UTILITY & SLOPE EASEMENT BEING a 0.03 acre tract of land situated in the O.S. Brewster Survey, Abstract No. 56, Denton County, Texas, being a portion of Tracts 13, 14 as conveyed to Betiye L. Martin as recorded in Instrument No. 2009-75194, Deed Records, Denton County, Texas, and being more particularly described by metes and bounds as follows: BEGINNING at a found 1/2 inch iron rod, said point being the southeast corner of said Tracts 13, 14, and being in the existing west right-of way line of Bonnie Brae Street (having a vaxiable width R.O.W.); THENCE South 88°13'54" West, along said existing west right-of-way line, a distance of 10.00 feet ta a point for corner, said point being the in the south line of said Tracts 13, 14, and being the northeast corner of Lot 1, Blocic A, as recorded in Cabinet W, Page 811, Plat Recoxds, Denton County, Texas, being a common line; THENCE North 00°52'06" West, leaving said existing west right-of way line, a distance o£ 118.40 feet to a point for corner, said point being in the north line of said Tracts 13, 14, and being in the south line oi Tract 12, as conveyed to Bettye L. Martin as recorded in Inst�ument No. 2009-75194, Deed Records, Denton County, Texas, being a common line; , THENCE Nozth 88°42'40" East, along said common line, a distance of 10.00 %et to a paint for corner, said point being in the existing west right-of-way line of said Bonnie Brae Street; . THENCE South 00°52'06" East, along said existing west right-of-way line, a distance of 118.31 feet to the POINT OF BEGINNING and CONTAINiNG 1,184 square feet, 0.03 acres of land, moxe or less. . ��3�ze�t I PAGE ! OF 3 �� 0 � � i�q M � 17l2 5. BONNIE BRA TRACT 92 BETTYE L. MARTIN INST. N0. 2009-75l9 O.R.D.C.T. �� s?�� @�� ca`,', � ritVrL`1<l I ii�i�nr.aio , � ' � il i i i � �j ti, � LOT !R-!, BLOCK A( I ` 1 �� .y LIBEpTY CHRISTIAN � �I � ti 5CHOOL ADDITION � � CA@. ti, PG, 18� � I i P.P.D.C.T. � I� i ! � � � _ �CO�N i ii � F� �,z• � � i� , , , � i6i6 S. 60NNIE 99A�_ __ _ . � � � UNIVERSTTY OF NORTH TEXA5 �i ' IN37,ND. 05-l05G00" "-' 'f' � D.R.O.C.T. M� � NB SO 0O69•N :�� ti POINT OF � °; ; BEGINNIIJG s � ; J, � E ; i 4 �g L5 �� ; � � C2 ' ' L' ' � � � m) ' i ' J� �4~ ~ G7 L2� �. � � ; �� x C9 � � � I I ' �° , Q � , � I f714 B. BoNNIH BqAE � i' � TRACT f3, 34 I o; �� BET7YE l. HARTIN i INST. ND. 2009-75f84 ( � I i 0 j I O.R.D.C.T. x SB74 5. BDNNIE BRAE LOT 2, BLOCK A JOE ABBEY I F � R! Q _...._. �- �� I � �'qji \ � —' "tqm 1 P�iv .H Y O P'a � � w _. , ]8f2 5, 80NNTE BRAE j' i LOT ]. BLOCK A � ' JDE A86EV — ' � i i LDCK A � i i ION ,� � � eit � . �, � ' � � ; � , � .� i — • � � i i - i � I — � � i � i J1 ; lB�B S. BONNIE BHAE yr � � LOT 3. BLOCK A JOE ABBEY ; ; � i i L� i y ... .........._..... ... : `' �� i � � EXHIBIT "B" - Page 1 of 5 � ta\�iZ� �,�,��> ��``� �,,�,,{�' UNIVERSITY OF NORTH TEXAS VOL,284, pG.50 D.R,D.C.T. 1/ /% %' i� 1� �\ �\ \\ \' � GpAPNIC SCALE 1'�100' 0 5D 100 150 �8 z3.a�� 5B9•2�•59�� P7—TCE-1 BEING A BASIS D� B�AHTNG IS NOR7H AMERTCAN DATUM 2,�465 SQ.FT./0.06 ACRE OF 1983 (NAD-83) STATE PLANE COORDINATE TEMPORARY CONSTRUCTION EASEMENT SYS7EM, TEXAS NORTH CENTRAL. SITUATED IN THE O.S. BRE�P'STER SURVEY, Graham Associates Inc. ABSTRACT N0. 56 � CONSULTING ENGINEERS � P1�NNERS DENTON COUNTY, TEXAS 600 SIX F7.A09 DRIVE, 9UITE 600 �u►torox. ioc�s �eo�t (et e�a-eeas � Fl� F-��o�� -� DAiE: AUGUST 2011 J/�enton/P7-TGE-i Page 2 of 3 "PROPERTY INTERESTS" EXHIBIT "B" - Page 2 of 5 PA.RCEL 7-TCE-1 LEGAL DESCRIPTION TEMPORARY CONSTRUCTION EASEMENT BEING a 0.06 acxe tract of land situated in the O.S. Bxewster Survey, Abstract No. 56, Denton County, Texas, being a portion of Tract 12 as conveyed fio Bettye L. Martin as recorded in Instrument No. 2009-75194, Deed Records, Denton County, Texas, and being more particularly described by metes and bounds as follows: COMMENCING at a found 1/2 inch iron rod, said point baing the northeast corner of a tract conveyed to University of North Texas, as recorded in Instrument No. OS-105600, Deeds Records, Denton County, Texas, and being in the existing west right-o%way line of Bonnie Brae Street (having a variable width R.O.W.); � THENCE South 00°20'37" West, along said existing west right-o%way line, a distance of 88.98 feet to a point, said point being the southeast corner of said University of North Texas tract and the northeast corner of said Tract 12, being a common liae; THENCE North 89°25'S9" West, leaving said existing west right-of-way line and along said common line, a distance of 10.00 feet to a point for the PO1NT OF BEGINNING; THENCE South 00°34'08" East, leaving said common line, a distance of 98.58 feet to a point for corner, for the beginning of a non-tangent curve to the right having a radius oF 45.00 feet and a central angle of 41°57'06", and a long chord which bears North 62°58'28" West, 32.22 %et; TI�ENCE along said non-tangent curve to the right an arc distance of 32.95 feet to a point for corner; THENCE South 89°32'S7" West, a distance of 10.07 feet to a point for corner; THENCE North 00°27'03" West, a distance of 25.97 £eet to a point %r corner; THENCE North 89°57'13" East, a distance of 6.78 feet to a point for corner, for the beginning of a non-tangent curve to the right having� a radins of 55.00 feet ar�d a central angle of 26°53'25" and a long chord which bears North 39°00'23" East, 25.58 feet; THENCE along said non-tangent cuxve to the right an arc distance of 25,81 feet to a point for corner, for the beginning of a reverse curve to fihe left having a radius of 25.00 feet, a central angle of 20°21'53", and a long chord which beaxs Noxth 42° 16'09" East, 8.84 feet; THENCE along said reverse curve to the left an arc distance of 8.89 feet to a point fox corner; "PROPERTY INTER�STS" EXHIBIT "B" - Page 3 of 5 Page 3 of 3 THENCE North 32°OS'12" East, a distance of 7,64 feet to a point for corner, for the beginning of a non-tangent curve to the left having a radius of 20.00 feet and a central angle of S°58'16" and a long chord which beaxs North 21°14'40" East, 2.08 feet; THENCE along said non-tangent curve to the left an arc distance o£ 2.08 feet to a point for corner; � THENCE South 89°4�4'08" West, a distance of 19.36 feet to a point for corner; THENCE North 00°22'02" West, a distance of 23.53 feet to a point for corner, said point being in the north line of said Tract 12, and the south lina oi said University of North Texas tract, being a common line; THENCE South 89°25'S9" East, a distance of 23.87 feet to the POINT OF BEGINNING and CONTAINING 2,465 square feet, 0.06 acres of Iand, more or less. "YKUYLK'1'Y 11V'1'1:KN;a'1'�" l+;XHliil'l� "li" - Yage 4 oi 5 PAGE ! OF 2 G�� n �v� O a � � � 7v \.i� ' �� ' i i � � �I �� i `�i LOT !R-!, BLOCK A I I ` ti LIBERTY CHRI5TIAN � �I SCH�DL ADDI7ION � i CAB. R, pG, fe! � I� P�R,D.C.T. � II i � � �� F i i II ; ; I II � ' �� _ �. . ; � s` � �___}. -.� � _ 16f6 S. BONNIE BRAE ; P9 0 7RACT 11 = � � UHIVER5ITY OF NDRTH TEXAS � °C INST.ND, 06-l06fi00 � � o � � D.R.U.C.7. f ¢ � � H p4 ' s (� � � {�N � °�� ; � � � '� �J � �< �� 1712 5. 80NNIE BpAE ^�/I �H � O�Z p'��j q�i BET7YEALT HARTIN l < i � a. �, IN57. N0. 2009-75194� �'� � � ��' D.R.D.C.T. 1� - � r°G�"'�T�� . , �� ti �� + �� ti ,� � �� I �i i i � � 1714 S. 80NNIE BRAE I '� � , TRAC7 13, 14• � ; � INSTTTNO.L2009�75194 N88'44�5i"E � ( � I� 32.OQ' � ' O.R.D,C.7. � � N00 •52' 06"W _ _ � 28.00' _ _ , � � t S88'44' 57"W ; � 92.00' ' 1Bl4 5. BDNNIE BHAE LO7 2, BLDCK A JOE ABBEY POIIVT OF — -' �' � i HEGINNING _ _ I ' � 1012 5. BONNTE BRAE � � : i LO JDE� A9 EY A �• 1 � i J � � ��K A � � � B � Q � � , � � i ti r i t — � � � � - i i — - � i i i i � � 7Bl6 S. 60NNIE BAAE r ' � LOT 3, BLOCK A � ' JDE ABBEY i j i � � � POTNT_ f OF �MMEI�CIIV FND f/2' Y.R ��. �r�� ; ��V �',��. � �� . � UNIVEF5ITY OF NORTH TEXAS VO1..284, PCa.50 D.R.D.C.7. '52' 06"E 28.00' 1/ / /� �� I' 11 �� \� \\ \• i �i I BASIS OF BEARTN6 I5 NORTH AMERICAN DATUM OF' 1983 (NAD-83) STA7E PLAtJE COORDINATE SYSTEM, 7EXAS NORTH CENTRAL. P8-TCE-1 BEING A 89fi SQ.FT./0.02 ACRE TEMPORARY CONSTRUCTION EASEMENT SITUATED IN THE O.S. BREWSTER SURVEY, ABSTRACT .NO. 56 DENTON COUNTY, TEXAS ^ Graham Associates Inc. �r CONSULTINC ENGINEERS � PL�NNERS aoo s�x Fuas oawe. suite eoo ARUNOTON, 1DfA9 70011 QI 640-65Jb 79PE FMM: F-1fY//iBPIS : 10167e-00 n GRAPHIC SCALE 1'�l00' 0 50 S00 150 DA7E: AUGUST 2011 J/�enton/PB—TCE—i Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "B" - Page 5 of 5 PARCEL 8-TCE-1 LEGAL DESCRIl'TION TEMPORARY CONSTRUCTION EASEMENT BEING a 0.02 acre tract of land situated in the O.S. Brewster Survey, Abstract No. 56, Denton Count�, Texas, being a portion of Tracts 13, 14 as conveyed�to Bettye L. Martin as recorded in Instrument No. 2009-75194, Deed Records, Denton County, Texas; and being nnore particularly described by metes an.d boumds as follows: COMMENCING at a found 1/2 inch iron rod, said point being the southeast corner of said Tracts 13, 14, and being in the existing west right-of way line of Bonnie Brae Street (having a variable width R.O.W.); THENCE South 88°13'54" West, along said existing west right-of-way line, a distance of 10.00 feet to a point for the POINT OF BEGINNING, said point being in the south line of said Tracts 13, 14, and being the northeast coi�er of Lot 1, B1ock A, as recorded in Cabinet W, Page 811, Plat Records, Denton County, Taxas, being a common line; THENCE South 88°44'5'1" West, leaving said existing west right-of-way line and along said corrnrnon line, a distance of 32,00 feet to a point fox corner; THENCE Noi�th 00°52'06" West, leaving said common line, a distance of 28.00 feet to a point for corner; THENCE North 88°44'S7" East, a distance of 32.00 feet to a point for corner; THENCE South 00°52'06" East, a distance of 28.00 feet to the POTNT OF BEGINNING and CONTAINING 896 square feet, 0.02 acres of land, more or less. Y G2 •25� ��L Ilu.ud�:9li��ndlliiu �II IIV;��^umm II!� AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 DEPARTMENT: Utilities ACM: Howard Martin, 349-8232 ��' SUBJECT Consider adoption of an ordinance finding that a public use and necessity exists to acquire through the exercise of the right of eminent domain (I) fee simple title to the surface estate, with waiver of surface use related to the nuneral estate, of an approximate 7.36 acre tract of real property; (II) a slope easement encumbering 0.33 acre of real property; (II� a drainage easement encumbering 1.35 acres of real property; and (IV) a temporary constniction, grading and access easement encumbering 0.03 acre of real property, for the public use of expanding and improving Bonnie Brae Street, a municipal street and roadway located in the City of Denton, Texas, generally located in the 3100 blocic of South Bonnie Brae Street, and situated in the James Edmonson Survey, Abstract Number 400, City of Denton, Denton County, Texas, as more particularly described in Exhibit "A", Exhibit "B", Exhibit "C" and Exhibit "D", respectively, each attached hereto and made a part hereof (collectively, the "Property Interests"); authorizing the filing and prosecution of enunent domain proceedings to acquire the Property Interests; authorizing the expenditure of funds therefore; malcing findings; providing a savings clause; and providing an effective date. (Parcel 35 — Parkes - Bonnie Brae Widening and Improvements proj ect) BACKGROUND Ongoing negotiations with the affected property owner for the subject land rights necessary for the Bonnie Brae Widening and Improvements project have reached an impasse. Approval of the subject ordinance authorizes staff to acquire the land rights necessary by way of the exercise of the City's enunent domain authority. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) May 1, 2012 (initial offer to purchase Ordinance 2012-094) July 17, 2012 — Executive Session August 7, 2012 — Executive Session August 7, 2012 (final offer to purchase Ordinance 2012-169) FISCAL INFORMATION The overall Bonnie Brae Widening and Improvements project is being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRII' `08) funds and City of Denton local match funds. The overall costs for the Property Interests sought, as to be determined via eminent domain proceedings, are to be funded through a combination of these funding sources. BID INFORMATION Not applicable EXHIBITS 1. Location Map 2. Ordinance Prepared by, � � �.�� Paul Williamson, Real Estate Manager Respectfully subnutted, �� Franlc G. Payne, P.E. City Engineer �o c a t i o n M a p PARKES - P35 EXHIBIT 1 attachment to AIS Bonnie Brae Widening and Improvements EXHIBIT 2 attachment to AIS S:�I.egal\Our pocwnents\OrdinancesU2�Parkes Condemnation Ord clean version.doc ORDINANCE NO. AN ORDINANCE FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE THROUGH THE EXERCISE OF THE RIGHT OF EMINENT DOMAlN (I) FEE SIMPLE TITLE TO THE SURFACE ESTATE, WITH WAIVER OF SURFACE USE RELATED TO THE MINERAL ESTATE, OF AN APPROXIMATE 7.36 ACRE TRACT OF REAL PROPERTY; (II) A SLOPE EASEMENT ENCUMBERING 0.33 ACRE OF REAL PROPERTY; (III) A DRAINAGE EASEMENT ENCUMBERING 1.35 ACRES OF REAL PROPERTY; AND (IV) A TEMPORARY CONSTRUCTION, GRADING AND ACCESS EASEMENT ENCUMBERING 0.03 ACRE OF REAL PROPERTY, FOR THE PUBLIC USE OF EXPANDING AND IMPROVING BONNIE BRAE STREET, A MUNICIPAL STREET AND ROADWAY LOCATED IN THE CITY OF DENTON, TEXAS, GENERALLY LOCATED 1N THE 3100 BLOCK OF SOUTH BONNIE BRAE STREET, AND SITUATED IN THE JAMES EDMONSON SURVEY, ABSTRACT NUMBER 400, CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED 1N EXHIBIT "A", EXHIBIT "B", EXHIBIT "C" AND EXHIBIT "D", RESPECTIVELY, EACH ATTACHED HERETO AND MADE A PART HEREOF (COLLECTIVELY, THE "PROPERTY INTERESTS"); AUTHORIZING THE FILING AND PROSECUTION OF EMINENT DOMAIN PROCEEDINGS TO ACQUIRE THE PROPERTY 1NTERESTS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; MAKING FINDINGS; PROVIDING A SAVINGS CLAUSE; AND PROVIDiNG AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas (the "City") has initiated the widening and expansion of Bonnie Brae Street affecting, among other lands and interests, the Property Interests; WHEREAS, the widening and expansion of Bonnie Brae Street constitutes a valid public use of the City and its citizens; WHEREAS, the City made a written Initial Offer (herein so called) to Jacic Arlyn Parlces and wife, Betty Parlces, the owners of the Property Interests (collectively, "Owner") on May 18, 2012; WHEREAS, the City provided to the Owner of the Propei�ty Interests at the time of presenting the Initial Offer, by certified mail, return receipt requested, all appraisal reports produced or acquired by the City relating specifically to the Owner's property prepared in the ten (10) years preceding the date of the Initial Offer; WHEREAS, the Initial Offer made by the City to the Owner of the Property Interests did not include a confidentiality provision and further informed the Owner of the Property Interests that such Owner had the right to (i) discuss any offer or agreement regarding the City's acquisition of the Property Interests with others; or (ii) keep the offer or agreement confidential, unless the offer or agreement would be subject to Chapter 552 of the Texas Government Code (the "Non Confidential Notice"); WHEREAS, the City made a written Final Offer (herein so called) to the Owner of the Property Interests on August 29, 2012, said date being after the thirtieth (30th) day after the date on which the City made the Initial Offer to the Owner of the Property Interests; WHEREAS, along with such Final Offer, the Owner of the Property Interests was provided a written appraisal from a certified appraiser of the value of the Property Interests and the damages, if any, to any of the Owner's remaining property; WHEREAS, the Final Offer made to the Owner of the Property Interests was equal to or greater than the amount of the written appraisal obtained by the City; WHEREAS, the Final Offer made to the Owner of the Propei�ty Interests included (i) a copy of the written appraisal; (ii) copies of the (a) special warranty deed; (b) slope easement; (c) drainage easement; and (d) a temporary construction, grading and access easement, all being the instruments proposed to convey the Property Interests sought to be acquired by the City; (iii) the Landowner's Bill of Rights statement prescribed by Section 21.0112 of the Texas Property Code; and (iv) the Non Confidential Notice; WHEREAS, the City provided the Owner of the Property Interests at least fourteen (14) days to respond to the Final Offer and the Owner of the Property Interests did not agree to the terms of the Final Offer within that period; WHEREAS, the notice for the public meeting of the City Council of the City in which this Ordinance is considered, as required by Subchapter C, Chapter 551, of the Texas Government Code, in addition to other information as required by that subchapter, expressly included the consideration by the City of Denton of the use of eminent domain to condemn the Property Interests; WHEREAS, in ordaining the matters set forth herein, the motion to pass and approve this ordinance was stated as "I move that the City of Denton, Texas authorize the use of the power of eminent domain to acquire (1) fee simple to the surface estate, with waiver of surface use related to the mineral estate, of 7.36 acres of real property; (2) a slope easement encumbering 0.33 acre of real property; (3) a drainage easement encumbering 1.35 acres of real property; and (4) a temporary construction, grading and access easement encumbering 0.03 acre of real property; generally located in the 3100 blocic of South Bonnie Brae Street, located in the James Edmonson Survey, Abstract 400, and being more particularly described in Exhibit "A", Exhibit "B", Exhibit "C", and Exhibit "D", respectively, to the ordinance now under consideration and on the overhead screen being now displayed to the audience, for the public use of Bonnie Brae Street improvements and expansion, a street or roadway in the City of Denton, Texas"; and WHEREAS, after due consideration of the public interests to be furthered by the public use of municipal street and roadway improvements and expansion related to Bonnie Brae Street; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS; � SECTION 1. The Council finds that a public use and necessity exists to widen and improve Bonnie Brae Street to serve the citizens of the City of Denton, Texas, and that the public welfare and convenience requires the acquisition of the Property Interests, and the City of Denton, Texas does hereby exercise its home-rule and statutory authority to acquire by eminent domain, (1) fee simple to the surface estate, with waiver of surface use related to the mineral estate, of 7.36 acres of real property, as described on Exhibit "A", attached hereto and made a part hereof by reference; (2) a slope easement encumbering 0.33 acre of real property, as described in Exhibit "B", attached hereto and made a part hereof by reference; (3) a drainage easement encumbering 1.35 acres of real property, as described in Exhibit "C", attached hereto and made a part hereof by reference; and (4) a temporary construction, grading and access easement, encumbering 0.03 acre of real property, as described in Exhibit "D", attached hereto and made a part hereof by reference. The Council hereby further finds and determines that the acquisition of the Property Interests is for a public use, to serve the public and the citizens of the City of Denton, Texas. SECTION 2. The Council hereby authorizes and directs the filing and prosecution of eminent domain proceedings by the City of Denton, Texas to acquire the Property Interests. SECTION 3. The City Council hereby iinds that the Owner are the record title owners of said Property Interests. Without limiting the general authorization provided in Section 2, above, the City Council further authorizes joinder of additional or differing owner or owners, or claimant or claimants, of the Property Interests, if applicable, in the eminent domain proceedings, and to condemn the interests of each such parties to acquire the Property Interests, SECTION 4. The City Manager, or his designee, shall have the authority to do all things necessary or appropriate to acquire the Property Interests by eminent domain, including without limitation, the authority to expend funds related to the prosecution of such eminent domain proceedings. SECTION 5. The recitals provided in this Ordinance, as set forth above, are specifically and expressly adopted by the Council as express findings by the Council. SECTION 6, If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 7. