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February 04, 2014 Agenda
AGENDA CITY OF DENTON CITY COUNCIL February 4, 2014 After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, February 4, 2014 at 4:30 p.m. in the Council Work 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 speak on Consent Agenda Items only. Each speaker 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 February 4, 2014. 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. Certain Public Power Utilities: Competitive Matters — Under Texas Government Code, Section 551.086; and Consultation with Attorneys — Under Texas Government Code, Section 551.071. 1. Receive a presentation from Denton Municipal Electric ( "DME ") staff regarding certain public power competitive, financial and commercial information relating to issues regarding its proposed Energy Risk Management Policy that deals with bidding and pricing information for purchased power, generation and fuel, and Electric Reliability Council of Texas (ERCOT) bids, prices, offers and related services and strategies, and the terms and authorizations related thereto, as well as other public power information. Consultation with the City's attorneys regarding legal issues associated with the Energy Risk Management Policy 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. Discuss, deliberate, provide staff with direction. City of Denton City Council Agenda February 4, 2014 Page 2 B. Consultation with Attorneys — Under Texas Government Code, Section 551.071; Deliberations regarding Real Property — Under Texas Government Code, Section 551.072. 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 B.B.B. & C.R.R Co. Survey, Abstract No. 196 and the W. Roark Survey, Abstract 1087, both in Denton County, Texas, and located generally along the north side of the meanders of the Hickory Creek tributary, between U.S. Highway 377 and F.M. Road 1830. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition or condemnation of the real property interests 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. (Hickory Creek Basin Sanitary Sewer Peak Flow Storage 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 in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, and generally located in the 2500 block of East McKinney Street. 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. (Tyson Heirs — 69kV Transmission Line Re -build Project P4) C. Consultation with Attorneys — Under Texas Government Code, Section 551.071. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with Gas Well Ordinance regulation of gas well drilling and production within the City Limits and the extraterritorial jurisdiction, including Constitutional limitations, statutory limitations upon municipal regulatory authority, 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. 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, as well as possible negotiated resolutions of such matters, 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. City of Denton City Council Agenda February 4, 2014 Page 3 ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOVT. CODE, §551.001, ET SE Q. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN 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 "Honor the Texas Flag — I pledge allegiance to thee, Texas, one state under God, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations /Awards 1. UNT Heart of Dallas Bowl Win Proclamation 2. National Wear Red Day 3. CITIZEN REPORTS A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: 1. Dr. Herb Phelan from UT Southwestern Medical Center in Dallas regarding traumatic injury studies. 2. Camilo Ruggero regarding noise nuisance from drilling in South Lakes Park. 3. Rebecca Lindrose regarding Southridge drilling. 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 background 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 — AA). 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. City of Denton City Council Agenda February 4, 2014 Page 4 If no items are pulled, Consent Agenda Items A — AA 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 adoption of an ordinance of the City of Denton, Texas prohibiting parking on both sides of Wainwright Street from its intersection with Prairie Street to its intersection with Sycamore Street; providing a repealer clause; repealing Ordinance 57 -10; providing a savings clause; providing for a penalty not to exceed $500 for violations of this ordinance; providing that violations of this ordinance shall be governed by Chapter 18 of the Code of Ordinances of the City of Denton; and providing for an effective date. The Traffic Safety Commission recommends approval (5 -0). B Consider adoption of an ordinance accepting competitive bids by way of a Cooperative Purchasing Program Participation Agreement with the City of Cedar Hill under Section 271.102 of the Local Government Code, for the purchase of Emergency Medical Services (EMS) medical supplies for the City of Denton Fire Department; providing for the expenditure of funds therefor; and providing an effective date (File 5427— awarded to Bound Tree Medical in the estimated annual amount of $125,000 for a three (3) year total amount not -to- exceed $375,000). C. Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the constriction of the Pecan Creek Water Reclamation Plant Administration Building; providing for the expenditure of funds therefor; and providing an effective date (RFP 5240— awarded to Schmoldt Constriction, Inc. in an amount not -to- exceed $1,290,700). The Public Utilities Board recommends approval (6 -0). D. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a three (3) year Professional Services Agreement for traffic signal design and constriction plans for thirty (30) City of Denton intersections with Binldey & Barfield /C &P, Inc. in an amount not -to- exceed $550,500; providing for the expenditure of funds therefor; and providing an effective date (File 5461— awarded to Binldey & Barfield /C &P, Inc.). E. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of a Laboratory Information Management System (LIMS) and a three (3) year software maintenance agreement for continued vendor support of the software, 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 5441 awarded to LabWare, Inc. in the three (3) year not -to- exceed amount of $72,840). The Public Utilities Board recommends approval (6 -0). F. Consider adoption of an ordinance accepting competitive proposals and awarding an initial one (1) year contract with the option to extend for two (2) additional one (1) year periods for the supply of electric utility distribution hardware, connectors, arms, and accessories for the City of Denton Distribution Center; City of Denton City Council Agenda February 4, 2014 Page 5 providing for the expenditure of funds therefor; and providing an effective date (RFP 5392— awarded to multiple vendors as shown on Exhibit A in the annual estimated amount of $1,283,667 for a three (3) year not -to- exceed amount of $3,851,001). G. Consider adoption of an ordinance accepting competitive proposals and awarding an initial one (1) year contract with the option to extend for two (2) additional one (1) year periods for the supply of traffic signal poles for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 5429— awarded to Structural and Steel Products, Inc. in the annual estimated amount of $869,430 for a three (3) year not -to- exceed amount of $2,608,290). H. Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply and installation of a moveable wall system (funded 100 percent by a United States Department of Justice Congressionally Selected Award) for the City of Denton Public Safety Training Facility; providing for the expenditure of funds therefor; and providing an effective date (RFP 5301 — awarded to Hufcor Texas Group in the not -to- exceed amount of $330,529.76). L Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase by the City of Denton, Texas of Forward Marketing Modeling Software in support of the Energy Marketing Organization of Denton Municipal Electric from LCG Consulting in an amount not -to- exceed $309,000; providing for the expenditure of funds therefor; and providing an effective date (RFP 5424— awarded to LCG Consulting in the not -to- exceed amount of $309,000). The Public Utilities Board recommends approval (6 -0). J. Consider adoption of an ordinance accepting competitive proposals and awarding a contract for linear motion shaker mud cleaner for the City of Denton Landfill Wheel Wash Facility; providing for the expenditure of funds therefor; and providing an effective date (RFP 5291— awarded to Tri -Flo International, Inc. in the not -to- exceed amount of $125,051.72). The Public Utilities Board recommends approval (6 -0). K. 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 Paul - Emile Baudouin and Benjamin Parker Baudouin as Owner (herein so called), and the City of Denton, Texas, as Buyer, regarding the sale and purchase of fee simple to two tracts identified as a 22.41 acre tract, more or less, and a 27.93 acre tract, more or less, both situated in the B.B.B. & C.R.R. Co. Survey, Abstract No. 196, located in the City of Denton, Denton County, Texas, as more particularly described in the Contract of Sale, located generally in the 3700 Block of Country Club Road (the "Property Interests "), for the purchase price of Four Hundred Seventy Five Thousand Dollars and No Cents ($475,000.00), and other consideration, as prescribed in the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. City of Denton City Council Agenda February 4, 2014 Page 6 L. 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 Carla Gates Hopper, individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased, and Barbara Gates Laughlin individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased as Owner (herein so called), and the City of Denton, Texas, as Buyer, regarding the sale and purchase of fee simple to two tracts identified as a 12.48 acre tract, more or less, and a 38.01 acre tract, more or less, both situated in the B.B.B. & C.R.R. Co. Survey, Abstract No. 196, located in the City of Denton, Denton County, Texas, as more particularly described in the Contract of Sale, located generally in the 3800 Block of Country Club Road (the "Property Interests "), for the purchase price of Three Hundred Thousand Dollars and No Cents ($300,000.00), and other consideration, as prescribed in the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. M. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and The University of North Texas for the purpose of hosting the African Cultural Festival; providing for the expenditure of funds therefore; and providing for an effective date. ($600) N. Consider a request for an exception to the Noise Ordinance for the purpose of the Thin Line Film and Music Festival. The event will be held on City property, in the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland streets, beginning on Wednesday, February 12, from 6 until 10:30 p.m., Thursday, February 13, from 2 until 10:30 p.m., Friday, February 14 from 2 until 10:30 p.m., Saturday, February 15 from 10 a.m. until 10:30 p.m., and concludes on Sunday, February 16 from noon until 10:30 p.m. The exception is specifically requested to increase sound levels from 70 to 75 decibels, an extension of hours from 10 to 10:30 p.m., and for amplified sound on Sunday. Staff recommends approval. O. Consider adoption of an ordinance adopting a one time rental policy and a schedule of rental fees for the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets, for a one time use by the Thin Line Film Festival, and providing an effective date. P. Consider approval of a resolution allowing Sweetwater Grill & Tavern to be the sole participant allowed to sell alcoholic beverages at the Thin Line Festival, to be held the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets on February 12, 2014, 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 approval. Q. Consider approval of a resolution allowing Rubber Gloves Rehearsal Studios, to be the sole participant allowed to sell alcoholic beverages at the Thin Line Festival, to be held the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets on February 13, 2014, 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 approval. City of Denton City Council Agenda February 4, 2014 Page 7 R. Consider approval of a resolution allowing Dan's Silverleaf, to be the sole participant allowed to sell alcoholic beverages at the Thin Line Festival, to be held the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets on February 14, 2014, 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 approval. S. Consider approval of a resolution allowing Bostick, Banks, LLC, dba The LABB, to be the sole participant allowed to sell alcoholic beverages at the Thin Line Festival, to be held the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets on February 15, 2014, 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 approval. T. Consider approval of a resolution allowing JAG Private Club, Inc, dba Dusty's Bar & Grill, to be the sole participant allowed to sell alcoholic beverages at the Thin Line Festival, to be held the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets on February 16, 2014, 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 approval. U. 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 as Exhibit "A ", by and between Nettie Jane Nicldess (the "Owner "), and the City of Denton (the "City "), regarding the sale by Owner and purchase by the City of a fee interest in land consisting of 1.127 acres being situated in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, located generally in the 2500 block of East McKinney Street, for the public use of expansion, constriction, maintenance, operation, and improvement of electric transmission and distribution lines, facilities, and strictures, the "Project ", for the purchase price of Sixteen Thousand Six Hundred Dollars and 00 /100 ($16,600.00); as prescribed in the Contract of Sale; 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; and providing an effective date. (69kV Transmission Line Re- build Project P4) The Public Utilities Board recommends approval (6 -0). V. 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 as Exhibit "A ", by and between Shirley Jeannene Wright McCrory, Independent Executor of the Estate of Ruthie Frances Tyson Wright, deceased (the "Owner"), and the City of Denton (the "City "), regarding the sale by Owner and purchase by the City of a fee interest in land consisting of 1.127 acres being situated in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, located generally in the 2500 block of East McKinney Street, for the public use of expansion, City of Denton City Council Agenda February 4, 2014 Page 8 constriction, maintenance, operation, and improvement of electric transmission and distribution lines, facilities, and strictures, the "Project', for the purchase price of Sixteen Thousand Six Hundred Seven Dollars and 00 /100 ($16,607.00); as prescribed in the Contract of Sale; 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; and providing an effective date. (69kV Transmission Line Re -build Project P4) The Public Utilities Board recommends approval (6 -0). W. 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 as Exhibit "A ", by and between William "Bill" Jenkins (the "Owner "), and the City of Denton (the "City "), regarding the sale by Owner and purchase by the City of a fee interest in land consisting of 1.127 acres being situated in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, located generally in the 2500 block of East McKinney Street, for the public use of expansion, constriction, maintenance, operation, and improvement of electric transmission and distribution lines, facilities, and strictures, the "Project', for the purchase price of Two Thousand Five Hundred Dollars and 00 /100 ($2,500.00); as prescribed in the Contract of Sale; 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; and providing an effective date. (69kV Transmission Line Re- build Project P4) The Public Utilities Board recommends approval (6 -0). X. Consider approval of the minutes of: December 2, 2013 December 3, 2013 December 10, 2013 December 17, 2013 December 19, 2013 Y. Consider adoption of an ordinance of the City of Denton, Texas, appointing Robin A. Ramsay as Presiding Judge for the City of Denton Municipal Court of Record; establishing a term of office for the presiding municipal judge in accordance with applicable state statutes; providing for renewal and extension of terms absent specific action by Council; authorizing the Mayor to execute a contract for term of office; and declaring an effective date. Z. 