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012, MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY : APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY , / _�-°'' �� _ . �__.. Zy: �� _ � � FEE SIMPLE "PROPERTY INTERESTS" EXHIBIT "A" - Page 1 of 5 PAGE 1 OF 5 y m -� z�v s. ``� m o, �4��' ¢ ¢� a�j Ch, � . a�ryo �o. L.mO�r 3, r�W �O W 3p �� H �� 39'29'q8"E 204:70'" ' - N07'04'48"E - 16,63' POIC�T'P OF COMMENCING FND 1/2" I,R SAVE 6 EXCEPT TRACT 1 JACI< ARI.YN PARKES VtlL, 4073, PG, 1207 D.R�D.C,T� ri• `,;�. �{\' ��r ��.'i.;,^ THE CHAMBERLAIN TRU57 VOL. q522, pG, ]336 O.R.D,C.T. PQINT OF aEGINNING ecr �ia� r n ' ROSELAiYN DRiVE � ,V,ARTABL.E W14TH 9.O.W, '. JACK ARLYN PARKES VQI., q073, P6, 1207 D.R.D,C,T. NOTE: SET 1/2" I.R, W/ GAI CAP TO 8E SET AT END OF CONSTRUCTION. NOTE; APPROX. 2,91 AC, LIES WITHIN FLOODPLAIN "CAPR EXISTING ROW •�]TI� Ai]��C' AL� � � �� '00'00"W 915,51' i�' � Ga �. a� w N45 •00' 00"W 26,28' FND WQOpEN POST 10' PROPOSEb ROW� ( O � r--� r ( �^ � CR095TEX ESMT � � � VOL.5282, PG.1318 0 II--'L'—D_F_D,C.I...__._.9 L_.__J ' ' o° � , � O ;� °z � , 11 1 ' 1 �. 1 � ' G 1 11 N�1 t ON�� 11� w�` � � m �1 1 ;1 � '1 t1 � r^� 1 � t ,, :�' 1' 1� �� 1 � � t �` ,,._„ — ��'... -.-, 1 1 � �� 'I I � � � � � 'I • I ad i I a ;I I a I I � � i i I I � � � � � � �� H � �i w � .1 v �f7 0 0 N U z z 0 H i-' 4 O Z �� O N �� ~ • F- � C� . °ac� � � lO � O Q ¢ mQ J J H � U � z � 0 U Z � 0 _ � Z 0 J �� 1, A PORTION OF THIS �EOICATION LIES WITHTN A FEDERAL SEE SHEET 2 EMERGENCY MANA'GEMENT AGENCY O�STGNATED FLOOd PLAIN OR FLOOD PRONE AREA AS DE5IGNATED ON THE FLOOD INSURANCE 8A5IS OF BEARING I5 NORTH AMERICAN DATUM RATE MAP FOR DENTON COUNTY GOMMUNTTY PANEL 48A21C0370Q, OF 1983 (NAO-83) STATE PLANE COORDINATE EFF�CTIVE DATE APRIL 18,2011. SYSTEM, TEXAS NORTH CEN7RAL, PARCEL 35-ROW-1 BEING 320,390 SQ.FT./7.36 ACRE SITUATED IN THE J'AMES EDMONSON ABSTRACT N0. 400, DENTON COUNTY, TEXAS � Graham Associates,lnc. . CONSULTINO ENGINEERS dc PLANN6RS E00 51X FLAGS DRIVE, SUI'fE S00 ARLINOTON, 1ENA5 7E011 (B17) B40-BB36 iHPE FlRM: F-1101/THpLS flRM� 101bJ8-OD SURVEY, n GRAPHIC SCALE 1'=f00' 0 50 100 150 DATE; FEBRUARY 2012 J/Oenton/P35-ROW-� FEE SIMPLE "PROPERTY INTERESTS" EXHIBIT "A" - Page 2 of 5 PAGE 2 OF 5 :�-+� ,.�� `'^, r'. ` ��,. JACK ARLYN PARKES VOL, 4073, PG, 1207 D.R,D.C,T, NOTE; SET 1/P" I.R, W/ GAI CAP TO B� SET AT END OF CONSTRUCTIaN, /'`_ _..._ �` \ � NQTE; APPROX. 2,91 AC, LIES WITHIN FLOODPL.AIN o= T=9 � Cb= Lc= pROPOSEp SEE SHEET i ; � � �. ;I I I.. I. i I ,'. '� O �� I `t , • ! I I � `. r;. I I n �`, � I I 3I, �' ' i I � I ' ..� �•+. I ° ��'• I I o ( ��` ,` °° � ` I I O � ,pVjr, 'L1 , � � � '' �1li °z � . °� �. ; I 1, ��I. I I �' i�•.�; . � �� . I .�\ I��. `\\\\�.� \ I . I� � � �'�.� \,. . I I n \ I �•.I � . � \\` .-� �� .� \ ,I � I l� w ,� ,.�',.,I. I � � I' � I � . I' , �I � . ' � .' � � '�, o ��, �,;� . d •,,'� 'I, I u' `, �'`, �` �,I.`� I \\ �� \ ,� l� � \,�. \� �: �'� ��,.\ I I \\ . � ��,, .'�.;I� I . .,,•..' I;;�•, I �, , , ��„ �� \ i �.,.' wco�-- � . ., i ` ..'' .IXac�I ' .IIW'.fL�I ;/ j��°j `�`•, ,� , . � . � .> � • �:.� � . SEE SHEET 3 1, A PORTION OF THIS DEDTCATION LIES WITHIN A F�OERAL EMERGENCY MANAGEMENT AGENCY DESIGNAT�D FLOOD PLAIN OR F'LOOD PRONE AREA AS Q�SIGNATED ON THE FLOOD INSURANCE RATE MAP FOR DENTON CDUNTY COMMUNITY PANEL A8121C0370G, EFFECTIVE DATE APRIL 18,2011. U Z H z 0 H a 0 z �� O N �� ~ • F- �� . VO.0 � Q o. O q ¢ m ,O � J H� U � Z a O U z a 0 _ c� z 0 � 6ASIS OF BEARING I5 NORTH AMERICAN pATUM OF 1983 (NAD-89) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL, PARCEL 35—ROW--1 BEING 320,390 SQ.FT./7.36 ACRE SITUATED IN THE JAMES EDMONSON ABSTRACT N0. 400, DENTON COUNTY, TEXAS .^ Grahdm Associates,inc, �CONSULTING ENGINEERS dc PLANNERS tl00 SIX F1.A09 DRIVE, SUI7E S00 ARLINOTON, TEXAS 78011 (81� 040-86'J6 TBPE flRM: F-11B1jTBpLS FlRMi 101638-00 SURVEY, %� GRAPHIC SCALE !'=l00' 0 60 100 150 DATE; FEBRUARY 2012 J/Oenton/P35—ROW—! PAGE 3 OF 5 //� �� FEE SIMPLE "PROPERTY INTERESTS" EXHIBIT "A" - Page 3 of 5 , SEE SHE�T 2 �\ I I � I I �<��OA<r� � I I '�N � ; • I I � ,�r�� I / PROPO5ED JACK ARLYN PARKES VOL, 4073, PG. 1207 D.R.D.C.T, ��: ��' �,. r,_; �.�';�• :'� ° �' ��. :'� �PEE� >' ,''r�� ..c�'; G, � N1GK�AV /� , , PPpP� , ' SET !/2" I.R,� • W/GAI CAP / � � n �L/ � H �!7 N Z �� ' I � � I I � " I I I ( , I I �1 ( � � � I I d ( � / �+� ( � � ;'.' . I I / ��. ' � ' (�m � I�� I /i?� �' ', �Xa�� . ��. . � �.I��..NOI � . . . IInNpI O�? ''• �''.. ��o � a I>I 'a� � I I ,. i� � � . � � � � � � . � � ( � ' ( � J—'' � I `� .. � � ' ✓y . • . �1 � 1. A PORTION OF THIS DEDICATION �IES WTTHIN A FEDERAL EMERGENCY MANAGEMENT AGENCY DESIGNATED FLOOD PLAIN QR FLOOD PRONE AREA AS DESIGNATED ON THE FLOOD INSURANCE RATE MAP FOR DENTON COUNTY COMMUNITY PANEL 48121C0370G, EFFECTIVE l7AT� APRTL 18, 2011, / �� ` / U � H N .i ri (D t0 H w t� � � ltl 0 O � � MARVIN HENDERSON ESTATE TRUST DOC. N0. 96—R0055800 D,R,Q,C,T, Z O H F-- a 0 z �� O N �� F' � V d U � o ci � 0.�� m � J --� H � U � Z _ 0 U Z a 0 S co z 0 J i 1/2" I.R. /GAI CAP NOTE: 5ET 1/2" I,R. W/ GAI CAP TO BE SET AT END OF CONSTRUCTION. NOTE: APPROX. 2.91 AC. LIES WITHIN FLOODPLAIN BASIS OF 6�ARING IS NORTH AMERICAN DATUM OF 1983 (NAD�83) STATE PLANE COORDINATE SYSTEM, 7EXAS NOR7H CENTRAL, PARCEL 35--ROW--1 BEING 320,390 SQ.FT,/7.36 ACRE SITUATED IN THE JAMES EDMONSON ABSTRACT N0. 400, Graham Associates,lnc. DENTON COUNTY, TEXAS � CONSUL7ING ENGINEERS dc PLANNERS E00 SIX FLA09 DRIVE, 5t11TE 5D0 ARUNOTON, iEXA3 76011 (B17) B40-BS36 TBPE FlRM: F-1101/TBPLS FlRMt tOibJB-00 SURVEY, n GRAPHIC SCALE 1'=f00' 0 50 f00 150 DATE: FEBRUARY 2012 J/Dentan/P35-ROW-i Page 4 of 5 FEE SIMPLE "PROPERTY INTERESTS" EXHIBIT "A" - Page 4 of 5 PARCEL 35-ROW-1 LEGAL DESCRIPTION Being a 7,36 acre tract of land situated in the James Edmonson Suivey, Abstract No.400, Denton County, Texas and being a poi�tion of that 42 acre tract of land conveyed to Jack Arlyn Parkes, as recarded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, and being nrtore particularly described as follows; COMMENCING at a found 1/2 inch iron rod, said point being the southeast corner of a tract of land conveyed to Jack Parkes and wife Betty Parkes, as recorded in Volume 5022, Page 3438, Deed Records, Denton County, Texas, and being in the existing west right-of-way line of Bonnie Brae Street (having a variable width R,O,W,), and the existing souih right-of way line of Roselawn Drive (having a variable width R,O.W,); THENCE South 89°29'48" East, leaving existing said west right-of-way line and along existing said south right-of-way line, a distance of 204.70 feet to a set 1/2 inch iron rod with GAI cap for the POINT OF BEGINNING, said point being the northeast corner of a tract of land conveyed to Jack Arlyn Parkes, save and except Tract 1, as recoxded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, � THENCE South 89°29'48" East, continuing along existing said south right-of-way line, a distance of 462,10 feet to a found wooden post for corner, said point baing the northwest corner of a tract conveyed to Longhorr� Council Boy Scout Foundation, Inc, as recorded in Volume 450, Page 526, Deeds Records, Denton County, Texas, being a common line; THENCE South 00°54'17° �ast, leaving existing said souih right-of way line and along said common line, a distance of 1661,12 feet to a set 1/2 inch ixon rod with GAI cap for corner, said point being ihe souiheast corner of said Jack Arlyn Parkes tract and being in the noxth line of a tract conveyed to Mazvin Henderson Estate Trust, as recorded in Instrument. No, 96- R005580�, Deeds Records, Denton County, Texas; THENCE South 80°10'16° West, along said narth line, a distance of 352,17 feet to a sat 1/2 inch iron rod with GAI cap for corner, said point being in the proposed west right-of-way line of said Bonnie Brae Street; THENCE North 12°56'18" East, leaving said noi�th line, and along said proposed west right-of- way line, a distance of 761.45 feet to a set 1/2 inch iran rod with GAT cap for corner, for the beginning of a tangent curve to the left having a radius of 852,50 feet, a central angle of 12°56'18", and a long chord which bears North 06°28'09" East, 192.10 feet; THENCE continuing along said pxoposed west right-of-way line, and along said tangent curve to the left, an axe distance of 192,51 feet to a set 1/2 inch iron rod with GAI cap for corx�ei; THENCE North 00°00'00" West, eontinuing along said proposed west xight-of-way line, a distance of 755,40 feet to a set U2 inch iron rod with GAI eap fox corner, said point being the most southerly point of a corner-clip; FEE SIMPLE "PROPERTY INTERESTS" EXHIBIT "A" - Page 5 of 5 Page 5 of 5 THENCE North 45°00'00" West, leaving said proposed west right-of-way line, and along said corner-clip, a distance of 28.28 feet to a set 1/2 inch iron rod with GAI cap for corner, said point being in the proposed south right-of-way line of Roselawn Drive (having a variable width R.O,W,); THENCE North 90°00'00" West, along said proposed south right-of-way line, a distance of 315.51 feet to a set 1/2 inch iron rod with GAI cap for coxner, said point being in the east line of the save and except Txact 1 of Jack Arlyn Parkes h•act; THENCE North 07°04'48" East, continuing along proposed south right-of-way line and along said east line, a distance of 16,83 feet to the POINT OF BEGINNING and CONTA1NlNG 320,390 square feet, 7,36 acxes of land, more or less, c�✓s_► � - .� _ _ PAGE 1 OF 4 �m 2yW.m -� � �� i Wo'�^ti' o. ¢� �'U ty, ¢; ymo�z p� U� �� Ni � ,w 3r 3 o w; � ,�m� ;� �� "PROPERTY INTERESTS" EXHIBIT "B" - Page 1 of 8 THE CHAMBEFL.AIN TRUS7 VOL. 4622, PG. 1336 D,R.O.C.T. � i"--- � ^ �--� `� i/rr--------------rrjr�-- i��,---- rTr�---------,,-,�•- RD�SELAI9TV -DT�NLr----------------� �� 589•89'48"E-�0��70'----- -_---,-,�11-lYARTABLE�IIOrH_B.,O�VI�)-----------.�1��------.�Il�-----------�---��,'„ , .� _ S07 '04' 48"W � � 16,83' POINT OF COMDdENCING FND i/2" I.R SAVE 6 EXCEPT TRACT i JACI< ARLYN PARKES VOL, 4073, PG, 1207 o,R,o.c.r. �;e% ��. �� 9� �� v �� N90 �00'00"E� 3��5.51' \ y I � S45'00'00"E � �, I 2s,2e� I '� � I 'I , ` I .� �y I \ I � �� IAI � I i� �i I � I I a � i // / / � / � � � I �� i� � � � � I � � r — — -�-- � � I I--I—I---------• � � � �VOLR5292ExPGS1318 I �—J..a-.—D_R_D.C.L•---- �__ � � I N90'00' OQ"E � � � 10,00' lf7l\ I I r�� I I NI� JACK ARLYN PARKES I! �� VOL. 4073, PG, 1207 I I o°� D,R,D.C.T. ,�� BASIS OF BEARING I5 NORTH AMERICAN CIATUM QF 1983 (NAO-83) STATE PLANE COORDINATE SYST�M, TEXAS NORTH CENTRAL. O Ip 0 lo � � 1 � 1 � 1 � 1 1 � 1 r� lo'�n�� 1�"j m1� x 1; �3�1 1 � � 3 1 Q , I 11 °w 1 1 w 1 o � 1 ¢ ' � 1� �1 1 1 _ ' � POINT OF 1 N 0 � � '� � 1 0l; °o 1 � Q�� . �i a 0 0 / / zt•., Cn BEGINNING I I � � � I II � � I I� � � � � a�v � � � I I w I I I I I SEE SHEET 2 PARCEL 35-5E-1 BEING A 10,839 SQ.FT./0.25 ACRE SLOPE EASEMENT STTUATED IN THE JAMES EDMONSON ABSTRACT N0. 400, DENTON COUNTY, TEXAS �^ Graham Associates,lnc. �CONSULTiNG ENGINEERS dc PLANNERS eoo six Fl�os oRtve, sui� �oo MLINOTOtJ, TEXAS 76011 (817) a40-BSJ6 iBPE FlRMt F-11ot/TBPLS FlRMt 1016J8-p0 SURVEY, �"' U z H Z O H I-- ¢ 0 5 o �° �N Ul ~ �F- _ �ClU � d O • o�Q CO p J "� H � U7 Z � 0 U z � 0 _ � z 0 J GRAPHIC SCALE a'�100' 0 60 100 150 DATE: DECEMBER 2011 J/Dentan/P35-SE-] PAGE 2 OF 4 SAVE & EXCEPT TRACT 3 JACK ARLYN PARKES VOL, 4073, PG, 1207 D,R,D.C,T, . �� , ��.�.� y� �>� , '(��' � „�'�r ,��. � "PROPERTY INTERESTS" EXHIBIT "B" - Page 2 of 8 SEE SHE� �� N00•00'00"W j` ,' ' 237 . 5 ! ' �� i � �: � i N90 •00' 00"E I� � 15,Op' � , i . N / , lI7 (� ri . ti I� �r �m !0'55'03" R=827.50' T=79.08' L=157.66' CbmN05'27' 32"E Lc=i57.44' JACK ARLYN PARI<ES N79'04'57"W VOL. 4073, PG. 1207 25.00' D,R.D,C.T. � FLOODpLAIN ` �/ \\ / \ � W� \. O � , I. 0 o �`. . o �\ O Z!�` �\ � � .-, �� v � C O a ROW U z H z 0 H F a 0 z �� O N �� ~ �F �� dU f� Q Q�Q � •o J -� H � U � z � 0 U Z Q O _ c� z 0 J \' ' �--�= 10'55'03" � � �I R°852.50' � I ( T=81.47' I I L=162,44' I I Cb=S05'27'32"W I I Lc=162.20' I I I I I I I�I 1=� .I �Wa~� X U IFNpI INNdI I��'QI IU� I > � � � � � � � � � � BASIS OF BEARTNG IS NORTH AMERICAN OATUM OF 1983 (NAD-83) STATE PLANE COORDINATE SYSTEM, 7EXAS NORTM CENTRAL. PARCEL 35-5E--1 BEING A 10,839 SQ.FT./0.25 ACRE SLOPE EASEMENT SITUATED IN THE JAMES EDMONSON ABSTRACT N0. 400, DENTON COUNTY, TEXAS � Graham Associates,lnc, � CONSULTING ENGINEERS dt PLANNERS E00 SIK FLA05 pRIVE, SUITE 600 MIJNOTON, TEXAS 76011 (817) a4O-B636 THPE flRM� F-1iBl/1HPLS FlkMi 1016J8-00 SURVEY, �"' ORAPHIC SCALE 1'=fOp' 50 f00 150 DATE: OECEMBER 2011 J/Dentan/P35-SE-� Page 3 of 4 "PROPERTY INTERESTS" EXHIBIT "B" - Page 3 of 8 PARCEL 35-5E-1 LEGAL DESCRiPTION SLOPE EASEMENT Being a 0.25 acre tract of land situated in the Jarnes Edmonson Survey, Abstract No.400, Denton County, Texas and being a portzon of that 42 acre tract of land conveyed to Jack Arlyn Parkes, as xecorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a found 1/2 inch i�•on xod, said point being the southeast corner of a tract of land conveyed to Jack Parkes and wife Betty Parkes, as recorded in Volume 5022, Page 3438, Deed Records, Denton County, Texas, and being in the exxsting west right-of way line of Bonnie Brae Street (having a variable width R.O.W.), and the existing south right-of way line of Roselawn Drive (having a variable widtl� R.O.W.); THENCE South 89°29'48" East, leaving existing said west right-of-way line and along existing said south right-of-way line, a distance of 204.70 feet to � point for corner, said point being in the proposed south right-of-way line of Roselawn Drive (having a variable width R.O,W.), also being the northeast corner of a tract of land conveyed to Jack Arlyn Parkes, save and except Tract 1, as recorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, THENCE South 07°04'48" West, along said proposed south right-of-way line, and along east line of the said save and except Tract 1, a distance of 16,83 feet to a point for corner; THENCE North 90°00'00" East, leaving said east line, and continuing along said proposed south right-of-way line, a distance of 315.51 feet to a point for corner, said point being the most northerly point of a coi�er-clip with the proposed west right-of-way line of Bonnie Brae Street (having a 95' R,O,W.); THENCE South 4S°00'00" East, along said corner-clip, a distance of 28,28 feet to a point �or corner; THENCE South 00°00'00" East, along said proposed west xight-of-way line, a distance oi 339.39 feet to a point fox corner, being the POTNT OF BEGINNING; THENCE South 00°QO'00" East, continuing along said proposed west right-of-way line, a distance of 416,02 feet to a point for corner, for the beginning of a tangent curve to the right having a radius af 852.50 feet, a central angle of 10°55'03 ", and a long chord which bears South OS°27'32" West, 162,20 feet; THENCE continuing along said proposed west right-of-way line, and along said tangent curve to the right, an are distance of 162.44 feet to a point for corner; THENCE North 79°04'S7" West, Ieaving said proposed west right-of-way line, a distance of 25.00 feet to a point for corne�•, for ihe beginning of a non-tangent curve to the left, having a "PROPERTY INTERESTS" EXHIBIT "B" - Page 4 of 8 Page 4 of 4 radius of 827,50 feet and a central angle of 10°55'03", and a long chord which bears No��th OS°27'32" East, 157.44 feet; THENCE along said non-tangent curve to the left an arc distance of 157,68 feet to a point fox corner; THENCE North 00°00'00" East, a distance of 178,51 feet to a point for carner; THENCE North 90°00'00" East, a distance of 15.00 feet to a paint fox corner; THENCE North 00°00'00" West, a distance of 237.51 feet to a point for corner; THENCE North 90°00'00" East, a distance oi 10,00 feet to the POINT OF BEGINNING and CONTAINING 10,839 square feet, 0.25 acres of land, more or less, PAGE 1 OF 2 ro z°iUQ � �¢� �,' a�;ti W o; Y>- Q U � �,\ ai Ym � Q; ik N4 , �3, HJ � wi 3 q W�� Ki ; O �,� ,W�� ,��/ ��1��.. "PROPERTY INTERESTS" EXHIBIT "B" - Page 5 of 8 THE CHAMBERLAIN 7RUST VOL, 4522, PG. 1336 D,R,D�C.T, S90 '00 ' QO "E 97.50' - T -RQSEI,�19N D1�IVE-----�OII�'1� 6�' �--�-r rr r�---- r r�-------------,-�j�,-.---- rTr�------------ i:.• �dd:�o�lYnBiABLE_wioTH�Q�o,�.).--B�6II�NIPi� --------- ---��-- —Sg5�00'00"E---- ,,', � — ' __�.b7' S07•04'48"W 16.83' POINT OF COMMENCING FND 1/2" I,p SAVE & EXCEPT 7RACT � JAq< pRLYN PAFKES VOL, 4073, PG, 1207 p.R,O,C,T. � :.�, J � i,� r ' i[' _:;��'; t��- r•y x:;.,:_� � �.� SITUATED � S90'00'00"E��18,0]' � "'-�--' � ',. I � N90'00'00"W N00'00'OQ"� � 102.50' 5,40'.,�� I � , \��,i I �ti� \� � i � Q� � � I � �' I i a � ; /� ; �/ I ; � I / � �� / I � � I � � � —'�—� I i I �— —'� CROSSTEX ESMT ( � � �VOL, 5292, PG, �318 I �,J..1._�DTR_o,c.L---- L__J � I � � �� II II �� JACK ARLYN PARKES I� VOC. 4073, PG, 1207 � � D.R.D,C,T. II �� i �1 � � 1 1 � 1 � 1 � 1 g p� ��'�° �� N�,1 10• M� x 1`a � �1 1 � � � H 1 (1� �1 1 1 � � , � � 1 1 � � 1, 1 d 1 1 __��— 'i _ aa�, _ � I � I II ( � a I I � I I a I I � � I I I I I I I I I I I I U z H z 0 H h a °z ' �� O N LL. � ~ •H �� U d U N Q O • O�¢ m .o J --� H � U � z � 0 U Z � 0 _ � z 0 � BASIS OF BEARIN6 IS NORTH AMERICAN pATUM OF 1983 (NAD-83) STATE PLANE COORDINATE SYSTEM, TEXAS NDRTH CENTRAL, PARCEL 35-5E-2 BEING A 500 SQ.FT./O.Oi ACRE SLOPE EASEMENT IN' THE JAMES EDMONSON ABSTRACT N0. 400, DENTON COUNTY, TEXAS � Graham Associates,lnc. . �QNSULTING ENGINEERS dc PIANNERS E00 SIX FLAOS DRIVE, SUITE 600 ARLIN070N, tEXAS 78011 (617) 640-B6J6 7HPE FlRAIt F-1191/THplS FlRAIt 101638-00 SURVEY, r"' GRAPHIC SCAIE !'