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 making 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. City of Denton City Council Agenda February 4, 2014 Page 9 AA. Consider adoption of an ordinance amending Ordinance No. 2012 -366, by establishing term limits for the Board of Directors for Tax Increment Reinvestment Zone Number Two concurrent with the terms of the Economic Development Partnership Board; repealing all conflicting ordinances and portions thereof, and providing an effective date. 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. Consider adoption of an ordinance of the City of Denton, Texas amending Ordinance No. 2013 -330 to extend a "Standstill Agreement" between the City of Denton, Texas and EagleRidge Operating, LLC until midnight on March 4 2014, and retroactive to 11:59 p.m., January 31, 2014, with regard to certain disputes and issues over gas drilling in the City to allow the parties an opportunity to engage in global settlement negotiations as it concerns unresolved issues between them; and providing for an effective date. 6. PUBLIC HEARINGS A. Hold a public hearing and consider approval of the site proposed for reconstruction of the existing North Lakes Substation located north of Riney Road and east of Bonnie Brae Street in the northern area of Denton Municipal Electric's certificated service territory, in Denton County, Texas. The Public Utilities Board recommends approval (6 -0). B. Hold a public hearing and consider approval of the site proposed for reconstruction of the Arco Substation located northeast of the intersection of Geesling Road and Blagg Road in the eastern area of Denton Municipal Electric's certificated service territory, in Denton County, Texas. The Public Utilities Board recommends approval (6 -0). 7. CITIZEN REPORTS A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: 1. Jeremy Wells regarding fracking concerns. 2. Monica Jones regarding high utility bills for persons on a fixed income. 3. Billy Brown regarding fracking. 4. Jerome Riser regarding the Police Department, City Attorney's Office and several other local officials. 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 taken, to include: City of Denton City Council Agenda February 4, 2014 Page 10 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 reminder 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. 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 meeting was posted on the bulletin board at the City Hall of the City of Denton, Texas, on the day of 2014 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349 -8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1- 800- RELAY- TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. Corr se i3O geu..A AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Transportation ACM: Jon Fortune SUBJECT Consider the adoption of an ordinance of the City of Denton, Texas prohibiting parking on both sides of Wainwright Street from its intersection with Prairie Street to its intersection with Sycamore Street; providing a repealer clause; repealing Ordinance 57 -10; providing a savings clause; providing for a penalty not to exceed $500 for violations of this ordinance; providing that violations of this ordinance shall be governed by Chapter 18 of the Code of Ordinances of the City of Denton; and providing for an effective date. (Traffic Safety Commission recommends approval, 5 -0) BACKGROUND On September 9, 2013, the Traffic Safety Commission received a report from the City of Denton's Engineering section regarding a request from the Police Department to consider the recommendation of an ordinance to establish a no parking any time restriction for both the east and west side of Wainwright from Prairie to Sycamore to provide adequate access to the area for public safety vehicles. Staff reported that Wainwright, between Prairie and Sycamore, is approximately 25 feet in width and experiences heavy on- street parking on both sides due to the recent development of multi - family residential units on the west side of Wainwright. It was reported that residents from the single family residential units on the east side of Wainwright also utilize on- street parking. Staff advised the Commission the Fire Department will respond to the multi -story apartments with equipment requiring a minimum street width of 20 feet. This minimum width will allow for the safe deployment of stabilizers on the aerial equipment. The Traffic Safety Commission tabled the discussion in on the proposal in September and requested staff to bring the item back at a later date with information on the development review process for multi - family development and parking requirements in downtown. The Commission also requested that options be reviewed to allow for parking on the east side of the subject roadway to maintain some on- street parking in consideration of the single family homes located on the east side of Wainwright. While preparing the backup for the follow up briefing on this item, staff discovered Ordinance 57 -10 approved by the Denton City Council on March 26, 1957. Ordinance 57 -10, attached as Exhibit 1, establishes a 20 foot wide private fire lane on the west side of Wainwright, from Prairie to Sycamore. This private fire lane is not currently marked nor is it enforced. Due to the existing width of the street, the fire lane in effect establishes no parking on both sides of the subject roadway. Wainwright should have signs posted notifying motorist of the fire lane and the parking restriction on the west curb of Wainwright in the identified area. Additionally, an on- street fire lane should be established (painted) on the pavement 20 feet east of the west curb. Agenda Information Sheet February 4, 2014 Page 2 of 2 The pavement marking would establish the eastern edge of the fire lane, thereby restricting parking along the east curb as the street is approximately 25 feet in width throughout the subject area. The current street width does not provide sufficient capacity to legally permit on- street parking on the east side of Wainwright between Prairie and Sycamore as the fire code requires a public roadway to be a minimum of 26 feet in width to allow on- street parking on one side. This requirement is necessary to provide adequate space to safely maneuver and deploy Fire Department equipment in the roadway. The Traffic Safety Commission recommended Option 1; restrict parking on both sides of Wainwright from Prairie to Sycamore and repeal Ordinance 57 -10, in a 5 -0 vote at their December 2013 meeting. Because this no parking restriction was originated by staff for public safety, no formal petition was circulated. Staff did place door hangars on both sides of Wainwright from Prairie to Sycamore advising of the proposal to no park Wainwright. To date, staff has not received any comments or concerns on the proposal to no park both sides of Wainwright.ro OPTIONS 1. Recommend approval of an ordinance to restrict parking on both sides of Wainwright and repeal Ordinance 57 -10 2. Recommend staff to install requisite signage on Wainwright to enforce Ordinance 57 -10 3. Recommend approval of an ordinance to restrict parking on the west side of Wainwright seeking a variance to the Fire Code RECOMMENDATION The Traffic Safety Commission recommends Option 1, 5 -0. Staff recommends Option 1. PRIOR ACTION/REVIEW Traffic Safety Commission tabled discussion on a proposal to no park both sides of Wainwright at their September 9, 2013 meeting. The Traffic Safety Commission voted 5 -0 on December 2, 2013, recommending the Denton City Council consider Option 1. EXHIBITS 1. Ordinance 57 -10 2. Site Map 3 . Ordinance Respectfully submitted: Mark Nelson Transportation Director EXHIBIT 1 EVIWAO /s/ Chas. S. Floyd RE, y o ss on City of Denton, Texas C y C N SITE MAP EXHIBIT 2 I0.4:II:]Irt7 \ \codad \departments\Legal \Our Documents \0rdinances \1 4\No Parking Wainwright (2).doc EXHIBIT 3 W' 1 10kM M161 AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROHIBITING PARKING ON BOTH SIDES OF WAINWRIGHT STREET FROM ITS INTERSECTION WITH PRAIRIE STREET TO ITS INTERSECTION WITH SYCAMORE STREET; PROVIDING A REPEALER CLAUSE; REPEALING ORDINANCE 57 -10; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF THIS ORDINANCE; PROVIDING THAT VIOLATIONS OF THIS ORDINANCE SHALL BE GOVERNED BY CHAPTER 18 OF THE CODE OF ORDINANCES OF THE CITY OF DENTON; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. When signs and /or marking or any combination thereof are in place giving notice thereof, no person shall park a vehicle on either side of Wainwright Street from its intersection with Prairie Street to its intersection with Sycamore Street. SECTION 2. The provisions of Section 1 prohibiting the parking of vehicles shall apply on the designated portion of the above named street or streets except when it is necessary to stop a vehicle to avoid conflict with other traffic or in compliance with the direction of a police officer or official traffic control device. SECTION 3. All provisions of the ordinances of the City of Denton in conflict with the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of the City of Denton, not in conflict with the provisions of this ordinance, shall remain in full force and effect. SECTION 4. Ordinance Number 57 -10 is hereby repealed. SECTION 5. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any invalidity. SECTION 6. Save and except as amended hereby, all the provisions, sections, subsections, paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. SECTION 7. Any person found liable of violating this Ordinance by a court of competent jurisdiction shall be fined a sum not to exceed five hundred dollars ($500). Each day that a provision of this ordinance is violated shall constitute a separate offense. The disposition of parking citations issued pursuant to this Ordinance shall be governed by Division 3 titled "Parking Violations Division" of Chapter 18 of the Code of Ordinances. SECTION 8. This Ordinance providing for a penalty 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, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2014. ATTEST: JENNIFER WALTERS, CITY SECRETARY RN APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 2 MARK A. BURROUGHS, MAYOR AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Ross Chadwick 349 -8832 ACM: Bryan Langley � -A SUBJECT Consider adoption of an ordinance accepting competitive bids by way of a Cooperative Purchasing Program Participation Agreement with the City of Cedar Hill under section 271.102 of the Local Government Code, for the purchase of Emergency Medical Services (EMS) medical supplies for the City of Denton Fire Department; providing for the expenditure of funds therefor; and providing an effective date (File 5427- awarded to Bound Tree Medical in the estimated annual amount of $125,000 for a three (3) year total amount not -to- exceed $375,000). FILE INFORMATION Prior to 2009, EMS supplies were ordered and maintained as working capital Distribution Center items. In July 2009, the City of Denton Fire Department began purchasing medical supplies and medications directly from Bound Tree Medical through a Cooperative Purchasing Agreement with the City of Carrollton. This allows each individual fire station to order and maintain supplies as needed for par level and replacement. Order requests are placed online and are reviewed and approved by the EMS Battalion Chief before the order is processed. Supplies and medications are then shipped directly to the