�f00' 0 50 S00 150 DATE: DECEMBER 2011 J/qenkon/P35-SE-2 Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "B" - Page 6 of 8 PARCEL 35-5E-2 LEGAL DESCRTPTION SLOPE EASEMENT Being a 0.01 acre tract of land situated in the James Edmonson Survey, Abstract No.400, Denton County, Texas and being a portion o� that 42 acre tract of land conveyed to Jack Arlyn Parkes, as recorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a found 1/2 inch iroix rod, said point being the southeast corner of a tract of land conveyed to Jack Parkes and wife Betty Parkes, as recorded in Volume 5022, Page 3438, Deed Records, Denton County, Texas, and being in the existing west right-of-way line of Bonnie Bxae Street (having a variable width R,O.W.), and the existing south right-of-way line of Roselawn Drive (having a variable width R.O, W.); THENCE South 89°29'48" East, leaving existing said west right-of-way line and along existing said south right-of-way line, a distance of 204.70 feet to a point for corner, said point being in the proposed south right-of-way line of Roselawn Drive (having a variable width R,O.W.), also being the northeast corner of a tract of land conveyed to Jack Axlyn Parkes, save and exeept Tract 1, as recorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, THENCE South 07°04'48" West, along said proposed south right-of-way line, and along east line o£the said save and except Tract l, a distance of 16.83 feet to a point for eoa•ner; THENCE South 90°00'00" East, leaving said east line and continuing alon� proposed south right- of-way line, a distance of 218.01 feet to a point for corner, being the POINT OF BEGINNING; THENCE South 90°00'00" East, continuing along proposed south right-of-way line, a distance of 97,50 feet to a point for cornar, said point being the most northerly point of a corner-clip with the proposed west right-af way line of Bonnie Brae Street (having a 95' R.O,W,); THENCE South 45°00'00" East, along said cornex-clip, a distance of 7,07 feet to a point for corner; TH�NCE Noxth 90°00'00° West, leaving said proposed west �•ight-of-way line, a distance of 102.50 feet to a point for eomer; THENCE Noz�th 00°00'00" �ast, a distance of 5,00 feet to a the POINT OF BEGIIVNING and CONTAINING 500 square feet, 0.01 acres of land, mare or less. PAG� f OF 4 tim Qam ^ �r s; w4�� d: �� 4V �y,\ �i e�o¢ �o �� 4 � 3� 3 "1 I �� i o �ai a� n �', �� (� "PROPERTY INTERESTS" EXHIBIT "B" - Page 7 of S THE CHAMBERLAIN TRUST VOL, 4522, PG, 1336 D,R,D.C,T, �� -- � '----- �r�r�-------------��jr�-IiD-SELA�YYN D1�TV��----- -��Tr�--- 507'04'48"W 16.89' POYNT OF' COMMENCING FND 1/2" I.R SAVE & EXCEPT TRACT a JACK ARLYN PARKES VOL, 4073, PG, f207 D,R.D.C,T, ;'rI . , _L� �:�: �; �:�� t .., .- :.�'.. , i, . - _ -' - - - ,--_: ,�1�1VAR�Q84E,jVIGTN_e.,Qr�.,l-------- -------,�1�,--- .� — � S90'p0'00'E 316 61' --Ar�/r�------------ --,r��: _S3�1��!�Q"E'_' ".,J1J.�_. 1d, 1� �.- .' - — � � I � S45iq014p„E 1 ' ,� `, I 1 �. I � POIMi' OF '� ,�•. i � HEGINNING �\ ,� 11 � �' � \ i� � �� rc1 � � � Ol�\ � 1p�pl � � � m� m �y��l � A I mj � m ,1� N1 �; a' 1 z i �' W�3 � �� ~ I�' o��' °o � w� z I a I -�� - � o :' ,� � o� o � I11 0 �'� I a�� o � � 1 � , � z�\ cn � 1� � �� ,. � � �1 0�� I! I I � �� 1 � �aQ r--- �_ � I I l� o �1 � °m v� I �—'�� CROSSTEX ESMT ^\ �� 1I Hoo � � � �VOL.5292, PG, �3�9 (; c� I I — -1-a- —°_R—D,&,L � _ _ — �..-°*-',- — ' � � �� I I � L—� � � I N90 •00' 00"W � � I I Z I I 10.00' � � p, ( �� o II I ¢ � I I � I I � �, a+ � � I z I I � I I � o --' JACK ARLYN PARKES II � o I I VOL, 4073, PG. 1207 �� I a � � D,R.D,C.T, � � I--� I I ll � I I J� � I I �� I I BASIS OF BEARIN� IS NORTH AMERICAN DATUM OF 1983 (NAD-83) STAT� PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 35—SE�-3 BE7NG A 3,194 SQ.F'T./0.07 ACRE SLOPE EASEMENT SITUATED IN THE JAMES EDMONSON SURVEY, n ABSTRACT N0. 400, DENTON COUNTY, TEXAS � Graham Associates,lnc. � CONSULTING ENGINEERS & PtANNERS E00 SIX FLAOS DRIVE, 6UITE 600 ARIINOTOtJ, 1EXA5 76011 (817) 640-86J6 TBPE flRM� F-11B1/THPLS �IRA(� 101638-00 GRAPHIC 3CALE f•af00' 0 50 100 150 DATE: DECEMBER 2011 J/Denton/P35-SE-3 Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "B" - Page 8 of 8 PARCEL 3S-SE-3 LEGAL DESCRIPTION SLOPE EASEMENT Being a 0,07 acre tract of land situated in the James Edmonson Survey, Abstract No.400, Denton County, Texas and being a portion of thai 42 acre tract of land conveyed to Jack Arlyn Parkes, as recorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, and being more pai�icularly described as follows: COMMENCING at a found 1/2 inch u•on rod, said point being the southeast corner of a tract of land conveyed to Jack Parkes and wife Betty Parkes, as recorded in Volume 5022, Page 3438, Deed Records, Denton County, Texas, and being in the existing west right-of-way line of Bonnie Bxae Street (having a variable width R,O.W.), and the existing south ri�ht-of-way line of Roselawn Drive (having a variable width R,O.W.); THENCE South 89°29'48" East, leaving existing said west right-of-way line and along existing said south right-of-way line, a distance of 204.70 feet to a point for corner, said point being in the proposed south right-of-way line of Roselawn Drive (having a variable width R,O,W,), also being the northeast corner of a tract of land conveyed to Jack Arlyn Parkes, save and except Tract 1, as recorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, THENCB South 07°04'48" West, along said proposed south right-of-way line, and along east line of the said save and except Tracf 1, a distance of 16.83 feet to a point for carner; THENCE South 90°00'00" East, leaving said aast line and continuing along proposed south right-of-way line, a distance of 315,51 feet to a point for corner, said point being the most noi�therly point of a corner- clip with the proposed west right-of-way line of Bonnie Brae Stt•eet (having a 95' R.O,W.); THENCE South 45°00'00" East, along said corner-clip, a distance of 14,14 feet to a point for corner, being the POINT OF BEGINNING; THENCE South 45°00'00" East, continuing along said corner-clip, a distance of 14,14 feet to a point for corner, said point being in the proposed west right-of-way line of said Bonrue Brae Street; THENCE South 00°00'00" West, continuing along said proposed west right-of way line, a distanee of 314.39 feet to a point for carner; THENCE North 90°00'00" West, leaving said proposed west right-of way line, a distance of 10,00 feet to a point for corner; THENCE North 00°00'00" East, a distance of 324.39 feet to the POINT OF BEGTNNING and CONTAINING 3,194 square feet, 0,07 acres of land, more or less. � � , . --- • F- PAGE 1 OF 2 �m z°�'� -. Q� m � �� ' w4�� n'� �}'aV �Li .� Ch � Y� � O' 7 �' �� 3� 3-� W� Q m' �� a� �� "PROPERTY INTERESTS" EXHIBIT "C" - Page 1 of 12 THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 D.R.D.C.T, r � , -- ---rrr�---------- -- --�•r�r�- ROb'ELA �t� -,- -,�J./SVARIABI.� ; 589.2q�d9,,E...�6�:70"-----:'- . �. S07 '04' 48"W 18,83' POINT OF COM�ENCING FND 1/2" I,R SAVE 6 EXCEPT TRAOT 1 JACK ARLYN PARKES VOL. 4073, PG, 1207 D.R,�,C,T. �_;� �i.j . i�{� .r:: . �� , 590 'p0' --------------� --- L ._`_� � �T;�- rj��-- ------ "�.__'___"""'__�J/J�___""�11L_________` tJ..,_. "� � , � � �I � � � 545'00'00"E - �`\ \ � I� 28.�8' � \\ �,, \ � i � � �� I i `1 � i �A� � � � � � I � � � I,, ,' ;, i / i I • � /� I / � � / � � f- — — —I� � I I N9Q '00 ' 00 "E � 2�.�� I I— "�� CROSSTEX ESMT � � � � IVOL.5292, PG.1318 I I—_I.-I--[l_R.D.C.T. --- . L__ J � � N0025�00� 11 E� I� II I I N90 '00 ' 00"W — � � 2�� JACI< ARLYN PARKES I I VOL, 4073, PG. 1207 �� D,R.D,C,T. �� l� I/ BASIS OF B�ARING IS NORTH AMERICAN �ATUM �� OF 1983 (NAD-B3) STATE PLANE COQROINATE SYSTEM, TEXAS NORTH CENTRAL, PARCEL 35--DE-1 BErNG A 500 SQ.FT./0.01 ACRE DRAINAGE EASEMENT SITUATED IN THE JAMES EDMONSON ABSTRACT N0. 400, DENTON COUNTY, TEXAS � Graham Associptes,inc. ■ CONSULTING ENGINEERS dc PL4NNERS EQO SIX FLA03 pRIVE, SUITE 800 ARLINOTON, TEXAS 7E011 (B17) 8�{O-86J6 TBPE FlRM� F-11B1/1HPL8 �IRMt 1016JB-00 3 I QI W, � o' a� � � � I � �1 � � , � 1 � 1 1 � <� �� , NI ;p NN�� 10 r�1 �i ��11 1�� 1 � ��1 � 1 � , � , �` 1 1 1 POINT OF,� � �,BEGII�ILTIIY 1 ' � -SOO �oa � oa �Hi � 25,00' � � � �I ^ I I� � o ( � Q � I I � I I a�v � � o� I i a I I � � SURVEY, � U Z H Z O H � a 0 z a� o N �� ~ • F- � ��0.0 � � o�� m� ' 0 J '� H � v� Z � 0 U Z � 0 x � z 0 J GRAPHIC SCALE i'=100' 0 50 100 150 DATE: DECEMBER 2011 J/Oenton/P35-DE-i Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "C" - Page 2 of 12 PARCEL 3S-DE-1 LEGAL DESCRIPTION DRAINAGE EASEMENT Being a 0.01 acre tract of land situated in the 7ames Edmonson Survey, Abstract No.400, Denton County, Texas and being a portion of that 42' acre tract of land conveyed to Jack Arlyn Parlces, as recarded in Volutne 4073, Page 1207, Deed Records, Denton County, Texas, and being more particularly deseribed as follows; COMMENCING at a found 1/2 inch iron rod, said point being the southeast cornex of a iract of land conveyed to Jack Parkes and wife Betty Parkes, as reeorded in Volume 5022, Page 3438, Deed Records, Denton Caunty, Texas, and being in the existing west itight-of-way line of Bonnie Brae Street (having a variable width R,O.W,), and the existing south right-of-way line of Roselawn Drive (having a variable width R.O.W,); THENCE South 89°29'48" East, leaving existing said west right-of-way line and along existing said south right-of-way line, a distance of 204.70 feet to a point for corner, said point being in the proposed south right-of-way line of Roselawn Drive (having a variable width R,O.W.), also being the northeast corner of a tract of land conveyed to Jack Arlyn Parkes, save and except Traet 1, as reeorded in Volume 4073, Page 1207, Deed Reeords, Denton County, Texas, THENCE South 07°04'48" West, along said proposed south right-of way line, and along east line of the said save and except Tract l, a distance of 16,83 feeC to a point for corner; THENCE South 90°00'00" East, leaving said east lzne and continuing alang proposed south right- o� way line, a distance of 315,51 feet to a point for corner, said point being the most northerly point af a corner-clip with the proposed west xight-of-way line of Bonrue Brae Street (having a 9S' R,O,W,); THENCE South 45°00'00" East, along said corner-clip, a distance of 28.28 feet to a point fox corner; THENCE South 00°00'00" West, along said proposed west right-of-way line, a distance of 314,39 feet to a point for corner, being the POINT OF BEGINNING; THENCE South 00°00'00" West, continuing along said proposed west right-of-way line, a distance of 25.00 feet to a point for corner; THENCE North 90°00'00" West, leaving said proposed west �7ght-of-way line, a distance of 20.00 feet to a point for cornex; THENCE North 00°00'00" East, a distance of 25.00 feet to a point for corner; THENCE North 90°00'00" East, a distance of 20.00 feet to the POINT OF BEGINNING and CONTAINING 500 square feet, 0,01 acres of land, more or less. PAGE ! OF 5 w ��M � 3� �I} �~ O� 4' U �W NO ��, ¢', 4�0¢ �; j�' �Q ��31 30 W� � I �� i�� ` S89•29'48"E�?Ae 7n� 507'04'48"W 16.83' POINT OF COMMENCTNG FNp 1/2" I,R SAVE 6 EXCEPT TRACT i JACK ARLYN PARKES VOL. 4073, PG. 1207 D,R.D.C,T. , �'� I, "PROPERTY INTERESTS" EXHIBIT "C" - Page 3 of 12 THE CHAMBERLAIN TRUST VOL. 4522, PG, l336 o.a,o,c.r, "'''' ROSELAIVN D1iIVL .. -- ------ ----rj.� --- �—' .,; �, — _ . , . ... ,:.,.IVARIABLE_�IIpTH_R..0;41,.) . .. �;/:.__._.. .,: �,. � �N�O'00'OO�E 315,51' � 1 � , ii � I . I � '' � i � , . � � � � \ �I ,AI �� ( � � S45 '00' 00"E 28.28' 1 1 � 1 � 1 � � 1 1�a�+N1 ;p NNI �o �1 1; �`� � I �' �I I 1 � n � ¢I 1 %/,i�� I I� 11 I',� � � al � 1 � ' /� i I � 11 1 / I � � o , 1 � ` � I I I q , �� I-� I I I� 1 �1 iI--�--�---------I —___..— CROSSTEX ESMT ' j I � I �VqL, 5292, pG. 1318 � � i��-l-_a_R_o.c.r. _^-1= ----- L _ . _ J -- - I I �� i I � � i il II � � � f I � �� I I� I I � pp�o I I JACK ARLYN PARI<E5 � � � ��a I I VOL , 4073, PG . 1207 � � I I I D,R,D,C.T. ll I o�� I ( f 1 I a�`'' I I i� a , , � a BASIS OF BEARING I5 NORTH AMERICAN aATUM �' ( OF A983 (NAD-83) STATE PLANE COORDINATE SEE SHEET 2 SYSTEM, TEXAS NORTH CENTRAL. NoTES; SITUATED U Z H Z O H f-^ Q z �� O N l�. � ~ •h � b 2 U � O d�� 0° � o � J Ho Uy z � 0 U z � 0 x c� Z 0 J 1. THIS EASEMENT LIES WITHIN A FEDERAL EMERGENCY MANAGEMENT AGENCY DESIGNAT�D F'L000 PI.AIN OR PARCE L 3 5— D E —� FLOOD PRONE AREA AS OESIGNATED ON THE FLOOD INSURANCE RATE MAP FOR DENTON COUN7Y CtlMMUNITY PANEL 48121Cp370 G,EFFECTIVE DATE APRIL 98,2011, BEING A 46,054 SQ.FT./1.06 ACRE DRAINAGE EASEMENT IN THE JAMES EDMONSON ABSTRACT N0. 400, DENTON COUNTY, TEXAS � Graham Associates,lna. . CONSULTING ENGINEERS dc PI.ANNERS 800 SIX FL.AOS pRIVE, SUIiE 600 ARIINOTON, 7EXAS 70011 (817) E40-8838 79PE flRMc F-11o1/iBPLS flRA(� 10161B-Oq SURVEY, n GRAPHIC 3QALE 1"-100' 0 50 10p 150 DATE; FEBRUARY 2412 J/Denton/P35-OE-2 PAC,� 2 OF 5 "PROPERTY INTERESTS" EXHIBIT "C" - Page 4 of 12 SEE SHEET ,� i � ;, i ;, i �. � e i-' JACK ARI.YN PARKES � . , VOL . 4073, PG , 1207 � D,R,D.C,T, \ � �'' iQ0 Yq 1� \ � \ \ / / FLOOOPL.qTN \ ��—.i �� BASIS OF B�ARING IS NORTH AMERICAN DATUM NoT�S; SEE OF 1983 (NAD-83) S7ATE ALANE COORDINATE SYSTEM, 7EXAS NORTH CENTRAL, i _i � � I I I I I I I I I I � � I ,� �; � W � 0 0 0 4 � SHEET 3 � � �� a P�v � � a a a e- ie �5s� se�� R=852,50' T=96,67' L=192,51' Cb=SO6 '�8' 09 Lc=192,�0' � !. THIS EqSEMENT LIES WITHIN A FED�RAL EMERGENCY MANAGEMENT AGENCY �ESIGNATEO FLpOD PLAIN OR INSURANCENRATEEMAPSFORSDENTON COUNTYECOMMUNITY PpNEI. 48l21C0370 G, EpFECTIVE DA7E APRIt� 18, 201f, PARCEL 35—DE--2 BEING A 46,054 SQ.FT./.1.06 ACRE DRAINAGE EASEMENT SITUATED IN THE �AMES EDMONSON ABSTRACT N0. 400, DENTON COUNTY, TEXAS .^ Graham Associates,lnc. �CONSULTING ENGiNEERS dc PLANNERS aoo six Fuos oRivE, suire eoo MUNOTON� TE%A6 70011 (817) a40-86J6 TBPE flRMt F-1181/iBpL3 FIRMt 101638-00 SURVEY, � ORAPNIC SCALE f'-f00' 0 50 100 150 DAT�: FEBRUARY 2012 J/Danton/P35-DE-2 PAGE 3 OF 5 , \ `�, N2! '36' 50"W — l02,48' N01'17'40"W 155.49' TQMMY R. HOLAMON VOL, 5164, PG. 6A1 D.R.D.C,T. "PROPERTY INT�RESTS" EXHIBIT "C" - Page 5 of 12 N71•10'A7"E 70.67' �� ''. \� � �\\ �` sss � S \,�� \��\1 \ '� , '� �\�F �9 J �.` , . ��•\\ �, `.� � � `� `�,'� �,� �. `.\` .�� `` \ \ .� ��'� ` � \ / \ `\\�\ \ �`\ �/�c �`� . \ ,, �� \� ,� \� j � l .,� �� •., �.. J y ,;; �5� , - •. , y y'' Og �8„ W �49 �. -, S A � ,� i i �j . �' BASIS DF BEARING TS NOR7H AMERICAN DATUM OF 1983 (NAD-83) 5TATE PLANE COOROTNATE SYSTEM, TEXAS NORTH CENTRAL, �i � SEE SHEET 2 POINT OF' HEGINNTN'G JACK ARL.YN PARI<ES VOL, 4073, P�, 1207 D,R.D,C,T. 18q3� 4 533 '05' 49"W 54.95' . ,'�o1r, �F11C�oPV G% - -- ppP�X' P / / MARVIN HENDERSON ESTATE TRUST dOC. N0, 96-R0055800 D,R,D,C,T, / �, h / � � � 0 �� O � � NOTES; 1. THIS EASEMENT LIES WITHIN A FEOERAL EMERGENCY MANAGEMENT AGENCY DESIGNATED PLOOD PLAIN OR FLOOD PRONE AREA AS DESIGNATEO ON 7HE FLOOD INSURANCE RATE MAP FpR DENTON COUNTY CpMMUNITY PANEL 4812fC0370 G,EFFECTIVE DATE APRTL 18,2p11. PARCEL 35--DE-2 BEING A 46,U54 SQ.FT./1.06 ACRE DRAINAGE �ASEMENT STTUATED IN THE JAMES EDMONSON SURVEY, �"' ABSTRACT N0. 400, DENTON COUNTY, TEXAS � Graham Associates,lnc. ■ CONSULTING ENGINEERS � PLANNERS E00 SIX fLA03 DRIVE, 9UITE 600 AFtUNGTON, tE%AS 76q11 (817) 040-B6J6 TBPE flRAlt F-1191/TBpL3 �1RA�t IQ16�8-00 GRAPHIC SCpIE 1'=100' 0 b0 100 150 DATE: FEBRUARY 2012 J/Denton/P36-OE-2 Page 4 of 5 "PROPERTY INTERESTS" EXHIBIT "C" - Page 6 of 12 PARCEL 35-DE-2 LEGAL DESCRIPTION DRAINAGE EASEMENT Being a 1,06 acre tract of land situated in the James Edmonson Survey, Abstract No.400, Denton County, Texas and being a portion of that 42 acre tract of land conveyed to Jack Arlyn Parkes, as recorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a found 1/2 inch iron rod, said point being the southeast corner of a tract of land conveyed to Jack Parkes and wife Betty Parkes, as recoxded in Volume 5022, Page 3438, Deed Records, Denton County, Texas, and being in the existing west right-of-way line of Bonnie Brae Street (having a variable width R,O,W,), and the existing south right-of-way line of Roselawn Drive (having a variable width R,O.W,); THENCB South 89°29'48" East, leaving existing said west right-of-way line and along existing said south right-of-way line, a distance of 204,70 feet to a point £or corner, said point being in the pxoposed south right-of-way line of Roselawn Drive (having a variable width R,O,W,), also being the northeast corner of a tract of land conveyed to Jack Arlyn Parkes, save and except Tract 1, as reeoxded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, THENCE South 07°04'48" West, along said proposed south right-of-way line, and along east line of tk�e said save and except Tract 1, a distance of 16,83 feet to a point far corner; THENCE North 90°00'00" East, leaving said east line and continuing along proposed south right- of-way line, a distance of 315.51 feet to a point for corner, said point being the most northerly point of a corner-clip with the proposed west right-of-way line of Bonnie Brae Street (having a 95' R,O.W,); THENCE South 45°00'00" East, along said corner-clip, a distance of 28.28 feet to a point for corner; THENCB South 00°00'00" •East, along said proposed west right-of-way line, a distance of 755.40 feet to a point far corner, for the being the beginning of a tangent curve to the right having a radius o:F 852.50 feet, a central angle of 12°56'18" and a lozig chord which bears South 06°28'09" West, 192.10 feet; THENCE continuing along said proposed west right-of-way line, and along said tangent curve to the right, an arc distance of 192.51 feet to a point for corner; THENCE South 12°56'18" West, continuing along said proposed west right-of-way ]ine, a distance of 486.92 feet to a point for cornex; THENCE North 77°03'42" West, leaving said proposed west right-of-way line, a distance of 184.47 feet to a point for the POINT OF BEGINNING; THENCE South 33°OS'49" West, a distance of 54.95 feet to a point for corner; "PROPERTY INTERESTS" EXHIBIT "C" - Page 7 of 12 Page 5 of 5 THENCE South 74°08'18" West, a distance of 249.51 feet to a point for corner, said point being in the west line of said Jack Arlyn Parkes tract and being in the east line of a tract of land conveyed to Tommy R, Holamon, as recorded in Volume 5164, Page 641, Deed Records, Denton County, Texas, being a common line; THENCE North O1 °17'40" West, along said common line, a distance of 155,49 feet to a point for corner; THENCE Not�th 21°36'S0" West, continuing along said common line, a distance of 102,48 ;feet to a point for corner; THENCE North 71 °10'47" East, leaving said coinmon line, a distance of 70.67 feet to a point for corner; . THENCE South S6°54'11" East, a distance of 291.72 feet to the POINT OF BEGINNING and CONTAINING 46,054 square feet, 1,06 acres of land, anoxe or less, PAGE 1 OF 5 �m Q� m ^ a, Wa�ti �,, 1'?- n' U ¢ti ty, ¢: � a �o ¢ �-' �4 h4 �3 ; �~J � W� �� m� � �, ;Fl90�� , � '4H"F �de��n� � 507'04'48"W 15.83' POTNT OF COMMENCING FNO 1/2" I,fl SAVE 6 EXCEPT TRACT 1 JACK ARLYN PARKES VOL. 4073, pG. 1207 D.R.D.C,T. f: .;: m "PROPERTY INTERESTS" EXHIBIT "C" - Page 8 of 12 THE CHAMBERLAIN TRUST VOL. A522, PG, 1336 D.R.D.C.T. ROSET,AWN DRIV�' „ (VARIABLE WIpTH R.O;W,) Nso �oo � bo E , I � I � ` � I 'I � , ` I �' 1 �I �ai A� � EW-� i �� 546'00'00"E 20.28' .1 1 • , 1 � 1 � 1 � 1 L 1 �� a1 'p N�� 10•� 1 1; W 1� a I�� °I I 1 � ^ Ip�� Q� 1 � ;� �i l� I a � I� tt I � / � Q� n 1 1 ' � °' I w 1 � /�I i � � , 11 i � I � n � 1 I � � ! ° � � i -' -" - �. � i (A 1 . 1 i � •_.•�--�_.__,.--..,._._� —^_—_ 1 � , CROSSTEX �SMT � ' j VOL.5292, PG.]318 ' I i��...1._�_R_D.C.T._--�_ ._.__...