requesting station. The Cooperative Purchasing Agreement with the City of Carrollton expired on December 31, 2013, but Bound Tree Medical does have a current contract with the City of Cedar Hill for medical supplies. A review of the Cedar Hill contract revealed lower costs for many of the individual items commonly used by the Department. When compared to the previous contract with the City of Carrollton, the Cedar Hill contract offers a larger number of items available on the contract and an average of twenty percent cost savings for the majority of the items used by the Denton EMS staff. Staff is not aware of any local vendors that can provide the volume of supplies required for the EMS operation. Therefore, staff is recommending awarding a contract for EMS medical supplies to Bound Tree Medical through a Cooperative Purchasing Agreement with the City of Cedar Hill. This will allow the City of Denton Fire Department to continue obtaining vital EMS supplies without interruption and has the potential for cost savings. RECOMMENDATION Award a contract for EMS medical supplies to Bound Tree Medical in the estimated annual amount of $125,000 for a three (3) year total amount not -to- exceed $375,000. Agenda Information Sheet February 4, 2014 Page 2 PRINCIPAL PLACE OF BUSINESS Bound Tree Medical Dublin, OH ESTIMATED SCHEDULE OF PROJECT The delivery of specific orders can be completed in 2 -5 days after receipt of an order. The Cedar Hill contract with Bound Tree Medical expires on March 26, 2016. FISCAL INFORMATION Annual expenditures are estimated at $125,000. Under a three (3) year agreement, expenditures are not -to- exceed $375,000. The supplies will be funded from account 320100.6336. EXHIBITS Exhibit 1: Bound Tree Bid Packet with Pricing Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance I -.CIS -File 5427 Exhibit 1 DUE - FEBRUARY 8, 2013 2-.00PM �fIrwirgaw?f Exhibit 1 Making precious Minutes Count... 1,v BOUND TREE MEDICAL SHIPS ORDERS WITHIN 48 HOURS OF RECEIPT. ORDERS REQUIRING EXPEDITED SHIPMENT WILL BE SHIPPED AS SOON AS POSSIBLE FOLLOWING THE REQUEST ATTHE EXPENSE OF THE CUSTOMER UNLESS BOUND TREE MEDICAL ITAS COMMITTED AN ERROR WHICH REQUIRES EXPEDITED SHIPMENT. P.O Box 8023 Dublin, OH 43016 phone 614.760.5000 fax 614.760.5010 www.botindtree.com ;0 Exhibit 1 Making Precious Afinums count THE MANUFACTURER'S REPRESENTATIONS AND WARRANTIES ACCOMPANYING THE PRODUCT ARE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES YOU WILL RECEIVE. BOUND TREE MEDICAL MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER; INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABJI-,ITY, NON-FNFRrNGI:-,,MENT OR FITNESS FOR A PARTICULAR PURPOSE. RO. Box 8023 Dublin, OH 43016 phone 614.760.5000 fax 614.760.5010 www.botindtree.com Exhibit 1 1. It is the intention of these specifications that the successful vendor shall furnish the City of Cedar Hill, Texas, with medical supplies covered by this Bid Specification which the City may require during the period of time specified. The products included in this bid represent many of the products ordered most frequently by the City and are listed for bid evaluation purposes only. Actual usage and quantities will vary and ordering will be based on actual requirements. The City of Cedar Hill (lead City) has an interlocal agreement with othercities including Duncanville, De Soto and Lancaster for the purchase of medical supplies. Additionally, approximately ten additional entities have expressed interest in parficipafing in the said agreement. It is estimated that cities will expend approximately $600,000 (annually) on medical supplies and approximately $200,000 (annually) on pharmaceutical supplies. The City reserves the right to order such supplies that are necessary as may be required during the contract term, I A) All' participating cities will provide a list of authorized persons and authorized delivery destinations. The City of Cedar Hill is desirous of the following. Please specify if your firm can provide the following: Yes No (I) Ability to order from a template over the internet? X (2) Local sales representation within 100 miles? (3), Ability to requisition to a central purchaser via internet? X (4) Ability to track product usage and cost for each requisitioning entity? X (5) Ability to deliver within 48 hours With no additional charges? X (6) Ability to ship to multiple delivery destinations? X (7) Ability to track up to 24 months of purchase history (monthly)? X (8) Can additional cities purchase "off" this contact? X (9) Ability to produce quarterly consumption reports? X (10) Please include your RUSH Order policy in your bid. See Attach Exhibit 1 INVITATION TO BID & BID SPECIFICATIONS 2. The contract with the successful bidder will be awarded on the basis of a firm fixed price. The items included on the medical supplies requirement sheet represent many of the products ordered most frequently by the City and are listed forbid evaluation purposes. The City also desires to purchase from the successful bidder other medical supplies not listed on the requirement sheet. Bid award may be made in whole or part as deemed most advantageous to the City of Cedar Hill. 3. The contract awarded to the successful bidder shall be for a period of one (1) year beginning on or about March 1, 2013 and ending February 28, 2014, to include 3 additional one-year renewal options. The City of Cedar Hill reserves the right to renew this contract for the three (3) additional one-year periods under the some terms, condifions and prices (excluding the 2 percent allowance), should the City so desire and the current vendor agree. 4. Prices quoted shall remain firm for the period covered by this contract for I year. At the end of the one year obligation, if the City and successful vendor wish to renew, the vendor shall submit a letter, addressed to Greg Pervis, 285 Uptown Boulevard, Cedar Hill Texas, 75104, to address increases in excess of 2% and include the product/Excel number, please refer to Subsection A below. A) 75 days, in advance, of contract termination, a bona-fide manufacturer's documents directed to the City of Cedar Hill Purchasing Agent, of price listing (itemized) reflecting the anticipated changes (both increases and decreases) in prices. Increase for the extension shall be limited to the actual cost increase to the current vendor. 5. Product acceptability will be at the sole discretion of the City of Cedar Hill. Any product delivered which does not meet the City's specifications, or otherwise found to be defective, will be returned at the vendor's expense for replacement or credit. All products shall be of condition and quality "TO MEET ACCEPTABLE STANDARDS OF CARE." 6. Any reference to requirements in the specifications that are brand or process specific is purely for the establishment of intended quality expectations and is not to be considered a disqualifying standard. 7. The successful bidder shall make delivery of ordered supplies within 48 hours of the time the order is placed. Delivery must be made during normal working hours, Monday through Friday, 8:00 a.m. to 5.00 p.m., F.O.B. Destination: City of Cedar Hill has specified delivery locations. All unit and extensions shall include freight and other delivery charges. No med shall be shipped with an expiration date that is less than one year from the month the med was shipped. There are no minimum purchase amounts for an order and no service charges/delivery will be applied. Failure to deliver as required will result in the purchase of said order from the next highest bidder. Delivery tickets must accompany each delivery. invoices must be legibly prepared showing the full description and price of item(s) delivered Exhibit 1 4171TATIORTO BID & BID SPECIFICATIORS CONDITIONS OF BIDDING (Full compliance with the following conditions is necessary for consideration of this bid) 1. Signature: This bid must be signed by a company representative authorized to bind the offer contractually. 2. Unit Prices and Extensions: If there is a difference between unit price and their extensions, the unit price will govern. 3. Freiqht And Other Delivery ChaLges: All bids will be F.O.B. delivery address, freight prepaid. Charges will not be added after the bid is opened. The City of Cedar Hill assumes no liability for goods delivered in damaged or unacceptable condifion. The successful bidder shall handle all claims with carriers, and in case of damaged goods, shall ship replacement goods immediately upon notification by the City of damage. 4. Acceptance: The materials and/or services delivered under this bid /quote shall remain the property of the seller until a physical inspection and actual usage of these materials and/or services is accepted by the City and is to be in compliance with the terms herein, fully in accord with the specifications and of the highest quality. In the event the materials and /or services supplied to the City are found to be defective or do not conform to specifications, the City reserves the right to cancel the order upon written notice to the seller and return such product to the seller at the seller's expense. 5. Discount: Show rate, total amount, and latest day any discount will be allowed after receipt of article and correct invoice (per conditions of contract). & Payment. Net 30 days from acceptance of goods/services, receipt of original vendor invoice, and/or all other required documents required in the detailed specification of this bid/quote. 7. Firm Price: All prices quoted shall remain firm for the contract term. 8. Federal or State Taxes: The City is exempt from taxes by Federal Excise Registration #A-312726 and State Sales Permit # 75-6000-480. Exhibit 1 2011 9. _Guarantees and Warranties: Must be attached to the bid and maybe considered in awarding the bid. Sellershall guarantee and war-rant that the equipment or product offered will meet or exceed specifications identified in the bid invitation and are suitable for and will perform in accordance with their intended purpose. The seller shall, upon request, replace any equipment or product proved to be defective and make any and all adjustments necessary without any expense to the City. If at any time, the equipment or product cannot satisfactorily meet the requirements of the specifications, the Seller shall upon written request from the City, promptly remove such equipment or product Without further expense to the City At the City's request, the Vendor will provide evidence sufficient to demonstrate such equipment or product meets the foregoing. M Delivery or Contract Comoletion Time: Must be shown, as the date may, where time is of the essence, determines the contract award. Failure to state delivery time may cause bid to be rejected. Successful bidder shall notify the Purchasing Department immediately if delivery schedule cannot be met. If delay is foreseen, successful bidder shall give written notice to the Purchasing Agent. The City of Cedar Hill has the right to extend delivery time if reason appears valid. In the event delivery is not made within the stated time period (without acceptable reasons for delay and written consent from the City), the City reserves the right to place the order with the next available vendor and the successful bidder shall be liable for any increase In price as liquidated damages, it being agreed that said sum is a fair and reasonable estimate of actual damages the City will incur. Bidder will not be held liable for failure to make delivery because of strikes, conscriptions of property, governmental regulations, acts of God, or any other causes beyond its control; provided an extension of time is obtained from the Purchasing Department. 