--- I � i I � � ; ; � l_., - - � � �� ; � � I I I �H I � II � O � I I JACK ARLYN PARKES I I � �� ' I I VOL. 4073, PG, 1207 �� I � I D, R. D. C. T, � � � o�� I I � � o �`� I I ;� , � � � BASIS QF BEARING IS NORTH AMERICAN DATUM '� ; OF 1983 (NAD-83) STATE PLANE COOR�INATE SEE SHEET 2 SYSTEM, TEXAS NORTH CENTRAL, U z H z 0 H F- ¢ O Z �� O N �� .� � �ac� � .o p�OC � •d � J H � U � z � 0 U Z Q 0 z � z 0 J NOTES: 1, THIS EASEMENT LIE5 WITHIN A FEDERAL EMERGENCY MANAGEMENT AGENCY DESIGNATEO FLOOD PLAIN OR FL.00IJ PRONE AREA AS pESxGNATED ON THE FLOOD PAR C E L 3 5— D E — 3 PANELA46121C037qAG,EFFECTIVENDAT�NAPRILM]eN201�. BEING A 12,344 SQ.FT./0.28 ACRE DRAINAGE EASEMENT SYTUATED IN THE JAMES EDMONSON ABSTRACT N0. 400, DENTON COUNTY, � TEXAS � Graham Associates,lnc. . CONSULTiNG ENGINEERS dt PLANNERS E00 SIX FLAOS pRIVE, SUITE 600 iHPE Fl M� �11D1/iBPLS FlBRM� �1016J8 300 SURVEY, � �RAPHIC SCALE 1"�f00' 0 50 100 150 QATE: FEBRUARY 2012 J/oenton/P35-oE-3 PAGE 2 OF 5 "PROPERTY INTERESTS" EXHIBIT "C" - Page 9 of 12 SEE SHEET .� � ;' i , ,� i .• ;' � . i __i � I I I � I I �� =� ,JACK ARLYN PARKES � VOL, 4073, PG. 1207 ; �,R.O,C,T, \ '�� 100 YR `� �� / � FLOODPLAIN \ \��✓/ �\ NorES; SEE BASIS OF B�ARING IS NORTH AMERICAN DATUM OF 1983 (NAD-83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. 0 Q � u� � w 0 0 0 0 N i ��. �a �� d a 0 a a SHEET 3 s�ie° o� t� 2a�o •w io� 7, THIS EASEMENT LIES WITHIN A FEDERAL EMERGENCY MANAG�MENT AGENCY DESIGNATEp FLOOD PLAIN OR FLOOD PRQNE AREA AS DESIGNATEp ON THE FLOOD INSURANCE RATE MAP FOR DENTON COUNTY COMMUNITY PANEI. 4812�C037p G,EFFECTIVE DATE APRTL 18,2011, PARCEL 35--DE-3 � BEING A 12,344 SQ.FT./0.28 ACRE DRAINAGE �ASEMENT SITUATED IN THE JAMES EDMONSON SURVEY, � ABSTRACT N0. 400, DENTON COUNTY, TEXAS .^ Graham Associates,lnc. CONSULTING ENGINEERS dc PLANN�RS \LJ I EOD SIX FLA03 DRIVE, SUITE 600 �'V ARLINOTON, TENAS 78011 (917) E40-B6�5 7HPE FlRMo F-1161/T9PL9 FlRMc 101638-00 GRAPHIC SCALE f"-f00' 0 50 100 150 DATE: FEBRUARY 2012 J/Denton/P95-OE-3 �PAGE 3 OF 5 � y` 1\ 1� \ \`,\ �1 \ TOMMY R, HOLAMON VOL, 5164, P�. 641 D.R.D.C.T. 3 o� V� r� �� .,' z, "PROPERTY INTERESTS" EXHIBIT "C" - Page 10 of 12 SEE SHEET 2 ' JACK ARLYN PARKES " _ � VOL. 4073, PG, 1207 D,R,D,C,T. i ` _ . ;' i � � �� _ � ,` _. _ � ' S08 '54 � 19 " E NSGKOP� G,� 65.00' X �' ' �� 'PpP/ .1g'S1 • ' , ' N7�1�-�� '� / �g5,36' �'�' ', \ � . seo'1a' is°w � � . �� . % �.�� '',, �� \ � �� , S57 '03' 37 "W 1\\ 29.84' I � ± \��'' . . POINT OF ��•, . ,o'� ,.LA h�9 i . � � , BASIS OF BEARING IS NORTH AMERICAN DATUM OP 1983 (NAD-83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL, ,� 'q9 � h v �o 3 ro ti h IN � / I � � � �� O �a �� o' � � a MARVIN HENDERSON ESTATE TRUST / / DOC. N0, 96-R0055800 O,R,D.G,T. NOTES; S. 7HIS EASEMENT LIES WITHIN A FEDERAL EMEROENCY MANAGEMENT AGENCY CIESIGNATEp FLQOD PLAIN OR FLOOD PRONE AFiEA AS DE5TGNATED ON THE FLOOD INSURANCE AATE MAP FOR DENTON COUN7Y COMMUNITY PANEL 49f21C0370 G,EFFECTIVE DATE APRIL 18,201]. PARCEL 35—DE--3 BEING A 12,344 SQ.FT./0.28 ACRE DRATNAGE EASEMENT SITUATED IN THE JAMES EDMONSON SURVEY, � ABSTRACT N0. 400, DENTON COUNTY, TEXAS GRAPHIC 3CALE 1'�f00' � Graham Associates,lnc. 0 50 100 �50 � CONSULTING ENGIN�ERS � PLANNERS eoo six Fuos oRive, suir� soo MuNOTON, lEXAS 7ao11 (e17) e4o-e536 1HPE FlRMt F-11B1/iBPLS FlRA(t 1016J8-00 QATE: FEBRUARY 2012 J/Denton/P35-pE-3 Page 4 of 5 "PROPERTY INTERESTS" EXHIBIT "C" - Page 11 of 12 PARCEL 35-DE-3 LEGAL DESCRIPTION DRAINAGE EASEMENT Being a 0,28 acre tract of land situated in the James Edmonson Survey, Abstract No,400, Denton County, Texas and being a portion of that 42 acre tract of land conveyed to Jack Arlyn Parkes, as recorded in Volume 4073, Page 1207, De�d Records, Denton County, Texas, and being rnore particularly described as follows; COMMENCING at a found 1/2 inch iron rod, said point being the southeast corner of a tract of land conveyed to Jacic Parkes and wife Betty Parkes, as recorded in Volume 5022, Page 3438, Deed Records, Denton County, Texas, and being in the existing west right-of-way line of Bonnie Brae Street (having a variable width R.O.W,), and the existing south right-of-way line of Roselawn Drive (having a variable width R,O.W.); THENCE South 89°29'48" East, leaving existing said west right-of-way line and alang existing said south right-of-way line, a distance of 204,70 feet to a point for corn�r, said point being in the pxoposed south right-of way line of Roselawn Drive (having a variable width R,O, W.), also being the northeast coi-ner of a tract of land conveyed to Jacic Arlyn Parkas, save and except Tract 1, as recorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, THENCE South 07°04'48" West, along said proposed south right-of-way line, and along east line of the said save and except Txact l, a distance of 16.83 feet to a point for cornex; THENCE North 90°00'00" East, leaving said east line and continuing alang proposed south a•ight- of-way line, a distance of 315,51 feet to a point for corne��, said point being the most northerly point of a corner-clip with the proposed west right-of-way line of Bonnie Brae Street (having a 95' R,O,W,); THENCE South 45°00'00" East, along said corner-clip, a distance of 28.28 feet to a point for corner; THENCE South 00°00'00" East, along said proposed west right-of-way line, a distance of 755,40 feet to a point fox corner, for the being the beginning of a tangent curve to the right having a radius of 852.50 feet, a central angle of 12°56'18" and a long chord which bears South 06°28'09" West, 192.10 feet; THENCE continuing along said proposed west right-of-way line, and along said tangent curve to the right, an arc distance of 192.51 feet to a point for corner; THENCE South 12°56'18" West, continuing along said proposed west right-of way line, a distance of 761.45 feet to a point for corner, said point being in the south line of said 7ack Arlyn Parkes tract and being in the north line af a tract of land conveyed to Marvin Henderson Estate Trust, as recorded in Instrument No. 96-R0055800, Deed Records, Denton County, Texas, being a corrnnon line; THENCE South 80°10'16" West, leaving said proposed west right-of-way line, and along said cotnmon line, a distance of 225,36 feet to a point for corner; "PROPERTY INTERESTS" EXHIBIT "C" - Page 12 of 12 PageSofS THENCE South 57°03'37° West, continuing along said common line, a distance of 29.84 feet to a point for the POINT OF BEGINNING; THBNCE South 57°03'37" West, continuing along said common line, a distance of 159.24 feet to a point for coxner, said point being the southwest corner of said Jack Arlyn Parkes tract and being the southeast corner of a tract of land conveyed to Toimny R. Holamon, as recorded in Volume 5164, Page 641, Deed Records, Denton County, Texas, being a oommon line; THENCE North O1°17'40" West, leaving said north line of said Henderson tract, and along said common line, a distance of 120.00 feet to a point for corner; THENCE North 76°16'S1" East, leaving said common line, a distance of 130.00 feet to a point for corner; THENCE South 08°54'19" East, a distance of 65.00 feet to the POINT OF BEGINNING and CONTAINING 12,344 square feet, 0,28 acres of land, mare ar less, 0 S'� ' — PAG� ! OF 2 �m �; 3; �� d� a U CN \ ��, � i�� 31 O W ;�0 ;�?, t � �`' "PROPERTY INTERESTS" EXHIBIT "D" - Page 1 of 4 � l , , . -� -- !i r�----'-------'-'-rrjr.-'-- -��ri�'�n�---- - , . i;.�, ---- S07•OA'48°W 16.03' POINfi OF COMMENCING FNd i/2' I,q SAVE 6 EXCEPT TRACT i JACK ARLYN PARKES VOL. 4073, PG, 1207 D.R,O,C,T, - �- _ '.� - �� THE CHAMBEFLAIN TRUST VOL, 4522 PG, ]336 o.A.d.c.r. 590 '00' 00"E AL+ f1�1 � �r��-- -�rj r�--------- -. .�... � - — — Ii(iBEI:A�PN - I3RI1� - - , --- - ,�,��_,(VARIABLE_WIOTH_R�Q1W.,�--.-.�J�.,-------- - -- -.��: � % ` — — � __ , •. •AC � f�0�� I ai,di� \.�`C' i � 11.60' � �� POINT OF �S5�fi r14' 62"W BEGIKNING �` � `. \ j 34 . 54 ' , �� N40'25'30"W \\ � I 37,88' \ �I iQl � � � � � I I � � i a � / � i/ � / !' I / I �I I I I � I � I I �—��1-� I I I I- '-�� CROSSTEX ESMT ~ � � � �VOL.5292, PG.1318 II-�-�--D-R-D,C..L��.�.,_ L__J � I II i� �� II � � JACK ARLYN PARKES II VOL. 4073, PG. 1207 �� D.R,D,C,T, �� i; �i �� . _ 1 � 1 � 1 1 1 1 1 � < � l,p�N1 �„ Nal 1a• x� 1i� �1� a1 1 � � � H � (,1 � 1 � 1 � � 1 �1 � � `t � o � 1 � �� ' I � —. —.PQ_�.�,.�_ _ � � I II I I a°, I I � I I a I I � � � � I I I I I I I I I I U Z H z 0 M a 0 z a� O N �� ~ •� � v a c.i � o o . o�¢ m� . 0 J -� H � v? z � 0 � z � a z � Z 0 J BASIS OF BEARING IS NORTH AMERZCAN DATUM OF 1983 (NAD-83) STATE PLANE COOADINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 35--TCE-1 BEING A 876 SQ.FT./0..02 ACRE TEMPORARY CONSTRUCTION EASEMENT STTUATED IN THE JAMES EDMONSON SURVEY, � ABSTRACT N0. 400, D ENT 0 N C 0 UNTY�� T��S GRAPHIC SCALE i'=f00' Graham Associates,lnc. 0 5o ioo sso . CONSULTiNG ENGiNEERS dt PLANNERS eoo six Fuas oRive, suite soo ARIJNOTON, �x�s �eat� �at� e4o-s6�e TBPE FlRM: F-11D1/THPIS R t 1016J8-00 DATE; DECEMBER 2011 J/penton/p35-TCE-i Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "D" - Page 2 of 4 PARCEL 35-TCE-1 LEGAL DESCRIl'TION TEMPORARY CONSTRUCTION EASEMENT Being a 0.02 acre tract of land situated in the James Edmonson Survey, Abstract No.400, Denton County, Texas and being a portion of that 42 acre tract of land conveyed to Jack Arlyn Paxkes, as recorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, and being more particulaxly deseribed as follows: COMMENCING at a found 1/2 inch iron rod, said point being the southeast corner of a tract of land conveyed to Jack Parkes and wife Betty Parkes, as recoxded in Volume 5022, Page 3438, Deed Records, Denton County, Texas, and being in tha existing west right-of-way line of Bonnie Brae Street (having a variable width R.O,W.), and the exzsting south right-of-way line of Roselawn Drive (having a variable vvidth R,O.W.); THENCE South 89°29'�8" East, leaving existing said west right-of-way line and along existing said south right-of-way line, a distance of 204.70 feet to a point for corner, said point being in the proposed south right-of-way line of Roselawn Drive (ha�ving a variable � width R,O,W.), also being the northeast corner of a tract of land conveyed to Jack Arlyn Parkes, save and except Tract 1, as recorded in Volume A073, Page 1207, Deed Records, Denton County, Texas, THENCE South 07°04'48" West, along said proposed south right-of-way line, and alang east li:ne of the said save and except Tract 1, a distance of 16.83 feet to a point for corner; THENCE South 90°00'00" East, leaving said east line and continuing along pxoposed south right-of-way line, a distance of 81,87 feet to a point for corner, being the POINT OF BEGINNING; THENCE South 90°00'00" East, continuing along said proposed south right-of-way line, a distance of 46,83 feet to a point for corner; THENCE South 33°45'08" East, leaving said proposed south x7ght-of way line, a distance of 11,60 feet to a point for corner; THBNCE South 56°14'S2" V�est, a distance of 34.54 feet to a point for corner; THENCE North 40°25'30" West, a distance of 37.88 feet to the POINT OF BEGINNING and CONTAINING 876 squaxe feet, 0.02 acxes of land, more or less, PAGE 1 OF 2 �m z°�'a -ra � �' � �� w°�� e; 2�'1��.4U �i th � �� QWCVO �r� ym0� tii �� 3� ?M �O ,�ml, �� , � •..--- �r,.�. -- --------- ,- r�\ / RRQ'OQ' dR"F-��(16�7(1"' _' _ _ _ _ _ t __'%' S07•OA'48"W 16.83' POTNT OF COMMENCING FND 1/2" I.R SAVE & EXCEPT 7RACT 1 JACI< ARLYN ?ARKES VOL. 4073, PG, 1207 o,a,o.c,T, _!I i - _� � "PROPERTY INTERESTS" EXHIBIT "D" - Page 3 of 4 THE CHAMBERLAIN TRUST VOL, 4522, PG. 1336 p.R,D.C.T. �so •oo�oo��E � 33.00' , OF T ^ �--�ijr�----- �- - - � '"--R`OSEI;A;PPN-I3RI{�E---- � • f�NG�-� '� (j_�VARI�BLE_ WID7H_ R,9JY��1------��1��--------- �----�1., _v � , �` 70�� ' � 'A3'31"E 11 02' N00'13'31"W '�� I 'I, ' I 11. 6' � �. �L589'46'29"W �� 33, 00' \ �� I \\ � I �AI � I I I � j � I Pi � i i� � i i�/ I I , � �� / I � � � � � � — -- -�_ � � I � �� —I� CROSSTEX ESMT ! � � � �VOL,5292, PG.1318 II � _. _L -L- ._ D�R . Q , c . L _. ._.. _ — l� — — � I I � � II �� i � � JACK ARLYN PARKES II VOL . A073, PG . 1207 �( D,R,D,C.T. �� , r� �i �, � 1 , 1 � 1 � � 1 L 1 1�oWN1 ��7 N�� to• � `1� W�1` 1 � 1 � H �1 I11 �1 � � , � � 1 � ` � �� 1 � --�Q 1 1 � ^ 11� _ ��. _ I I � I II � ( p°,, I I � � � a I I I I � � I I I I I I I I I I� U z H Z 0 H � a a z �� N l� � F" • F- �� . � �. U N O O �� 00 0 J --� �,.a o U � z � O U Z � 0 x co z 0 J BASIS OF 6EARING I5 NORTH AMERICAN DATUM OF 1983 (NAD-83) STATE PLANE COORI]TNATE SYSTEM, TEXAS NORTH CENTFAI., PARCEL 35—TCE-2 BEING A 366 SQ.FT. 0.0 �. ACRE TEMPORARY CONST UCTION EASEMENT SITUATED IN THE JAMES EDMONSON SURVEY, r"' ABSTRACT N0. 400, DENTON COUNTY, TEXAS _ � Graham Associates,lnc, ■ CONSULTING ENGINE�RS dc PLANNERS aoo six �..�os oaivE, sui� 600 ARLINO70N, TEXA6 78011 (817) E40-8636 THPE FlRM� F-1101/iBPLS FlRMt 101638-00 ——— — i � � � � � .� �� DATE; DECEMBER 2011 J/Denton/P95-TCE-] Page2of2 "PROPERTY INTERESTS" EXHIBIT "D" - Page 4 of 4 PARCEL 35-TCE-2 LEGAL DESCRTPTION TEMPORARY CONSTRUCTION EASEMENT Being a 0.01 acre tract of land situated in the James Edmonson Survey, Abstract No.400, Denton County, Texas and being a portion of that 42 acre tract of land conveyed to Jack Arlyn Parlces, as recorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, and being more pat�ticularly described as follows; COMMENCING at a found 1/2 inch iron rod, said point being the southeast corner of a tract oi land conveyed to Jacic Parkes and wife Betty Parkes, as recorded zn Volume 5022, Page 3438, Deed Records, Denton County, Texas, and being in the existing west right-of-way line of Bonnie Brae Street (having a variable width R.O.W.), and the existing south right-of-way line of Roselawn Dri�re (having a variable width R,O,W.); THENCE South 89°29'48" East, leaving axisting said �rest right-of-way line and along existing said south right-of-way line, a distance of 204.70 feet to a point for corner, said paint baing in the proposed south right-of-way line of Roselawn Drive (having a variable width R,O.W.), alsa being the northeast corner of a tract of land conveyed to Jack Arlyn Parkes, save and except Tract 1, as recorded in Volume 4073, Page 1207, Deed Records, Denton County, Texas, THENCE South 07°04'48" West, along said proposed south right-of-way line, and along east line of the said save and except Tract 1, a distance of 16.83 feet to a point for corner; THENCE South 90°00'00" East, leaving said east line and continuing along proposed south right-oi way line, a distance of 158.70 feet to a point for corner, being the POINT OF BEGTNNING; . THENCE South 90°00'00" East, continuing along said proposed south right-of-way line, a distance of 33,00 feet to a point for corner; THENCE South 00°13'31" East, leaving said proposed south right-of-way line, a distance of 11.02 feet to a point for corner; THENCE South 89°46'29" West, a distance of 33.00 feet to a point for corner; THENCE North 00°13'31" West, a distance of 11.15 feet to the POINT OF BEGINNING and CONTAINING 366 square feet, 0,01 acres of land, more or less, Iluudllu+��nd;lliiu mll Ilu��um�� : AGENDA INFORMATION SHEET AGENDA DATE: December 4, 2012 DEPARTMENT: Utilities ACM: Howard Martin, 349-8232 ��' SUBJECT Consider adoption of an ordinance finding that a public use and necessity exists to acquire through the exercise of the right of eminent domain (I) fee simple to the surface estate, with waiver of surface use related to the nuneral estate, of an approximate 0.07 acre tract of real property; (II) a utility and slope easement encumbering a 0.07 acre tract of real property; (III) a utility and drainage easement encumbering a 0.01 acre tract of real property; (IV) a drainage easement encumbering a 0.03 acre tract of real property (V) a slope easement encumbering a 213 square foot tract of real property; and (VI) a temporary constniction, grading and access easement encumbering a 0.08 acre tract of real property, for the public use of expanding and improving Bonnie Brae Street, a municipal street and roadway located in the City of Denton, Texas, generally located in the 2200 blocic of South Bonnie Brae Street, and situated in the O.S. Brewster Survey, Abstract Number 56, City of Denton, Denton County, Texas, as more particularly described in Exhibit "A", Exhibit "B", Exhibit "C", Exhibit "D", Exhibit "E" and Exhibit "F", respectively, each attached hereto and made a part hereof (collectively, the "Property Interests"); authorizing the filing and prosecution of eminent domain proceedings to acquire the Property Interests; authorizing the expenditure of funds therefore; malcing findings; providing a savings clause; and providing an effective date. (Parce124 — Watts - Bonnie Brae Widening and Improvements proj ect) BACKGROUND Ongoing negotiations with the affected property owner for the subject land rights necessary for the Bonnie Brae Widening and Improvements project have reached an impasse. Approval of the subject ordinance authorizes staff to acquire the land rights necessary by way of the exercise of the City's enunent domain authority. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) March 6, 2012 — Executive Session March 6, 2012 (initial offer to purchase Ordinance 2012-061) August 21, 2012 (final offer to purchase Ordinance 2012-186) FISCAL INFORMATION The overall Bonnie Brae Widening and Improvements project is being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRII' `08) funds and City of Denton local match funds. The overall costs for the Property Interests sought, as to be determined via eminent domain proceedings, are to be funded through a combination of these funding sources. BID INFORMATION Not applicable EXHIBITS 1. Location Map 2. Ordinance Prepared by, � � �.�� Paul Williamson, Real Estate Manager Respectfully subnutted, �� Franlc G. Payne, P.E. City Engineer �ocation Map WATTS - P24 EXHIBIT 1 attachment to AIS Bonnie Brae Widening and Improvements a EXHIBIT 2 attachment to AIS s:\legal\our documents\ordinances\12\watts condemnation ord-finaLdoc ORDINANCE NO. AN ORDINANCE FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE THROUGH THE EXERCISE OF THE RIGHT OF EMINENT DOMAIN (I) FEE SIMPLE TITLE TO THE SURFACE ESTATE, WITH WAIVER OF SURFACE USE RELATED TO THE MINERAL ESTATE, OF AN APPROXIMATE 0.07 ACRE TRACT OF REAL PROPERTY; (II) A UTILITY AND SLOPE EASEMENT ENCUMBERING A 0.07 ACRE TRACT OF REAL PROPERTY; (III) A UTILITY AND DRAINAGE EASEMENT ENCUMBERING A 0.01 ACRE TRACT OF REAL PROPERTY; (IV) A DRAINAGE EASEMENT ENCUMBERING A 0.03 ACRE TRACT OF REAL PROPERTY (V) A SLOPE EASEMENT ENCUMBERING A 213 SQUARE FOOT TRACT OF REAL PROPERTY; AND (VI) A TEMPORARY CONSTRUCTION, GRADING AND ACCESS EASEMENT ENCUMBERING A 0.08 ACRE TRACT OF REAL PROPERTY, FOR THE PUBLIC USE OF EXPANDING AND IMPROVING BONNIE BRAE STREET, A MUNICIPAL STREET AND ROADWAY LOCATED IN THE CITY OF DENTON, TEXAS, GENERALLY LOCATED IN THE 2200 BLOCK OF SOUTH BONNIE BRAE STREET, AND SITUATED 1N THE O.S. BREWSTER SURVEY, ABSTRACT NUMBER 56, CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED 1N EXHIBIT "A", EXHIBIT "B", EXHIBIT "C", EXHIBIT "D", EXHIBIT "E" AND EXHIBIT "F", RESPECTIVELY, EACH ATTACHED HERETO AND MADE A PART HEREOF (COLLECTIVELY, THE "PROPERTY 1NTERESTS"); AUTHORIZING THE FILING AND PROSECUTION OF EMINENT DOMAIN PROCEEDINGS TO ACQUIRE THE PROPERTY INTERESTS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; MAKING FINDINGS; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas (the "City") has initiated the widening and expansion of Bonnie Brae Street affecting, among other lands and interests, the Property Interests; WHEREAS, the widening and expansion of Bonnie Brae Street constitutes a valid public use of the City and its citizens; WHEREAS, the City made a written Initial Offer (herein so called) to Christopher M, Watts, the owner of the Propei-ty Interests (the "Owner") on March 13, 2012; WHEREAS, the City provided to the Owner of the Property Interests at the time of presenting the Initial Offer, by certified mail, return receipt requested, all appraisal reports produced or acquired by the City relating speciiically to the Owner's property prepared in the ten (10) years preceding the date of the Initial Offer; WHEREAS, the Initial Offer made by the City to the Owner of the Property Interests did not include a confidentiality provision and further informed the Owner of the Property Interests that such Owner had the right to (i) discuss any offer or agreement regarding the City's acquisition of the Property Interests with others; or (ii) keep the offer or agreement confidentiai, unless the offer or agreement would be subject to Chapter 552 of the Texas Government Code (the "Non Confidential Notice"); WHEREAS, the City made a written Final Offer (herein so cailed) to the Owner of the Property Interests on August 29, 2012, said date being after the thirtieth (30th) day after the date on which the City made the Initial Offer to the Owner of the Property Interests; WHEREAS, along with such Final Offer, the Owner of the Property Interests was provided a written appraisal from a certified appraiser of the value of the Propei�ty Interests and the damages, if any, to any of the Owner's remaining property; WHEREAS, the Final Offer made to the Owner of the Property Interests was equal to or greater than the amount of the written appraisal obtained by the City; WHEREAS, the Final Offer made to the Owner of the Property Interests included (i) a copy of the written appraisal; (ii) copies of the (a) special warranty deed; (b) utility and slope easement; (c) utility and drainage easement; (d) drainage easement; (e) slope easement; and (� a temporary construction, grading and access easement, all being the instruments proposed to convey the Property Interests sought to be acquired by the City; (iii) the Landowner's Bill of Rights statement prescribed by Section 21.0112 of the Texas Property Code; and (iv) the Non Confidential Notice; WHEREAS, the City provided the Owner of the Property Interests at least fourteen (14) days to respond to the Final Offer and the Owner of the Property Interests did not agree to the terms of the Final Offer within that period; WHEREAS, the notice for the public meeting of the City Council of the City in which this Ordinance is considered, as required by Subchapter C, Chapter 551, of the Texas Government Code, in addition to other information as required by that subchapter, expressly included the consideration by the City of Denton of the use of eminent domain to condemn the Property Interests; WHEREAS, in ordaining the matters set forth herein, the motion to pass and approve this ordinance was stated as "I move that the City of Denton, Texas authorize the use of the power of eminent domain to acquire (1) fee simple to the surface estate, with waiver of surface use related to the mineral estate, of 0.07 acre of real property; (2) a utility and slope easement encumbering 0.07 acre of real property; (3) a utility and drainage easement encumbering 0.01 acre of real property; (4) a drainage easement encumbering 0,03 acre of real property; (5) a slope easement encumbering 213 square feet of real property; and (6) a temporary construction, grading and access easement encumbering 0.08 acre of real property; generally located in the 2200 blocic of South Bonnie Brae Street, located in the O.S. Brewster Survey, Abstract 56, and being more particularly described in Exhibit "A", Exhibit "B", Exhibit "C", Exhibit "D", Exhibit "E" and Exhibit "F", respectively, to the ordinance now under consideration and on the overhead screen being now displayed to the audience, for the public use of Bonnie Brae Street improvements and expansion, a street or roadway in the City of Denton, Texas"; and � WHEREAS, after due consideration of the public interests to be furthered by the public use of municipal street and roadway improvements and expansion related to Bonnie Brae Street; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAlNS: SECTION 1. The Council finds that a public use and necessity exists to widen and improve Bonnie Brae Street to serve the citizens of the City of Denton, Texas, and that the public welfare and convenience requires the acquisition of the Property Interests, and the City of Denton, Texas does hereby exercise its home-rule and statutory authority to acquire by eminent domain, (1) fee simple to the surface estate, with waiver of surface use related to the mineral estate, of 0.07 acre of real property, as described on Exhibit "A", attached hereto and made a part hereof by reference; (2) a utility and slope easement encumbering 0.07 acre of real property, as described on Exhibit "B", attached hereto and made a part hereof by reference; (3) a utility and drainage easement encumbering 0.01 acre of real property, as described on Exhibit "C", attached hereto and made a part hereof by reference; (4) a drainage easement encumbering 0.03 acre of real property, as described in Exhibit "D", attached hereto and made a pat�t hereof by reference; (5) a slope easement encumbering 213 square feet of real property, as described in Exhibit "E", attached hereto and made a part hereof by reference; and (6) a temporary construction, grading and access easement, encumbering 0.08 acre of real property, as described in Exhibit "F", attached hereto and made a part hereof by reference. The Council hereby further finds and determines that the acquisition of the Property Interests is for a public use, to serve the public and the citizens of the City of Denton, Texas. SECTION 2. The Council hereby authorizes and directs the iiling and prosecution of eminent domain proceedings by the City of Denton, Texas to acquire the Property Interests. SECTION 3. The City Council hereby finds that the Owner is the record title owner of said Property Interests. Without limiting the general authorization provided in Section 2, above, the City Council further authorizes joinder of additional or differing owner or owners, or claimant or claimants, of the Property Interests, if applicable, in the eminent domain proceedings, and to condemn the interests of each such parties to acquire the Property Interests, SECTION 4. The City Manager, or his designee, shall have the authority to do all things necessary or appropriate to acquire the Property Interests by eminent domain, including without limitation, the authority to expend funds related to the prosecution of such eminent domain proceedings. SECTION 5. The recitals provided in this Ordinance, as set forth above, are specifically and expressly adopted by the Council as express findings by the Council. SECTION 6. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained 3 such remaining portion despite such invalidity, and such remaining portion shali remain in full force and effect. SECTION 7. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2012. ATTEST: JENNIFER WALTERS, CITY SECRETARY : APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY .� � � ,- � , . , ,s < ,r, ,° f !� / By� � { ..,_ __ _....._.t . .,,,.�. MARK A. BURROUGHS, MAYOR � FEE SIMPLE "PROPERTY INTERESTS" EXHIBIT "A" - Pa�e 1 of 2 PacE x oF 2 ,: i,. .:-;:;�� `,; �� )' � j�n ; �� - ^ �., .:��;� ��:� LOT i i?�;� �; � JEAN M. G, TUNNELL 6 �j�� J AGNES H. ROGERS l<:;�. cu::, ��:.;,>,��k�� VOL. 994, PG, 652 ,��: �;,a D,R.�.C.T. c=� ��,. ,?}>>a o � �� `t� N70314034 E PpOZ 1g6 Y�P� P�'� . 9�� 0P P � •c�i r SET i/2" I,R'� W/GAI CAP a= a •4a � 2s ° R=1047.50' T=43,97' L=87.88' Cb=NQe'�9'23"W ��e7.es� SET 1/2" I.R, 2215 S. BONNIE BRAE W�GAI CAP LOT 2 CHRISTOPHER M. WATTS VOL. 5102, PG, 2398 D.R,D,C.T. s�< q CA�� qy . �. 9 � c q��T . �4 I N�.O °43' 36"W 84.19' POINT OF �'�' BEGZNNYN(�� SET 1/2' I.R. W/GAI CA� �� , / - `• POTNT 0�'- -- COMMENCTNG FNO 1��° z,a P220 S, BONNIE BRAE LO7 3A JONN P. DANSBY VOL. l584, PG, 989 �.R.D,C,T, NOTE: SET 1/2" T,R, W/ GAI CAP TO BE SET AT END OF CON5TRUCTTON. 4� � � � ;� �� o�i h ti ; � s � � � � lI7 i �I� ; � ei � . , O ' � � � � � �• I , _a, ti � ; ;;:' ;, . ;,>�.; .�:;:>; � �2�=;�j>• ,,«l; , ��.,`�,. �,�� ,�\ , �� ; �\��. c�.� ,�OO'. << ��_,..� �� \ ( \�... y ,. � ? �1 2324 HIGHLAND PARK R� ti Z I MII.TON e. CLEARMAN & � J SPOUSE, ANITA A. CL�ARMAN Vpl.. 4437, PG. 2219 � y. ' D.R.�.C,T, �w �> ;d ; � � � \� � � � �' . --. . : � �� .. ; -�{�n.._ � � .I � � • � � _ 1_ IN ..1 �._"_ '_ . i "_ _'_""'_'.-.,�,� . i o � n ; �„� w ' � ' � � I�r � ' i � ti � � ti " t'� � � � � � , ��, Z 3 i J, � o� _ ; � � � � ' �� F� O � � H ; i 3 � J l � ryp� m� �w~ � � ¢ � �jCh, � ; �R � � � i� � � � �I� ______�aJ�.,____(VARIABLE WIOT�-If�,O.W.) w t'� o ��¢ � � ~ 0 � H � � J a m a a H a > � � ��-� HARI.AN PFOPERTIES, INC. VOL, 4704, PG. 1297 p.R,D.C.T. BASIS OF BEARING IS NORTH AMERIGAN DATUM OF 1983 (NAD-83) STAT� PLANE COORDINATE SY5TEM, TEXA5 NORTH CENTRAL. PARCEL 24-ROW-1 BEING 2,841 SQ.FT./0.07 ACRE SITUATED IN THE O.S. BREWSTER SURVEY ABSTRACT N0. 56 DENTON COUNTY, TEXAS � Graham Associates,lnc. . CONSULTING ENGINEERS & PLANNERS eoo six Fucs pRwE, sui� 600 ARLINOTON, TEXAS 7E011 (817) 6�40-8638 TBPE FlRM: F-1101/iHPLS FlRM7 101638-00 n SCALE: 1 "= 60' DATE� MARCH 2O12 J/Oenton/P24-ROW-i Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "A" - Page 2 of 2 PARCEL 24-ROW-1 LEGAL DESCRiPTION BEING a 0.07 ac�•e tract of land situated in the O,S. Bxewster Survey, Abstract No. 56, Denton County, Texas, baing a portion of Lot 2, Solar Way Addition as recorded in Cabinet H, Page 44, Plat Records, Denton County, Texas, and being conveyed by deed to Christopher M. Watts, as recorded in Volume 5102, Page 2398, Deed Records, Denton County, Taxas and being more particularly described by metes and bounds as follows; COMMENCING at a found 1/2 inch iron rod, said point being the southeast corner of said Lot 2, and being the noi�theast corner of Lot 3A, of said Solar Way Addition, and being conveyed to John Dansby as recoxded in Volume 1554, Page 969, Deed Records, Denton County, Texas, and being in the existing west right-of way line of Bonnie Brae Street (havzng a variable width R.O.W.); THENCE North 00°17'S4" East, along said existing west right-of-way line, a distance of 70.20 feet to a set 1/2 inch iron rod with GAI cap for corner, for the POINT OF BEGINNING, said point being in the proposed west right-of-way line of said Bonnie Brae Street; THENCE North 10°43'36" West, leaving said existing right-of-way line and along said proposed right-of-way line, a distance of 84.19 feet to a set 1/2 inch iron rod with GAI cap for corner, for the beginning of a tangent curve to the right having a radius of 1047.50 feet, a central angle of 4°48'26", and a long chord which bears North 08°19'23" West, 87, 86 feet; TIIENCE along said proposed west right-of-way line and along said tangent curve to tha right, an arc distance of 87,88 feet to a set 1/2 inch iron rod with GAI cap for corner, said point being in the north line of said Lot 2, and being in the south line of Lot 1 Solar Way Addition as xecorded in Cabinet B, Page 196, Plat Records, Denton County, Texas and being conveyed by deed to Jean M,G. Tunnell and Agnes H. Rogers, as xecorded in Volume 994, Page 652, Deed Records, Denton CounTy, Texas, being a common line; THENCE Noi�th 70°54'54" East, leaving said proposed wesi rigl�t-of-way line and along said common line, a distance of 31,03 %et to a point for corner, said point being the noxtheast coruer of said Lot 2 and also being in the said existing west right-of-way line Bonnie Brae Street; THENCE South 00°17'54" West, leaving said common line and along said existing west right-of-way line, a distance of 179.80 feet to the POINT OF BEGINNING and CONTAINING 2,841 square feet, 0.07 acres of land, more or less. �� !''�.,� • G1 �'n r � � , �--�' � ��: ¢ '�' R�`tj :�� f vu e.ir�r , Ad_L �•PE�ERSQN ,t,.':�,0 5999��:'0� �;�'�;�•�:� s s...�°_�-�.G, r2.{!V L PAGE 1 OF 2 ,r:�'� , �;�,�� L �� fi1} e "PROPERTY INTERESTS" EXHIBIT "B" - Page 1 of 2 3 0 � �;.��%��. JEAN M. G�TTUNNELL & w 0 ��,�L� AGNES H. ROGERS a `� �,1�=' VDL. 994, PG. 652 0 ��, ��S D.R.D.C.T. a �J f�i� �i�,� �,J��' °:�.`�° `�J N89 '09' 57"E �tioN �s.12' PpOti 1g6 P� G • 5��A6P p, .� G � 1 � � � A= 2'56' 13:' ��\ R=1063.50' �� 7=27.26' ' 1\ � . Cb5N09115'30"W h Lc=54.51' , 2216 S, BQNNIE LOT 2 CHRZ570PHER M. VDL . 5102, PG . D,R,D.C.T. so� �4 cA�q �q , y �- 90 ,c . .. � BRAE � WATTS �t\ ' 2398 ♦ W� `' / � ! i /� �' � � E-� i �� u�� \ N1 i �i ; � � ., � �.�� '�� ,� , . ��/ .� ; � t �� o; i � . � �Q, � , , z: , �: � o, .., � H i � � � , ' w' ti ��a ti Qi , a� � t-t � � i � i ' � � � ; ��y . ,�G 'I � , � ; W � i � � � � � i � � � � , : � � ti , � � � � � � � � i � r � I I� i � i � �J :r �W �> kI� i� SBB '33' 56".Vl. _2.61 ' POINT_ OF__� BEGINIVING FND ]/2" T.R 2220 S. BDNNIE BRAE L07 3A JDNN P. bANSBY VOL. 1554, PG. 969 �.R.p,C,7. `�� `'�1� 1 � �� ;� Ryl`n �r \'�`�o S� �.. ��;;,��.>- ,��D C�� f�� `��•,� "`e�,4i A= 2'49'48" R=1047.50' T=25.88' L=51.7A' Cb=S09'!8'42"E Lc=51.73' 2924 HIGHLAND PARK RD MILTON B. CLEARMAN & SPOUSE, ANITA A. CLEARMAN VOL. 4437, PG. 2213 D.R.D,G,T. IS10'43'36"E 84.19' / � /�f'/ -\' � / �, '-`. �.`. / �� \'� �._ � � '�' � _ �'J�Q��'��'rJ4��'i"r�.-r�-___ �_"--- r ' 70. �G� � �-_'--` GHLAND PAi�� ROAD ,----_____.../la,,__.._(VARIA6LE WIOT�ilft_O,W.) ,L��,Lj H W t'� o �¢ � =W T ��o H � � � J a+ m a a H ¢ a > O v � _ _I�� ..�--- HARLAN PROPER?IES; INC, VOL. 4704, PG. 1297 D.R.O.C.T. BA5T5 OF BEAAING IS NORTH AMERICAN pATUM OF 1983' (NA�-89) STATE PLANE CDORDINATE SYSTEM, 7EXAS NORTH CENTRAL. PARCEL 24—USE-�1 BEING A 2,837 SQ.FT./0.�7 ACRE UTILTTY & SLOPE EASEMENT SITUATED ZN .THE O.S. BREWSTER SURVEY ABSTRACT N0. 56 DENTON COUNTY, TEXA.S � Graham Associates,lnc. ■ CONSULTING ENGINEERS dc PLANNERS aoo,six Fl.acs oRwE, sui� soo �wuNcroN, tdus �ao» (e�� e4o—es� 7HPE FlRAI: F-1161/'fHpLS FlRMt 101 6 38-00 n SCALE; 1"= 60' DATE: JULY 2011 J/penton/P24-USE-f Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "B" - Page 2 of 2 PARCEL 24-USE-1 LEGAL DESCRIPTION UTILITY & SLOPE EASEMENT BEING a 0.07 acre tract of land sihzated in the O.S, Brewster Su�vey, Absh•act No, 56, Denton County, Texas, being a po�•tioxi of Lot 2, Solar Way Addition as recorded in Cabinet H, Page 44, Plat Records, Denton County, Texas, and being conveyed by deed to Christopher M, Watts, as xecox•ded in Volume 5102, Page 2398, Deed Records, Denton County, Texas and baing more particularly described by metes and bounds as follows; BEGINNING at a found 1/2 inch iron rod, said point being the southeast corner of said Lot 2, and being the noi�theast corner of Lot 3A, of said Solar Way Addition, and being conveyed to John Dansby as recorded in Volume 1554, Page 969, Deed Records, Denton County, Texas, and bein� in the existing west right-of way line of Bonnie Brae Street (having a variable width R.O,W.); THENCE South 88°33'S6" West, leaving said existin� west right-of-way line and along the south line of said Lot 2, a distance of 2.61 feet to a point for cornei; TI-IENCE North 10°43'36" West, leaving said south line, a distance of 152,6'1 feet to a point for corner, for the beginning of a tangent curve to the right having a radius of 1063.50 feet, a cantral angle of 2°56'13", and a long chord which bears North 09°15'30" West, 54.51 feet; THENCE along said tangent cuive to the right, an arc distance of 54.51 feet to a point for corner; THENCE North 89°09'S7" East, a distance of 16.12 feet io a point for co�•ner, for the beginning of a non-tangent cuive to the left having a radius of 1 �47.50 feet and a central angle of 2°49'�48" and a long chord which bears South 09°18'42" �ast, 51.73 feet, said point being in the proposed west right-of-way line of Bonnie B�•ae Steeet (having a variable width R.O.W,); TH�NCl� along said proposed west right-of-way line and along said non-tangent curve to the left an arc distance of 51,74 feat to a point for corner; THENCE South 10°43'36" East, continuing along said p��oposed west right-of way line, a distance of 84.19 feet to a point for corner, said point being in the existing west right-of way line of said Bonnie Brae Street; THENCE South 00°17'S4" West, along said existiuxg west right-of way line, a distance of 70.20 feet to the POINT OF BEGINNING and CONTATNING 2,837 sguare feet, 0.07 acres of land, more or less, �72.ZS• ZOIZ. "PROPERTY INTERESTS" EXHIBIT "C" - Page 1 of 2 PAGE 1 OF 2 //� S� � \� �`��.r�'� �i' <y ` ��/ '«� JEAN M. G07TUNNELL 6 <°�'6' � � ��;� � AGNES H. ROGERS �.1? VOL. 994, PG. 652 `•� �n�!3?�'� D.R.D.C.T. ��1�� N70'54'54"E —� y.�°;. c�.. 16 . 43' �,�tipN �p0 1g6 P� G • 5��p0P P � c�- � 0 � °w N 0 a lo � 0. � � � � � � � � � � �, �` i ti / `� ' � � \ ' � 1 � � l � �/ 589'09'57"W 3 ; / I 16.12' o ; 0= 1'40'07"--� POINT OF ¢ ` R=1063.50' H ;. T=15. as � BEGINNTNG � � L=30.97' �' � Cb=N06'57'20"W e= 2•.as�4e° w � Lc=30.97' a=ioa�.eo� r I T�25.BB' ° ' L=51.74' � � Cb=N09'18'42"W � L�=51.73' w� � � � o� � b �` 2216 5. BONNIE BRAE � � LOT 2 a �,/; CHRIS70PHER M. WATTS ; VOL. 5102, PG. 2398 �'"�~ � D.R.D.C.7. � "o ``•� so �'qq9 .o� �'q y� 90 A�oo � t �� v'�j�� , <<a�� c��J �` ^�,��7`�4;i" U��S��• �,� C;;� A= 1'58'37" ��'�`�� R=1047.50' ` 2�� T=1B.07' �� L=36.15' Cb=506 '54 ' 29 "E l..c=36, 14' 2324 HIGHLAN� PARK RD MILTON 8. CLEARMAN 6 SPOUSE, ANITA A. CLEARMAN ' VOL. 4437, PG. 2213 D,R.D,C,T, ' ��% �� .� / ,. „' " `- ` �. � � \� i '� � � / � '� � �' ._ _ � �-=+� _ - _.._..__.i �r,---�-�'=�_�_.�.i'_----�-- � �, N � i � / o ; � / �` � � � ,�' �� Q ; w � ' �� r � `, � �' � �' ,, � '' ��`.� / � . � H ' , '' \ /� o ` � , _ z ,[�] , � '7 3 Q� • �'v �.t, :- POINT Q�'----- COMMENCING FND 1/2" I,F 2220 S. BDNNI� BRA� LqT 3A JOHN P, DANSBY VDL. 1554, PG. 969 D.R.D.C.T. ., , ; �q; ¢: � �: �� o: �� H i � � 3 � � i ; w� ��m S,�H 7 ti Q i '• a � ,�,, � , � � 1 � � � � � t C/� , � I � i i � � ; �..__._______�Lla�--•--IVARIABLE WIO7ji1.�?�� Wt�____. � w Ha �� ~ O ° 3 0 � J a m � a H a > O y � / � HARLAN PROPERTIES, INC, VOL. 4704, PG. 1297 D.R.fJ.C.T. BASTS DF BEARING IS NORTH AMERICAN DATUM OF 1963 (NAD-83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CEN7RAL. PARCEL 24—UDE--1 BEING A 537 SQ.FT./0.01 ACRE UTILITY & DRAIYVAGE EASEMENT SITUATED IN THE O.S. BREWSTER SURVEY ABSTRACT N0. 56 , DENTON COUNTY, TEXAS � Graham Associates,lnc. . CONSULTING �NGINEERS dc PLANNERS 800 SIX FtACS DRIV�, SUIiE 500 ,nHUNOroN. rocns �san (at� e4o-e�ss 7BPE FlRM: F-11G1/iBPLS FlRM: 101638-00 n SCALE; 1"= 60' DATE: JULY 2011 J/Denton/P24-UOE-i Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "C" - Page 2 of 2 PARCEL 24-UDE-1 LEGAL DES.CRIPTION UTILITY & DRAINAGE EASEMENT B�ING a 0.01 acre h�act of land situated in the O.S, Bx�ewstez• Survey, Abstract No, S6, Denton County, Texas, being a portiou of Lot 2, Solar Way Addition as recorded in Cabinet H, Page 44, Plat Records, Denton County, Texas and being conveyed Uy deed to Chi•istopher M. Watts, as recorded in Volume 5102, Page 2398, Deed Records, Denton County, Texas and being more particularly described by metes and bounds as follows: COMMENCING at a found 1/2 inch i�•on �•od, said point being the southeast corner of said Loi 2, and beuig the noi�theast corner of Lot 3A of said Solar Way Addition, and being conveyad to John Dansby as recorded in Volurne 1554, Page 969, Deed Records, Denton County, Texas, and being in the existing west right-of-way line of Bonnie Brae Street (having a variable width R.O.W,); THENCE Noi�th 00°17'54" �ast, along said existing west right�of way line, a distance of 70,20 feet to a point for corner, said poizrt being in the propased west right-of-way line of said Bonnie Brae Street; THENC� Noi�th 10°43'36" West, leaving said existing xight-of-way line and along said proposed west right-of-way line, a distance of 84.19 %et to a point for corner, %r the beginning of a tangent curve to the right having a radius of 1047,50 feet, a central angle of 2°49'48", and a long chord which bears North 09° 18'42° West, 51.73 feet; THENCE continuing along said proposed west right-o%way line and along said tangent curve to the right an arc distance of 51,74 feet to a point for the POINT OF BEG]NNING; THENCE South 89°09'S7" West, leaving said proposed west right-af-way line, a distanee of 16.12 feet to a point for coiner, for the beginning of a non-tangent curve to the right having a radius of 1063,50 feet and a central angle of 1°40'07" and a long chord which bears North 06°57'20" West, 30.97 feet; THENCE along said noai-tangent cuive to the right an are distance of 30,9'7 feet to a point fo�• corner, said point being in the north tine of said Lot 2, and being in the south line of Lot l, Solar Way Addition as recorded in Cabinet B, Page 196, Plat Records, Dentan County, Texas and being conveyed by deed to Jean M.G. Tunnell and Agnes H. Rogers, as recorded in Volume 994, Page 652, Deed Records, Denton County, Texas, being a common line; THENCE North 70°54'S4" East, along said common line, a distance of 16,43 feet to a point for corner, for the beginning of a non-tangent cu�ve to the left having a i•adius of I047.50 feet and a central angle of 1°58'37", and a lang chord which bears South 06°54'29" East, 36.1� feet, said point being in p�•oposed west right-of-way line of said Bonnie Brae Street; THENCE leaving said cominon line, along said proposed west right-of-way line and along said non-tangent cuive to the left an arc distance of 36.15 feet to the POINT OF BEGINNING and CONTATNING 537 square feet, 0.01 acres of land, more or less. �, YKVYLK 1 Y 11V 1I:1ZL,� 1 a" LXti11311 "L" - YaEC 1 OI L PAGE 1 OF 2 �� , �;�� i . � ��c� � ► 3 7 �� i o ��` �C�° LOT 1 ¢ ,�� ' JEAN M. G. TUNNEL � 6 0 t�`�,� f� AGNES H. ROGER$ N i_v�4.��3 � ��1 VOL. 994, PG. 652 � l��., �.R.D.C.T. � � � IC �� N � a Nj� Cy ° POO,� 196 i �O�P�W� O G:�( .5A �A„� 9a �3A 1 , C'P p R N�� 57"W 96.69: � � POINT OF i BEGINNING � 589'09'57"W -=- 16,12' so �'q9,9 A� �q •9y � • o ,� A= 2'49'40" -� R=1047.50' o T=25.66' ` L=51.74' ' W Cb=N09']B'42"W Lc=51.73' , � �j � 1 A 2216 S, BONNIE BRAE �� L07 2 � � CHRTSTOPHER M. WA7TS VOI.. 5102. PG. 2398 . ��. o.R.o.c.r. � L— i ��I � �� / 1 .� � 1 � ' .'� � � '�,'' ��.� �/ _ - �� ro �----- v �L ... POINT -OF-- — COMMENCING �NO i/z• r,p 2220 5. 80NNIE BRAE LoT 3A JOHN P. DANSBY VOL. 1554, pG. 969 n.p.n:c.r. � , , , , , f � � � i � � i � I I � � I � , , ; 4 ti i i � � � � i r �; , � , t„ �� i �a��S� �r, �'�;; � �a `�� `��ro � G�t',s.7 � ;S�) `\.,�` S . ,�j�. ��' e= 1 40 � o� ° �:. R=1063 . 50 ' , ��<Ln�� 1'�A5.49' ��'�"� �=30.97' , Cb=506'S7'20"E I Lc=90.97' 1 ' i �� i i i i L i 1 �` i /� ' .r � � - , � '_ : , f -- �-�� _-__- � , , , > ' �h. , �W ' � w ; '�� ti H y ;� ; , ; ' 1� 3 r' ^ � ./ 1 �o , � a� ¢ , � z. � �3 ~ � � Q: ~� H : , ��, , , �, l�H� �, � � ' �> � , � , � , � , � ; ; � . �� , � � ' � � i 2324 HIGHLAND PARK Rp MILTON B. CLEARMAN 0 SPOUSE, ANITA A, CLEARMAN VOL, 4437, PG, 2213 D.R.�.C.T. ''% �\ r i� ` �• / ` ,r '' _ �.. / � �� / � / / � `� ` �` ._ _ I i — ' �- � ��.� �_________...../,la�_---.(VARZABLE WIDTj1��;0^W-).---• H a= �o �� ~ O 3 O�J m ��> O W .� �"` -J HARLAN PROpERTIES, INC. VDL, 4704, PG. 1297 D.R.D.C.T. BA5I5 OF BEARING IS NORTH AMERICAN DATUM OF 19B� (NAD-63) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL, PARCEL 24—DE-1 BEING A 1,487 SQ.FT./0.03 ACRE DRAINAGE EASEMENT SITUATED IN THE 0. S. BREWSTER SURVEY ABSTRACT N0. 56 DENTON COUNTY, TEXAS � Graham Associates,lnc. ■ CONSULTING ENGINEERS dc PLANNERS 600 SIX FLAGS DRIVE, SUI'fE 600 ARIJNOTON, lE)(AS 78011 (Bi� 840-Bb3b TBPE FlRIAS F-1101/iBPLS FlRAI: 1D1638-00 n SCALE: 1"= 60' DATE: JULY 2011 J/Denton/P24-�E-1 Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "D" - Page 2 of 2 PARCEL 24-DE-1 LEGAL DESCRIPTION DRAINAGE EASEMENT BEING a 0.03 acre tcact of land situated in the O,S, Brewster Survey, Abstract No. 56, Denton County, Texas, being a poz•tion af Lot 2, Solac Way Addition as racorded in Cabinet H, Page 44, Plat Records, Denton County, Texas. and beii�g co�iveyed by deed to Christopher M. Watts, as recorded in Volume 5102, Page 2398, Deed Records, Denton County, Texas and being more pacticularly descxibed by metes and bounds as follows: COMIv�NCING at a found 1/2 inch iron rod, said point being the southeast corner of said Lot 2, and being the noz•theast corner of Lot 3A of said Solar Way Addition, and beiug conveyed to John Dansby as recoi•ded in Volume 1554, Page 969, Deed Recoi•ds, Denton County, Texas, and being in the existing west right-of way line of Boimie Brae Street (having a variable width R,O.W.); THENCE North 00°17'S4" East, along said existing west riglxt-of way line, a distance of 70.20 feet to a point for cornei•, said point being in the proposed west right-of way line of said Bonnie Brae Street; THENCE Noi�th 10°43'36" West, leaving said existing right-of-way lina and along said pz•oposed west right-of-way line, a distance of 84.19 feet to a point foi• corner, fo�• the beginning of a tangent curve to the right having a radius of 1047.50 feet, a cent►•al angle of 2°49'48", and a long chord which bears No��h 09°18'42" West, 51.73 feet; TI�NCE continuing along said proposed west right-of-way line and along said tangent curve to the a�ight an arc distance of 51.74 feet to a point fo�• cornar; THENCE Souih 89°09'S7° West, leavuig said proposed �vvest right-of way line, a distance of 16.12 feet to a point for the POINT OF BEGINNING; THENCE South 89°09'S7° West, a distance of 96.69 feet to a point for corner, said point being in the north line of said Lot 2, and being in the south line of Lot 1, Solar Way Addition as xecorded in Cabinet B, Page 196, Plat Recoxds, Denton County, Texas and being conveyed by deed to Jean M.G. Tunnell and Agnes H. Rogers, as recorded in Volume 994, Page 652, Deed Reeords, Denton County, Texas, being a common line; THENCE Noi�th 70°54'S4" East, along said coxnmon line, a distance of 98.34 feet ta a point for corner, for the begizming af a non-tangent curve to the le$ having a radius of 1063,50 feet and a ceniral angle of 1°40'07", and a long chord which bears South 06°57'20" East, 3097 feet; THENCE leaving said common. line and along said non-tangent curve to the left an arc distance of 30.97 feet to the POINT OF BEGINNING and CONTAINING 1,487 square feet, 0.03 acres of land, more or less. "PROPERTY INTERESTS" EXHIBIT "E" - Pa�e 1 of 2 PAGE 1 pF 2 � �� f``�v��,'�� o ��o i a LOT 1 0 �� JEAN M.G. 7UNNEUL 6 N l"�✓1�� (;� AGN�S H. RO�E�S o ��{' VOL. 994. PG. 52 p ,(;J��,��C O.R.D,C,T. ' a y��, �,,�jf` . \L�� Y � • � 00��9� N8913944?,,E I P WPy p�' '( ' I1 . �o�P� e, o � , ` �P P •P' � 1 / _..�1\ . N29'55' 4! "W 36.72' POINT �F BEGINNING i i r 1 1 1 , � � � �, . � , , 1� � I � ti � i � � � � z , , ! � � '; o � ti � ; � , 590'27'54"W w ; � 16.00' j W � 2216 S. BONNIE LOT 2 CHRISTOPHER M. VOL. 5102, PG. O.R.D.C.T. SQ< cA9 � `�q , yy 90 ,c .„, y � i i { i i Z i i BRAE l � � � � 1 A � WAT75 � � ��` 2398 l � ,, � - 1-'"J ' � ' � �, s �.; /� /�1� IN � � � O + �� / I n � H / � w � i �� i�� . ` `v i � � � , . : 1 �'�\`�� `,� � � 4 � , _ o , �--; Z , � ; .._�__�_ — - - i � p�'q� ; � �, P OINT -0�'-- -� - - -- ,. i � � COMMENCING � � ' ...' 3 i i FN� 1/2" I,R � � ti �QW`� L.,�H t 1,, ¢ � 1. q I � v i 2220 5. BDNNZE BRAE ' � � LOT 3A i ' JOHN P, OANSBY ; F VOL. 1554, PG, 969 � U] ; D.R.D.C.T. ' � i , i � � , ; r Ii j-v i � U�I `r�� 65j`11 fF) Y--I , n./'�j�i �� i^� ur.? u'��-, , � �C�J '�:?� � �� j (y��` il ,_ ��y,��,. �' e= 1 �a4 � 4�° ��; T=i662050 " `�.c��`<�` L=32.39' CbsS08'39'45 E � Lc=3�.39' 2324 HIGHLANp PARK RO MIL7DN B. CLEARMAN 6 -Q� 9' 9�' 30" SPOUSE, ANITA A. C�EARMAN R=�047,50' VOL, 4437, PG. 2213 T=10.88' D.R.D.C.T. L=21,79' � Ch=N!0'07'5]"W � Lc=2].79' � � �J \ /�., _� ,. % / �// �� r' -- t � ,..__,- � -'r i'/'� GHLAND PA�{t�'�IiOAD „_..______...r./.ta�---�VARIABLE WIDTI�l��:.W �---•-- �, �--- � -: � � R'r � F+ o ��W�Q;¢ W F-- O ° H 3 O� � HARLAN PROPERTIES, INC. Q',� m VO�. 4704, PG. 1297 � �H D.R.D,C,T. ¢ > OV � BA5I5 OF BEARTNG IS NORTH AMERTCAN DATUM OF 1983 WAD-83) STATE PLANE CDORDINA7E SYSTEM, TEXAS NORTH CENTRAL. PARCEL 24-5E-1 BEING A 213 SQ.FT./0.00 ACRE SLOPE EASEMENT SITUATED IN THE O.S. BREWSTER SURVEY ABSTRACT N0. 56 DENTON COUNTY, TEXAS � Graham Associates,lnc. ■ CONSULTING ENGIN�ERS d� PLANNERS 60D SIX FLAOS DRIV� SUITE 600 ARUNcTON, TEXAS 76D11 (B1'J� e4o-e575 iBPE FlRAIt F-11G1/TBPLS FlRI.f 101638-00 n SCALE: 1 "= 60' DATE: JULY 2011 J/Oenton/P24-SE-� Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "E" - Page 2 of 2 PARCEL 24-5E-1 LEGAL DESCRIPTION SLOPE EASEMENT BETNG a 213 square foot tract of land sifuated in the O,S. Brewster Survey, Abstcact No. 56, Denton Cotmty, Te�cas, being a portion of Lot 2, Solar Way Addition as recorded in Cabinet H, Page 44, Plat Records, Denton County, Texas, and being conveyed by deed to Christopher M. Watts, as recorded in Volume 5102, Page 2398, Deed Records, Denton County, Texas and being more particularly described by metes and boi�nds as follows: COMMENCING at a found 1/2 inch iron rod, said point being the southeast corncr of said Lot 2, and beitxg the noi�theast corner of Lot 3A of said Solar Way Addition, and being conveyed to John Dansby as recorded in Volume 1554,1'age 969, Deed Records, Denton County, Texas, and being in the exzsting west i•ight-of-way line of Bonnie Bxae Stceet (having a variable width R,O.W.); TH�NCE Nortl� 00°17'S4" East, along said existing west right-of way 1ine, a distance of 70.20 feet to a point for corner, said point being in the proposed west right-of-way line of Boruiie Brae Street (having a variable width R.O,W.); THENCE No��th 10°43'36" West, leaving said existing west righi-of-vvay line and along said proposed west right-of-way line, a distance of 84,19 feet to a point for corner, for the beginning of a tangent curve to the right having a radius of 1047.50 feet and a central angle af 1°11'30" and a long chord whieh bears North 10°07'S1" West, 21,79 feet; TI�NCE continuing along said proposed west right-of-way line and along said tangent curva to the rigl�t an arc dista��ce of 21.79 feet to a point far corner; THENCE South 80°27'S4" West, leaving said proposed west right-of-way line, a distance of 16.00 feet to a point foz• the POINT OF BEGINNING; THENCE North 29°55'41" West, a d'zstance of 36.72 feet to a paint for cor•ner; THENCE North 89°09'S7" East, a distance of 13.44 feet to a point for corner, for the beginning of a non-tangent curve to the laft having a radius of 1063,50 feet and a centcal augla of 1°44'42" and a long chord which bears South 08°39'45" East, 32.39 feet; THENCE along said non-tangent cux�ve to the left an arc distance o� 32.39 feet to a poiut for the POINT OF BEGINNING and CONTAINING 213 square feet, 0,00 acres of land, more or less. ••rxurr,x i Y tiv i l;x�;a i�" �;xttttsll "1+ "- rage 1 ot L pAGE 1 pF 2 .i\ ��L. V ��-� � 0 � J� �� . a��~ ��` :��`� �� <��',' 6,�y ��^ti�� '�'r'S' q,?'G% �� j` � / 2216 S. BONNIE BRAE LQT 2 CHRISTOP,HER M. WATTS VOL. 5102, P6. 2398 D.R.D.C,T, �•�� N88 `A3 � q�" E�-'� B6. 9 /�' ��:�r'� \� N01 '16' 52"W 50.18' SB8 '33' 56"W 75. Q1-'-� — Po�NT -o� : BEGTNNING 588'33'56" 2,61' 2220 5. BDNNIE BRAE LOT 3A JDHN P. DANSBY VOL, 1554, PG, 969 D.R.D.C,7. i i � � � i i 1 � � t E�+: w� �� I . �• �,� 'o � ��¢ ' i i= �'F- �O �H �� IW �M� la'q�i �� H� �� , rti � -'� � �i i i i .� ,� Y Y � � � � , , ; : I 1 I i iW .ti Z H i J � �r �w � >. a �� ' "•,J 51 U _� � � � � � � � y , � L;CO �' r� � � _ , � , `I ti I ; ;; ti 4 i r i i i � � � � , I � � ti i � i i � i i � iI� ' 1 . 0� �.��`�'-�1)�� 1 �`�� t��7 .� >ti�: (cj)° .`�;?�'�C:� �� w�� \�' 6� U `"" ��'t> y _ � \(,. 2324 HIGHLAND PARK RO MILTDN 9, GLEARMAN 6 SPOUSE, ANI7A A, CLEARMAN VOL, 4437, PG. 22]3 D.R.�,C.T, / \ i � � � `� �. i ,� �i �r.,_.___ ��_ �'`� � �i .. � �, �_.J � _�"� 4�-'-36"-�__,.! -�� ,� ------ 50.67' `r GHLAND P�� ROAD -------____�./l.i,,----(VARIABLE WIUTjilfl �,W,)----- OINT OF VIMENCING JD 1/2" I.R E �o A�a �� 0 3 � � J m � �c.� ¢ 0 � � �� HARLAN PROPERTIES, INC. VOL. 47D4, pG, 1297 D.R.D,C,T. BASIS OF BEARSNG IS NORTH AMERICAN DATUM OF 1983 (NAD-83) STATE PLANE CDORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 24—TCE--1 BEING A 3,549 SQ.FT./0.�8 ACRE TEMPORARY CONSTRUCTION EASEMENT SITUATED IN THE O.S. BREWSTER SURVEY ABSTRACT N0. 56 DENTON COUNTY, TEXAS ^ Grahcam Associates,lnc. ((L,� CONSULTING ENGINEERS dc PLANNERS BOD SIX FUGS DRIVE, SUIiE 60U `:�� ,�uNOroN, �s.�so�t (s�» a4o--asa� 7BPE FlRM: F-11�1/TBPLS FlRIA: 1D1638-00 n SCALE: 1"= 60' DATE: JULY 2011 J/Dentan/P24-TCE-� Page 2 of 2 "PROPERTY INTERESTS" EXHIBIT "F" - Page 2 of 2 PARCEL 24-TCE-1 LEGAL DESCRIPTION T�MPORARY CONSTRUCTION EASEMENT BEING a 0,08 acre tract o� land situated in the O.S. Brewster Survey, Abstract No. 56, Denton County, Texas, being a portion of Lot 2, Solar Way Addition as recorded in Cabinet H, Page 44, Plat Records, Denton Cour�ty, Texas, and being conveyed by deed to Clu•istopher M. Watts, as recoxded in Volume 5102, Page 2398, Deed Records, Denton County, Texas and being mare particularly described by metes and bounds as follows: COMMENCING at a found 1/2 inch iron rod, said point being ihe sautheast corner of said Lot 2, and being the northeast corner of Lot 3A, Solar Way Addition, as recorded in Cabinet H, Page 44, Plat Records, Denton County, Texas, being a common line, and being in the existing west right-of way line of Bonnie Bi•ae Street (having a vaxxable width RO.W.); THENCE South 88°33'S6" West, leaving said existing west right-of way line and along . common line, a distance of 2.61 feet to a point for the POINT OF BEGINNING; THENCE South 88°33'56" Wast, continuing along common lina, a distance of 75,01 feet to a point for corner; THENCE North O1°16'52" West, leaving said common line, a distance of 50.18 feet to a point for corner; THENCE North 88°43'08" East, a distance of 66.69 feet to a point for corner; THENCE South 10°43'36" East, a distance of 50.67 feet to the P�INT OF BEGINNING and CONTAINING 3,549 square feet, 0.08 acres of land, more or less. 4x-ZS�ZO�Z AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET December 4, 2012 Utility Administration Howard Martin, 349-8232 �.� , Ilu.ud::91i��ndlliiu ��II II�V:�^um.m � SUBJECT Receive a report and hold a discussion on the stanis of the widening of U.S. Highway 380. BACKGROUND The Texas Department of Transportation (TxDOT) is widening U.S. Highway 380 from Elm Street in Denton all the way west past the Wise County line in a total of three separate projects. Two of these projects lie within Denton County and directly affect not only Denton motorists but also Denton utilities: 1 2 From Elm Street west to Bonnie Brae (US 380 "In-Town") — bids received by TxDOT on November 1, 2012 with a low bid from Jagoe-Public in the amount of $15,088,445.93. This proj ect has a proj ect completion time of approximately two years, and constniction is expected to begin sometime around October 2013. From IH35 west to approximately 0.4 nules west of FM 156 (US 380 "Urban") — bids received by TxDOT on July 10, 2012 with a low bid from Texas Sterling Constniction Company in the amount of $39,346,679.00. This project has a project completion time of approximately three years, and constniction is expected to begin in January or Febniary 2013. Constniction is expected to begin at the Wise County line and proceed east in order to give the City additional time to clear its water and wastewater utilities. City staff is worlcing diligently to clear utilities from both sections of roadway in advance of the TxDOT projects: 1. US 380 "In-Town" — The project is being cleared (City is moving water and wastewater utilities) in two phases. Refer to Exhibit 1 for proj ect extents. a. The first phase is primarily from Elm Street west to Carroll Boulevard with some additional work at Gay Street in order to assist with the tinung of the constniction of the Wash Factory facility. This work was designed in-house and is being constnicted by a combination of City crews and annual bids for constniction. Work began in June 2012 and is expected to be completed by the end of the year. b. The second phase is from Carroll Boulevard west to Bonnie Brae Street. This worlc was designed by in-house and consultant personnel and is currently in the bid phase. Bids are scheduled to be received on December 20, 2012. The engineer's opinion of probable cost is approximately $32 to $3.7 million dollars. The City has communicated to TxDOT that we expect constniction to begin in March 2013 and to be completed in March 2014. The City has communicated to TxDOT our concerns about the overlapping timeframe of this job and TxDOT's project over this same area. No response has been received from TxDOT to date. In addition to the utility worlc in this area, the City will be clearing medians and placing temporary pavement between Bonnie Brae Street and Hinlde with reimbursement in the amount of $847,511.73 by TxDOT, with the Advanced Funding Agreement for this worlc being approved by Council on October 16, 2012. Worlc is scheduled to begin upon receipt of payment of the listed amount. 2. US 380 "Urban" — This project is being cleared in three phases. Refer to Exhibit 2 for proj ect extents. a. The first phase consists of protection or "armoring" of a wastewater line on the south side of U.S. Hwy. 380 between Egan Road and Willow Lane. This worlc was designed in-house and constnicted by City crews. Worlc began on November 12, 2012 and is expected to be completed in early December 2012. The engineer's opinion of probable cost on this worlc is approximately $30,000.00. b. The second phase consists of water line constniction between IH35 and Masch Branch Road. This worlc was designed in-house and will be constnicted by City crews and annual bids for constniction. Worlc is scheduled to begin in early December 2012 and is expected to be completed by June 2013. The engineer's opinion of probable cost on this worlc is approximately $1,300,000.00. c. The third phase consists of wastewater line constniction between IH35 and Masch Branch Road. This worlc was designed in-house and will be constnicted by City crews and annual bids for constniction. Worlc is scheduled to begin in March 2013 and to be completed in May 2013. The engineer's opinion of probable cost on this worlc is approximately $185,000.00. OPTIONS Not applicable at this time. RECOMMENDATION Not applicable. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Not applicable. FISCAL INFORMATION Not applicable at this time. EXHIBITS 1. US 380 Utility Relocations (Bonnie Brae to Elm). 2. US 380 Utility Relocations (Egan Road to IH35N). Respectfully subnutted, �� Franlc G. Payne, P.E. City Engineer EXHIBIT 1 Q �� v z -� w w _ = NORTH LAKES � � � HEADLEE � HEADLEE � � -� REC CENTER � o VA �RBILT � J J j o � z � w KH LL o z � w � A T '� o� J MEADOW IDGE SAMARITA � Q o � Q w � STRATA DRIVE m � AUBURN m VILLAGE � z o STWARD HAGGARD z o m w FAIR o TENNIS CNTR � BELHAV N z PRINCET�TJ GROUNDS FAW � Q ALI FER m � Q � J = Q GREENBRIAR o � � w o i m --� � a � � TULANE � m ROS w �� - �-� Y -��- -� - -- � - � o Cq �eRYN M � � z z �� R � �� SHE MA o � O � � � � � o w ST R� w. vN��ERS1 v Q HWY 380 UNIVERSITY DRIVE WEST � w o J o � SUNSE � � �� ao w � � z WESTWAY � EMERY o EMERY � �w � � COLL GE w cn o � WESTCHEST �w EMERY J a Q� o � � = w� w CORDE CORDELL CORDE � � HI D ~ m J � CRESEN c�Fs�,� CRESCEN CRES E T T GAR' CRE NT CRESE T o� o Q H GH � 2N� w � Q � Q � WEST w m � m a >- LIND N LINDEN FIE�DC� J J z � � z J Q � LINDEN w a z o o a m w z z � w o z z z z p o c� � I S- m � ° � � w �� BROADWAY � o J z a U � - � _ _-=-�� EXHIBIT 1 ��= US 380 Utilit Relocations � y o �� z� (Bonnie Brae to Elm) 1'-1,000' I EXHIBIT 2 AGENDA DATE DEPARTMENT: ACM: AGENDA INFORMATION SHEET December 4, 2012 Planning & Development John Cabrales Iluud;llu+��nd;lliiu mll IIV�^um�� II� SUBJECT — DCA12-0005 — Phccse II Gccs Well Drilling ccnd Production Ordinccnce R��isions Receive public input regarding the Phase II amendments of the City's Gas Well Ordinance. BACKGROUND On November 28, 2012 the Planning and Zoning (P&Z) Commission voted (6-1), to recommend Approval with Conditions of the Phase II Gas Well Drilling and Production Ordinance Revisions. The conditions P&Z recommended are that City Council will continue to revise the ordinance language based on the concerns of the community. This ordinance amendment is scheduled for a public hearing during the December 18, 2012 City Council meeting. However, to allow for additional public input prior to the public hearing, the City Council added an item to their December 4, 2012 agenda. PRIOR ACTION/REVIEW On October 24, 2012, the Planning and Zoning (P&Z) Commission continued the public hearing for DCA12-0005 by a 7-0 vote. On November 6, 2012, the City Council received a report, held a discussion, and gave staff direction regarding the Phase II amendments of the City's Gas Well Ordinance. On November 13, 2012, the City Council received a report, held a discussion, and gave staff direction regarding the Phase II amendments of the City's Gas Well Ordinance. On November 14, 2012, P&Z continued the public hearing for DCA12-0005 by a 6-0 vote. On November 28, 2012, P&Z recommended Approval with Conditions of DCA12-0005 to the City Council by a 6-1 vote. PREPARED BY: �,. �, �� „ �� °�� ,�� W�� ° � Brian Locldey, AICP, CPM Interim Director, Planning & Development RESPECTFULLY SUBMITTED: l�, ��-�—" � John Cabrales Assistant City Manager of Development .,�.[�.�.. �� ,�1� �1 �� • Comments to the Denton City Council Agenda item 7B, Gas Well Ordinance, December 4, 2012 Sharon Wilson, 1121 Belvedere Dr. Allen, Texas 75013 I am a former Denton resident and a memlier of the DAG group. I work for Earthworks' Oil and Gas Accountability Project helping people who are negatively affected by oil and gas activities. In early 2009, I began working with a small group of Denton citizens to get a better drilling ordinance. In early 2010, I began warking with a small group of Corinth citizens to get a better drilling ordinance. Industry used their influence to distort the process in both cities. They were unsuccessful in Corinth. Corinth had scientists, unaffiliated with industry, and citizens on their task force. Industry was allowed to give a presentation but not allowed a vote. There were no closed-door, backroom meetings. No paid industry consultants. In October 2010, Corinth adopted their new ordinance. In Denton, public health remains at risk as the ordinance process drags on. This is a timeline of failure when Denton needs leadership. It's up to the city to protect residents because the state, as we revealed in an unprecedented research analysis, is not doing the job. 296,000 active oil and gas wells in Texas were uninspected in 2011. Peer reviewed studies connect fracking with negative health impacts. Inadequately regulated --as it would be in Denton under the proposed ordinance—fracking competes with public health. Denton deserves an ardinance that protects health, safety and welfare. This ordinance does not. It's been almost 4 years so I can't believe I going to say this but the proposed ordinance is not ready for a vote. ��a.�n- J1/�(.Psv�J Sharon Wi son, orgamzer Earthworks' Oil and Gas Accountability Project i6iz K ST. N.W. J SUITE 808 f WASHINGTON, DC z0006 f P zoz 887 i87z F zoz 887 �875 f WWW.EARTHWORKSACTION.ORG �� ` Handout to Council from Cathy McMullen who > F ,` ; spoke regarding amendments to gas well � `' ordinance at the Dec. 4 CC Meeting �, T , �.. ` �� Preseiita�ion �o c�ty councii` 1�14 : ` ` _.: _ The �citv of ��nton �vas biIled �bv consultants for the nrouosed -n�w drillin�` or�m�nce,ss:in the-ard�r �f frequencv: ` � ' ` C�eneral. v�ork �n gas.v�ell amendments,9 �imes. : Reviev�;chauges fo the moratflnum and :"[Tnoff'icial'°-o�cial tas� fazce 8 times Rob�ori Rancli and.Preemption issues 7'time .: ` Vest rig�.ts G times H�nt�r Ra�ch :{ wl�c� does not everi h�.ve a bome in the devel�pme�� 4 times Granc�f�thered provisioms for gas well a�endments 4: times , . : . � .. . _. Qr1,a.nd� gas.regt�lations, .Federal preemptions, Yuufarm requiiements? asid 1�egulatory 'Taking 2 time� � - Research Qt1��r GYties ardinances;-Home rule au�hori#y, City's �initiative to.regulate oil`and : gas e�pilora.tions with corporate lirnifis; Gas well enforeement in the EZ'J, Zoning or�inances far pate�it�a1. e�eeptians, an� Te�as Supreme caurt cases re�at� to Souther� erus�i conerete vs. Houston 1 ti��;� - - For a tcrtal of �.43 hours with �9 af tihose hours regarding Robson Ranch ancl Hunter .Ranc� Or raughly 97�0 of the billed tina.e was �de�a►ted to t1�e a�rov� issu�. Now re�ardin� env�ronmental issues EPA , Air emission issues, and Air quality ardinance � time Clean air act preemptians 3 iimes or a t�ta1 of,I"ess tl�tan•4 hau�rs or eq�ai to' - ' Roughly 3% t��f the billed time I don't even `know what to include tlus un�l�r - Re��i�v�::der�ton-ba�ib}�gs.r�gar�iz�gna�tral:g�sm�#te�s l:;:tim�e 1 V�iy w�u1d a�cons�.�lhant spend 2 hours on •thi�? �s bloggi�g �e,garding natur�l gas such a =�iXOblein �n. Denton the city needs:to spend $SQO to review it? Novv i think it is tim:� foz the city counci:l. to devote 100% of it's time to producing a set of ordinances the majority of the_ cit.izens af D�nton have been .asking for since 03/2009. ' ,. „ ,. � i �`A(J�.'.'�Pl;"t�' a,�✓I-uY.3m'.v4'.Li'�c.:NiF %'?,G^��`....v./�..it. {.�1.'TSZ3�i'^ .>'v C..�.-: 's' ....7' i �`!�_: .:da Y A f<..�� 5, _ --Y F �,_ k ��.'_�'-` ' - - "" _ `L.'�r _: . ._. ... ;.. _ '�1 ' - _ - _ _ _ - . - _ r - = t � ' ��thy McMull�n _ ; � ;: a _ ;; > . SU5 Ec�or . : , � .. . _ , ` D�nton, TX 76201 _ � - ' ` �Ie�v., d��li�.ng ar-c�inances for ��#on �'. E1eci�ic� i�n�tors should �� u.sed to drive .gas comp;res�o�s, and; ather �ta#��n�ry o�..a�.d�ga�-field�iri�'rasttu.ctuxe. � C�nciens�.te taukks should be.�quip��ed,v�i.th,vapor;recc�very t�.iis and . rnmutored �"or.the cantrol of�l�� --einlssions. - 3� �To=bl�ed pn�unt�ati� val�es an� fittings s�ould be used on pipeli.ne - � �ne�vv+orks. � 4:. Sa�ie�d.ay respions� to emissions �nd 1iealth �Ymptoms must:be . unpl�nmented and �ra�k��.. I� �reas w��r� �siQns ��c�d r�gvlatnry limits 24. houir�contrnuaus man�.torin.g must be`�tilized to assess emxssion and ' �r.atect public hsalth. : 'S� �ater quality iri drllliug areas musi b� protected by the use of closed-loop niud dr�lling;sys��nas. 6': -�reen �eso�.rce� -m.��t �e �se.c� �ar �ydra�ic fra�ttiring of vvells and this is ` to i��lude no ftari�g or ventiug e�cept in ca�es o� emergencies. Z: Recycling; of fiow back water u�ust be performed in compliance wit�i regulations that prQhibit contaminatiQn of all water resources at�d soils. "�; Iritenm arid.� finai reGlamati�n of �well sites and related faG�ities, includan.g �estari�ig top"soil. �and na�ve vegetat�an to`theirforiginal sta,te, is critica� for : l�ndowners, neighb�arhaods and' cflmmt�niti�s. �il� and� ga� aperators must beg�nrecla�ria�ior�;no later than.. ane_month �.fter a rig l��s left tlie site:and. full r�Gla�nation xn.ust be. comglet� witl�n �ix:�mont�. 9�. Ta.�ur� safe% an� qualii� �f Iife for ��i��, �. �� g� v�ells :�nu�t be . s"�tbacl� at leasi 1,500 ft from a ha�ne, church, park, hospital, nursing homes, and,areas of where l�rge conc�ntrations o�people gather for.more than one hour at a time: . 1 O: �t all s�ages af t�i� ai�d ga� �eve�op�en�, �he public �hc�uld r.eceive . pubXishe.d notice .and adequate oppor�imi�ies tc�'provide input. - 1:1. No compression siatio�, pxocess facilities;: lan.d farnurig, or` apen pits. " ` S _ ' _ - _ _ _ �:I� _ � - - _ "_ ;, �, l �' _ ' ' ' . _ � B�i�vu�r��preventia,n equ�pr��nt rn�st be used at. �II ' _ �nr�f1 s�tes �uhen � �ir_�II �s -�eir��. drilled, worked-over or ' in u�h��h :tubing is b�ing chan��ed (F[ar�er.11llaund page ��). - �Io .flaring or ��ntm�'of na�ura� .�as .�ielf w�th;in the ci� �f D�nt�n �xce�t �n,-t�� .s� �f �r�erg��e� �1��er ' .M��.r��+��, - �. _ . ; . : Tir.ne of .op�ratEan for gas and, oil �nrel� dr�lling, in �'he city lirni�s.sl��uf� .be c�n�r�ed�t� 5;0� arr� �� :�Q p� M+o�ida�y� �hru: Fr.id�y and '1 �:�� am #a 7:00. �m ��fi, S�rr�da-y �nd al�_ Iegal hQli:days, ��ie o;nly exc�ptions � sho�uld accur in tirn�s of �mergenGy :�nd -wi�h the � _ . _ .. _ . pr��er �� n�i �#��+� �#��1. r�o�if�ed ;�a� �rnr�r�ency. . No inje�ic�ns �nrells�, waste pits; flaring, apen pit�; ail . fe�cing around site mu� b� rnas�nr� Time o� operation for �,�s and:oil well drilling in the city fimit� shauld be con��n��d t� 8:�4 arx� ta 5�00 pm : ��I,or►�lay thra �Fri�.�� :� �:�t�. ar� �c� �.0►� pr� �at, �urtday �nd : a�i 1��1' �c��ida�s. �'�� n�y ��€:�ti+��s should occ�r in tirnes of_ emergency �nd with the . pro:per: city and state ofFicia� notified of emerger�cy. �}'. .Y, .'��:.. —.' �S• � " t��;'� ' ��..;� �".��.: l "� k t � v� � �� { �'�` `��_;: . ., , , _ -•-; � �,-=' ney�q4 tf�'F'�k��.��' T � f 7 � .i.f�+(3a'�_aea�.x��.. -•i;w.� T _ a S ' fi S� : f �' 4 p'� � . _ - 3 � �: 1� — .�� S �� 3�9 � - i �«e-� ,�._ . r.=_tR P a ".7v��, �'�, !� .. .. A� � ` :�.�; ` �, 5F J# qE �j � �1, .r�W;' `. � r ..�. ,�� ` �?� � � $'.�: -' �'r . a � ik�.� -hr� �� . . • •�� . . . ..: . �.. � i �� 1 � / � �::Enforcement Report 1 %� =� - — - 4 �; l` ' � �. �; . r� � ` �� .�'� ;t � �� ,r � i t �'�.{�, r`� ` � . , , - e `�� . . . . a� ` .iy. .F�.,' ��-. � , �;•: ':7 � 1u k �;�'1 . . . . ' , - y: 5 � y� h ,. . ,. � � . �. � �. I : . � �� yp. f� �y��\ /� Aw � }F� �� .� 1�� `��9! f��'V:� �1 r �: ��. , � j�� « � �je�ua�,e �n��r�c�r�er�� e�ns f� = C( .. :, � i 1 L �.-�-:� �;,� sp+ons��b�e �� ti �gas : �� e� v�e�opment` "� U' � `.�� ;, , �,� ,s�; r � $�T�E�I�EI� �(�1 � ; ;, � ��: ` ,� �� r,-�� , i, �, u, � �. ��. , �,,� � 3 { t , �,''`��c? ��' ' ��#, ��i �� ` ' , } "�,:: "a �+ � w': c��'[y.l . _ Y �,i` 27 � �SG, � y 'S�fr � �� a . '� { i > � �'�^. (T ` 1 �. 1 �: �� ui rj r'Sr ��`' `� � . ..- I .. { i I r S � ;�� ° k�k, cr , r � � �' t �{ w �� '� - � q4'". �h Y ��; � �, y� �:� � -'��i.0 . `t � s�:" 1.�� 5 1 ..il n '' -. Y '1C-'.� f � ��"� 5 � ��+5 �T � Fti ''f �, 1 �t � � F . .:.�� 1 � �, I� � �t$"rp � �'d �.� . . 4 4.., �.1. � �i.�. i �Y� xj z� r �� -. Ih�'�'+.f.l f.� . i � 1� t #� r ,.� a °' .� +ls i{J 9 - � � . � :i$.'$y`+.�z , . , . _ , �.a , �:. �_ ;; "*`""* � ,. . - -�. 'r _� � ., _=''�,� � - ��' - - ,,,5 . . .. _ . i — S. '.� , . . .. _ ..:...... �F . . � ' � , � ' — — _ — . . .� ., , . . . f _ adequately enforce c1=ga� rules i5 harming 4 �ltli'; safety, and the ' ' �AR,-HwoRKS�' ' �." �n} OIL & GAS ACCOUNTABILITY PROJECT L � I .. , ,,, ..r_ _�__.�. , �. � ' ,"� �'& � � 1 � � �_ a.$ ..., , _.. .� �� ,-k ._��13&�.4v1,}in�..e� +.f:.,��':i��.�JA, � .. The Railroad Commission ofTexas (RRC) - the state agency responsible for oil and gas industry oversight - has the dual role of maximizing development of oil and gas while also protecting public safety and the environment.' This fact sheet examines how well the RRC is overseeing oil and gas activity in Texas through its enforcement efforts. The Railroad Commission's records show that the agency is not keeping companies from damaging the environment. As seen in ihe chart below, operators repeatedly ha�e crude oil and natural gas spills from tank batteries due to"equipment failures;'resulting in dozens of cases of polluted water.z A review of publicly available RRC information shows that Texas'capacity to regulate the oil and gas industry has been, and remains, limited: • Inspections are decreasing despite additional staff • Fines for oil and gas viofations are inadequate • Enforcement tools are not deterring repeat offenders • RRC should do more to enable citizen participation in enforcement ■ 2006 ■ 2007 ■ 2008 ■ 2009 � 201a �, 2011 Pioneer Natural Resources �� , Apache Corp � �,�' 7(TO Energy� "=�� >_`' : DevonEnergy Anadarko E&P/Petroleum ,.%�7 Chesapeake Operatlng 1 -; "------------------o------ o ------- o----- --- ---- � N V �o 00 Spills Caused by Equipment Failures at Tank Batteries These types of spills often contaminate soils, create wastes t4�at require remediation for proper disposal, and some contaminate water resources. Between 2006 and 2011 six operators ea�h had more than 30 in�idents leading to crude oil and product spills attank batteries. Pioneer Natural Resources had 29 spills in 2011 alone, and overthe six- year period had 110 ofthis type of spill. This pattern strongly indicates thatthe RRC has not done enough to encourage or require companies to prevent pollution. Inspections -TExas SETTING A LOW BAR Between 1993 and 2011 the num- ber of wells producing oil and gas in Texas increased by 24,000, but the number of RRC inspectors fell by203 As a result, in 2011 each inspec- tor was responsible for inspecting close to 2,700 wells, versus 2,000 in 1993. In 2017, inspectors visited fewer than 1,200 wells each ^ In 2009 Texas failed to inspect 130,600 wells - 56 percent of the in zo�o, RRC acknowledged that producing wells in increased industry activity and the state. a lack of staff required a reactive rather than proactive approach to inspections, and that they could do "more with increased funding and staffing levels:'S But the addition of inspectors in 2011 did not result in increased inspection activity. In 2009, with 87 inspectors; the RRC conducted more than 128,000 oil and gas inspections. In z011, despite additional inspectors, the agency performed fewer than 115,000 inspec- tions = a drop of 13,000 inspections from 2009.6 RRC has set an even lower goal of 113,400 inspections for 2012, even though 2072 has seen significant increase in oil and gas drilling.' Fewer inspections means that more oil and gas facilities oper- ate with little or no oversight. Assuming each inspection occurred at a different facility, in 2009 RRC failed to inspect approximately 270,000 oil and gas facilities, while in 2011 the agency was unable to inspect 296,000 wells and related facilities 8 1993: - 2 011; 2,027 wells 2,696 wells perinspector perinspector - 270,000 - -------------- '`� 140 .� -- — � �i 260,000 ZS0�000 3 240,000 c y 230,D00 0 a` 220,000 210,000 200�000 m m m rn o 0 0 0 o ti .�-i .-�i emi em�l N N N N N N �Inspectors —Producingwells 120 ioo 80 Y m a 6D c 40 20 Number of Inspectors Not Keeping Pace with Number of Wells Between 1993 and 2011 the number of wells producing oil and gas increased 6y 24,0�0, butthe number of inspectors fell by 20. As a result, in 2011 each inspector was responsible for inspecting close to 2,700 wells, versus 2,000 in 1993. In 2011, inspectors visited fewerthan 1,200 wells each. Violations - COMPLIANCE A SERIOUS PROBLEM Between 2006 and 2010, the RRC documented between 70,000 and 90,000 oil and gas violations per year.9 With numbers this high, it is clear that a very serious problem with compliance exists in Texas oil and gas fields. In 2010 RRC inspectors found more violations per inspec- tion than their counterparts in other states: they found 0.6 violations per inspection, while oil and gas inspectors in Pennsylvania and Ohio found 0.2 and 0.1 violations per inspection.10 According to theTexas Sunset Commission, which reviewed the RRC enforcement program in 2011, "part of the reason for the large number of violations is that the Commission's enforce- ment process is not structured to deter repeat violations."" In 2012, RRC began publishing the number of companies who violated a rule that they had violated in the previous seven years. In the first three quarters of z072, there were 90 repeat violators.12 In Texas, operators with inactive wells are required to conduct an H-15 (e.g., rnechanical integrity) test "to establish that an inactive well over 25 years old does not pose a potential threat of harm to natural resources, including surface and subsurface water, oil and gas:`13 As seen in the chart below, over a two- year period numerous companies violated this rule multiple times. Companies also violate the same rule on many well sites. Companies also repeatedly violate the same rule at the same facility: For example, in 1945,1997,1999, 2002, 2004, and 2006 Chesapeake was sent certified letters for failing to file H-15 forms for the Detijerina, H.C. lease. Similarly, Devon Energy was issued certified letters because of delinquent H-15 filings on its Fagan H.F. lease in 1994, 1995, 1996, 1999, 2001, 2002, 2003, 2004, and 2009.14 Devon Energy Pioneer Nat. Res. Hilcorp Energy XTO Energy K&S Oil & Gas Braka Op. Petrolia Grp. Square One Energy Momentum Prod. Oxy USA Mantle Oil & Gas KD Energy Chesapeake Op. 0 20 40 60 80 100 Enforcement Actions - NOT ENOUGH TO DETER VIOLATORS When oil and gas violations occur, the RRC relies on the dis- cretion of each district office to determine whether or not to forward the case to the agency's central office for enforcement action.15 Very few enforcement referrals are made compared to the number of violations identified by RRC field staff. Between 2006 and 2010 less than one percent of oif and gas violations found by inspectors were referred to RRC enforcement staff. During the first three quarters of 2012, the referral rate has increased slightly, tojustovertwo percent.16Compared to other states, however, RRC's enforcement rate is low. For example, in 2010 RRC district offices made one enforcement "referral" per 160 oil and gas violations. , Meanwhile, that same year Pennsylvania took one enforcement action for every 3.3 violations." As the Sunset Commission found in its 2011 review: ':..the Commission takes relatively few enforce- ment actions, resulting in a lack of deterrence for future noncompli- ance. While there is no standard for how many violations should result in a monetary sanction, action should be frequent enough to deter future violations."1e Yearly fhe Railroad Commission of Texas issues 70,OOD to 90,000 violations with only a few hundred cases referred for One enforcement action enforcement. per 160 violations is highly unlikely to motivate oil and gas companies to comply with the Texas oil and gas rules. Perhaps the recent increase in enforcement actions will provide an increased incentive to operators, but this remains to be seen. Deliquent H-75 (Mechanical Integrity) Reports are Common Over a two-year period (2010 and 2011) there were 1,713 delinquent H-15 reports for natural gas leases, This chart shows companies with 15 or more delinquent H-15 reports for gas leases during this period. Devon Energy and Pioneer Natural Resources were the worst offenders, failing to file 100 and 82 H-15 reports, respectively. SEVERANCES AND SEALS: According to Michael Williams, previous Railroad Commissioner, the RRC`s alter- native to full-blown enforcement actions is the use of lease severances to enforce rules, deter future violations and bring operators into quick compliance - without the delay and expense of an enforcement hearing."The RRC may shut in and seal a well if it appears that the operator has violated or is vio- lating any statute, rule, permit, or order of the Commission?' The power of the severance or seal is that it requires opera- tors to stop production of oil or gas at a facility that is in viola- tion of an RRC rule. As a result, operators lose revenue until they bring the wells back into compliance and are allowed to resume production. One reason some operators may not resolve violations is that they don't actually stop producing oil or gas when they receive a severance letter, and therefore, they don't feel the economic pain of the enforcement action. For example, in 2002 there were 1,214 operators who continued producing and/or selling product from wells after being ordered to cease production.27 The reason operators can get awaywith continued production is that the issuance of a severance does not always involve an inspector going to the site and physicaliy sealing the well to prevent production2z iaoo uoo i000 soo eoo aoo zoo 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2�10 2011 Severences for Field Rule Violations In the pastfive years,the RRC issued between 6,000 and 8,5D0 severances/seals peryear." Accordingto one report,this enforcement tool is more often used to punish operators for failing to file paperwork than for breaking health, enuironmental or safety (field� rules.29 As seen in the chart, our research shows thatthe number of severances and seals used hy the RRC for field rule violations hit an 11-year low in 2011,'S This suggests that RRC is nottaking full advantage ofthis valuable enforcementtool. P@f1dl'�IeS —TOO LOW TO BE EFFECTIVE When enforcement actions are taken against an oil or gas oper- ator, the operator may receive a monetary penalty. Penalties not only provide a source of revenue to the RRC, they can be an important tool to motivate operators to comply with RRC rules. According to the Sunset Commission, "the efficient and fair use of penalties plays a key role in deterring and punishing violators, and thus increases compliance:'zb . In 2009, RRC collected $2 million in penalties, There were 549 enforcement referrals that year.27 Assuming every refer- ral resulted in a penalty, the average penalty in 2009 was less than $3,700. In 2012, the average penalty dropped to just over $1,Q00. ze A penalty of a few thousand dollars is unlikely to have any effect on the behavior of many oil and gas operators. To dem- onstrate that it is serious about oil and gas enforcement, RRC needs to increase the maximum penalties for oil and gas rule violations. These penalties have not changed since they were established in 1983 - three decades ago29 At the pres- "part of the reason for ent time, the largest pen- the large number of atty is $10,000 per day, and vlolations is that the this only pertains to safety and pollution violations. If Commission's enforce- that maximum had been ment process is not adjusted for inflation, a pen- structured to deter alty of $10,00o per day in repeat violations:` 1983 dollars would amount to $22,850 per day in 2012 —Texas Sunset Commission, dollars 30 reviewing the RRC enforce- Other states have recog- ment program in 2011 nized and acrted on the need to increase administrative penalties for oil and gas violations, In 2012, Pennsylvania increased the maximum penalty for uncon- ventional oil and gas wells from $25,000 (plus $1,000 per day of continuing violation) to $75,000 (plus $5,000 per day) 31 RRC should also increase the deterrent effect of penalties by strengthening requirements to penalize repeat violators, and by adding a provision that removes the economic benefit that operators enjoy through non-compliance. In 2012, the RRC amended its rules to provide guidance (not requirements) to enforcement staff on enhancing penalties for repeat violators 32 The enhancements, although a step in the right direction, appear to be far too small to provide much of a deterrent effect. For example, if an operator has a record of five or more violations in the previous seven years, the poten- tial enhancement amount is $5,000. A$5,000 fine for operators who have a habit of non-compliance sends a weak deterrence message. The RRC, unlike many other states and even sister agencies such as the Texas Commission on Environmental Quality (TCEQ), does not consider the "economic benefits of non- compliance" when calculating its penalties. Thus, an oil and gas operator might violate the law, get slapped with a mini- mum penalty, but do so with the knowledge that the money saved by not following the law was significantly greater than the fine they had to pay. TCEQ on the other hand, currently has a policy that if a violator gains at least $15,000 in economic gain by not following the law, then theTCEQ will increase the penalty by SO% 33 Public Participation - cirizErvs HELP FIND VIOLATIONS; PUBLIC DATA ACCESS NEEDS IMPROVEMENT Citizen complaints can provide a crucial early warning of problems at oil and gas sites. In 2009, the RRC received 681 complaints related to oil and gas and found 1,997 violations based on these complaints.34 The RRC itself has said it views citizens as "extra eyes to help the RRC identify problems:'35 Yetthe RRC does not consistently respond to violations identified from citizen complaints. In �009, RRC took enforcement action for just 4 percent (91) of the 1,997 violations found as a result of complaints 36 The Sunset Commission stated that this lack of consistency "can contribute to a public perception that the Commission is not willing to take strong enforcement action:'37 A 2012 Star-Telegram editorial stated that "Too many people in Texas seethe commission as a servant of and beholden to the oil and � gas industry, not as a regulator on behalf of the people of the state "38 Citizens do have the potential to be"extra eyes"for RRC, butto be more effective participants in oil and gas enforcement citi- zens need to know that their input is valued, and they need better access to information. As a result of Rider 17 of the 2012-2013 General Appropriations Act, the RRC is now required to publish enforcement information on its web site, including violations, the amount of final enfoYCement penalties assessed to the operator, and a quarterly report that includes a section on enforcement trends 39 However, this general information does not help citizens to monitor specific operations or operators. There is currently no way forTexas citizens to easily track and find detailed information on violations, enforcement actions and penalties related to oil and gas facilities in their neigh- borhood or state. States such as Pennsylvania and Colorado provide this information to the public.40 The Path Forward No matter how strong the statutory or regulatory standards for oil and gas development, inadequate enforcement of those standards guarantees irresponsible development. To make oil and gas enforcement more than an afterthought, the RRC needs new enforcement rules and practices. They should inclede: INSPECTIONS • Develop comprehensive and binding inspection protocols. • Establish minimum inspector-to-well and annual-inspec- tions-to-well ratios. New wells must not be allowed until the state can effectively manage existing operations. • Pay inspectors competitive salaries in order to retain high quality personnel and ensure competent inspections. In 2010, the RCC acknawledged that the lack of staff resulted in a reactive approach, and they could do "mare with increased funding and staffing levels." ENFORCEMENT ACTIONS • Establish binding criteria fortaking enforcement actions and levying penalties. • Increase the use of enforcement actions to deter would-be violators. • Assess higher minimum and maximum penalties and utilize penalty enhancements for repeat violators to the maximum extent possible. • Increase the use of severances and seals to encourage com- pliance with field rule violations. To enhance their effective- ness, add more enforcement staff to ensure that wells are physically sealed to stop production. • Establish and enforce a penalty policy to enable RRC to col- lect penalties equivalent to the value of the economic ben- efit that oil and gas operators gain from noncompliance with oil and gas laws. ACCOUNTABILITY ANDTHE PUBLIC'S ROLE • Collect comprehensive data regarding citizen complaints — including facilities of concern, nature of complaint, and resofution. Ensure thatviolations found as a result ofcitizen complaints are consistently enforced. • Publish comprehensive oil and gas enforcement data (com- plaints, inspections, violations, enforcement actions taken, and penalties levied/collected) online, in a publicly accessi- ble, searchable format. Make data available by operator and on a well-by-well basis and by bulk download. For a more detailed analysis of oil and gas enforcement in Texas, visit Earthworks'Texas Enforcement web page: http://enforcement-bc.earthworksaction.org ENDNOTES 1 Railroad Commisslon ofTexas (RRC). June 18, 2010. Strategic Plan for the Flscal Years 2011 to 2015. p.16. http://www.rrc.state.tx.us/abouVsta[planl0/ stratplan2011-2015.pdf 2 Between 20D6 and 2017 equipment failure caused a total of 2,631 spllls at tank batterles -45 of which polluted water. (Source: Railroad Commiss(on ofTexas web site: "Crude 011, Gas Well Llqufds or Associated ProdUCts (H-8) Loss Reports." http://www.rrc.state.bc.us/environmenta I/spills/h6s/index.php) See Earthworks ta61e:"Operators with Crude Oil/Gas Product Spllls from Equlpment Fa(lures atTank Batteries"to find data for the spills chart: http:// www.earthworksaction.org/I mages/uploadslTexas_tank_battery_spilis_ta ble_ faotnotes.gff 3 See EarthWOrks table:"Texas Railroad Commission Inspection Data"fordata and references: httpJlwww.earthworksaction.org/images/uploads/iexas_ i n spect lo n_data_foot notes.g if 4 ibid. 5"In Ilght of increased responsibility and industry activity, demands on the districts have Increased significantly over the last severel years... Until staffing Ievels are increased to reflect the magnitude of our �ast responsibilities our function in the field will continue to be governed by"reactive"activities as opposed to proadfve activltles:'(Source: Ross, Charles C. Deputy Director, Field Operafions, Railroad Commission ofTexas. February 1, 2070."Fleld Operatlons: Job Prioritles."Obtalned from TX RRC Open Records Coordinator, Debra Ravel, vla ema(I. Sept. 29, 2011.) 6 See endnote 3. 7 Inspection goal from: RRC Operating Budget for the Fiscal Year 2012. Strategy IIIA., page 15 of 29. http:1/www.rrc.state.bc.us/abouUdivislons/opBudget.pdf Oil and gas adivity data:There were 4,043 more wells drllled and completed in Texas between January and July of 2012 than during the same period in 2011. (Source: RRC web site. "Monthly Drllling, Completion, and Plugging Summaries:' July 2072. http://www.rrc.state.tx.us/data/drllling/drlllingsummary/index.php 8 2009 data on inspections and o(I and gas facflltles from: RRC. August 2010. Leglslative Appropriations Request for Fiscal Years 2012-2013.3.A. Strategy Request, page 19 of 28. httpJ/www.rrc.state.bc.us/abouUdivisions/RRC2012- 73LAR.pdf 2011 data from: RRC, August 2012. Legislative Approprlations Request for Fiscal Years zot4-2o15. 3.A. Strategy Request, page 25 of51. httpJ/www.rrc.state.bc.us/ a bouVdivis i on s/201415 LA R.pdf 9 See Earthworks table:'Texas inspections and Violations Data (2006-2010) for data sources: http://www.earthworksaction.org/images/uploadslfexas_inspections_ viol atlo ns_data_footnote s.g If 10 See Earthworks'table"Oil and Gas Violations and Inspections by State (2010)" for data sources: http:!/www.earthworksaction.org/images/uploadsffexas_ violatiohs_per_inspection_footnotes.g If 11 Sunset Advlsory Commission. July 2017. Final Report- Rallroad Commission of Texas. p. 2. http://www.sunsetstate.bc.us/82ndReportslRCTIRCT_FR.pdf 12 RRC Quarterly Report on OII & Gas Enforcement Data -Third Quarter 2012. http:l/ www.rrc.state.bc.us/compliance/complaints/Riderl7} rdQTR_FY7 2.pdf 13 The actual test is generally elther a static well fluld level test (FL) or a mechanical Integriry test (MIT). (Source: RRC ofTexas web site:"H-15 Program -Test(ng ofOldet Ina�t(ve Wells Over 25 Years Old Frequently Asked Questfons (FAQs):' http://www.rrc.state.bc.us/abouUiaqs/hl5faqs.php) According to the severance database, (ailure [o file the H-15 test report fs a violatlon of Statewide Rule 14(B) (2).For an example, see httpJlpreview.tfnyurl.com/ckbt5dx). 14 Severance Query.0il Lease NoJ6as Well ID No: =01193. Vew results a[: http:// tinyurl.com/31aJh5s 15 See endnote 11., pp.33, 34. 16 In the first three quarters of 2012, the RRC documented 40,575 violations and referred s20 (2.029'0) for enforcement. RRC Quarterly Report on 011 & Gas Enforcement Data -Third Quarter 2012. http://www.rrc.state.bc.us/compllance/ complaintslRlderl7_3rdQTR_FY12.pdf 5ee Earthworks'table"RRC Enforcement Statistics"fordataon years 2006-2071. http:/1www.earthworksaction.org/ i mages/u pl oad s/iexa s_enforcement_data_footnotes.g if 17 See Earthworks'table "Comparison ofstate enforcement rates (2010)"for data sources: http://www.earthworksactlon.org/images/uploads/Texas_comparison_ of enforcement_data_footnotes.gif Endorsing Organizations EnvironmentTexas Downwinders At Risk WestchesterAssociationofHomeowners AirAllianceHouston Texas Drought Project Gartlendale Accountability Project, Inc EARTH\'VORKS � OIL & GAS ACCOUNTABILITY PROJEQ x`"`?*� TEXAS � �� aGAP X � OIL&oASACCUUNfABILITYPROJEGf , OGAP 18 See endnote 11„ p.33. 19 Williams,Michael.Dec.21,2010.TestimonybeforetheTexasSunsetAdvisory Commission. httpJ/www.sunset.state.bc.us/82ndreports/rcUresponses/7 35.pdf 20 Texas Administrat(ve Code.Title 16, Part 7, Chapter 3, Rule §3.73. Pipellne Connect(on; Cancellatlon ofCertificate of Compilance; Severance. http://info, sosstate.tx, us/p I s/pu b/rea dtac$ext.Tac Pa ge?s1=R&a pp=9 &p_d I r=&p_rloc=& p_ tloc=&p_plor-&pg=1$p_tar-&ti=16&pt=1 &ch=3$r1=73 21 March 2003. "RRC Bags Bad Operator - Begins Era of Strong Enforcement; News from Rallroad Commission Chairman Michael L. Wllllams. httpJ/www.rrestate. tx.us/pressrel eases/2003/030312.php 22 Earthworks was told by RRC compiiance and field operations staff that because the agency is understaffed it could be a month or more before Inspedors physically get to wells that have been severed-ifthey make it there at all. Pers. Comm. Lisa Sumi and RRC staff. September, 2011. 23 See Earthworks'table'Texas Outstand(ng and Resolved Severances and Seals"for data sources: http://www.earthworksaction.org/imagesluploads(Texas_table_ resolved_severa nces_footnotes.glf 24 Soraghan, M. Apr(I 4, z012. "Enforcement: Texas inspectors use their strongest punishment against paper violations;'Ene�gyWire. http:/{www.eenews.net/ publiclenergywire/207 2/04/04/1 25 See Earthworks'table"Severances/Seals Issued for Field Rule Violations"for data sources: http://www.earthworksaction.org/images/uploadsfTexas_field_rule_ severances_table.g if 26 See endnote 11., p. 33. 27 For penalty data see source in endnote 11, p.33. For referral data see"Burled secrets -gas drllling's environmental impact;'Propublica. httpJlprojects. propubllca.org/gas-d rilli ng-regulatory-staffinglstates/TX 28 Data for first three quarters offiscal year 2012. (Source: RRC. Rider 17 3rd quarter report, http://www.rrc.state.tx.us/compliance/complalnts/Riderl7_3rdQTR_ FY7 2.pdf) 29 In 1983 theTexas Legislature authorized the �ommission to assess administrative penaltles of up to $10,000 per dayfor a vlolat(on ofits environmental or safety rules. (Source: RRC."Surface Waste Management Manual:' http:/lwww.rrc.state.bc.us/forms/publ icatlons/ SurfaceWasteManagementManual/chapterl.php).Thls is stlll the maximum. (Source:Texas Natural Resources Code.Section 81.0531. http:l/www.statutes. Iegis.state.tx.us/Docs/NR/htm/NR.61.htm#81.0531) 30 U.S. Bureau ofLaborStatistfcs."CPI Inflatlon Calculator."http://www.bls.gov/data/ inflation calculator.htm 31 House BIII 1950, became Pennsylvania Act 13, Feb.14, 2012. See § 3256. Clvil Penalties. http://www.legls.state.pa.us/WU01/LI/LI/US/HTM/2012/0/0013..HTM 32 RRC ofTexas. Rule 3.107: Penalty Gufdelines for Oil and Gas Vfolations. Adopted August 7, 2012. http://wwwsos.state.tx.us/texreg/archive/August242012/ a dopted/ 16. ECONOM IC4620REGU L ATI O N.htm l#221 33 Texas Commission on Environmental Quallty. Oct. 2011. "Penalty Pollcy:'Office of Compllance and Enforcement/ Enforcement Division. p.18. http:/{www.tceq. texas.gov/assets/publ ic/com m_exec/pubs/rg/rg253/penalrypolicy2071.pdf 34 See endnote 11., p.35. 35 RailroadCommissionofTexas.5ept.2009.SeIfEvaluatlonReport.Submitted to the Sunset Advisory Commisslon. p.102. http:/1www.sunset.state. tx.us/82 n dre po rts/ rct/ser.pdf 36 See endnote 11., p.35. 37 See endnote 11., p.35, 38 May 22, 2012. "At theTexas Railroad Commisslon, the publ(c comes last:' Editorial. Star-Telegrarri. http://www.star-telegram.com/2012/OS/22/3979334/at-the- texas-rafl road-commission.html#storylink=cpy 39 General Appropriations Act for the 2012-13 B(ennlum.82ndTexas Legisl�ture Regular Sesslon, 2011. Sept.12, 2011. p. VI-60. http://www.lbb.state.tx.us/B(II_82/ GAA.pdf 40 Find out more by visiting Earthworks'Texas Enforcement - Publlc Particfpation web page: http://www.earthworksaction.org/issues/detafl/texas_oil_gas_ e n forcement_th e�u bl Ics_rol e Mountain Creek Neighborhood Alliance North CentralTexas Communities Aliiance, NCTCA Clean Water Adion Safe Fracking Coalition Pu61ic Citizen Lone Star Chapter, Sierra Club Texas Oil & Gas Accountability Project 101 C North Greenville Ave.#317 • Allen,Texas 75002 940-389-1622 • http://texasogap.earthworksaction.org EARTHWORKS • 1612 K St., NW, Suite 808 Washington, D.C., USA 20006 www.earthworksaction.org • www.ogap.org