11. NO Closing & Bid Pregarafion: Sealed bids received after the bid opening date and time will not be considered. It will be the SOLE RESPONSIBILITY of bidders to ensure bids are in the possession of the City of Cedar Hill Purchasing Department by the appointed date and time. The City will not be responsible for bids which are mismarked, delivered to the wrong place, or delayed in delivery. Electronic and Facsimile transmitted bids Will not be accepted in the bid process. Each bid must be submitted in a sealed envelope bearing on the outside the name of the Bidder, his address, the name of the bid title, and bid number if any. If forwarded by mail, the sealed envelope containing the bid must be enclosed in another envelope addressed as specified in the bid form and as above. 12. Item Bid: Each bidder shall describe (per specification requirements) each item bid as to Manufacture, Brand Name, Model, etc. Items shall be NEW unless stated otherwise in the City's specifications. Any reference to model and/or make/manufacturer used in bid specifications is descriptive, not restrictive. It is used to indicate the type and quality desired. Bids on like quality will be considered. 13. Samples: Samples of items, when required, must be furnished free, and, if not called for Within 30 days from date of bid opening, will be disposed of by the City. 4 Exhibit 1 111,11.1-113101i i�iiiff gwgi[[,*W� 14 Alternates: Must clearly state "ALTERNATE" and shown on the bid form with complete information attached. Alternate bids may or may not be considered in the bid process in the sole discretion of the City of Cedar Hill. 15. Exceptions/Substituflons: All bids meeting the intent of this invitation to bid will be considered for award. Bidders taking exception to the specifications, or offering substitutions, shall state exceptions in the section provided or by attachment as part of the bid. The absence of such a list shall indicate that the bidder has not taken exceptions and City shall hold the bidder responsible to perform in strict accordance with the specifications of the invitation. 16. Ambiguity in Bids: Any ambiguity in any bid as the result of omission, error, lack of clarity, or non-compliance by the bidderwith specification, instructions, and all conditions of bidding shall be construed in the light most favorable to the City, 17. Changes or Additions: No changes or additions will be allowed after bid opening. Changes or additions submitted prior to bid opening must be in accordance with paragraph I I above. 18. Funding: Funds for payment have been provided through the requesting entity. The State of Texas statutes prohibit the obligation and expenditure of public funds beyond the fiscal year for which a budget has been approved, 19. Trade Secrets, Confidential Information and the Tg2ias Public information Act: If you consider any portion of your bid to be privileged or confidential by statute or judicial decision, including trade secrets and commercial or financial information, clearly identify those portions. The City of Cedar Hill will honor your notations of trade secrets and confidential information and decline to release such information initially, but please note that the final determination of whether a particular portion of your bid is in fact a trade secret or commercial or financial information that may be withheld from public inspection, Will be made by the Texas Attorney General or a court of competent jurisdiction. In the event a public information request is received for a portion of your bid that you have marked as privileged or confidential informatlion, you will be notified of such request and you will be required to justify your legal position in writing to the Texas Attorney General pursuant to Section 552.305 of the Government Code. In the event that it is determined by opinion or order of the Texas Attorney General or a court of competent jurisdiction that such information is in fact not privileged or confidential underSection 552.110 of the Government Code and Section 252.049 of the Local Government Code, then such information will be made available to the requester. Marking your entire bid CONFIDENTIAL/PROPRIETARY LALIII not necessarily make it or any part thereof, exempt from the public disclosure requirement of the Texas Public Information Act. Exhibit 1 INVITATION TO BID & BID SPECIFICATIONS 20. HUBI The City of Cedar Hill hereby notices all bidders that in regard to any contract entered into pursuant to this Invitation to Bid; Historically Underutilized Businesses (HUBs) will be afforded equal opportunities to submit bids and will not be discriminated against on the grounds of race, color, sex, disability, or national origin in consideration of an award. HUB(s) are defined as certified businesses that are at least 51 % owned, operated, and controlled by qualifying groups which include: Asian Pacific Americans, Black- Americans, Hispanic Americans, Native Americans, and women. 21. Any contract made, or purchase order issued, as a result of this Invitation to Bid, shall be governed under the laws of the State of Texas with performance and venue to be in Dallas County, Texas. In connection with the performance of work, the Bidder agrees to comply with the Fair Labor Standard Act, Equal Opportunity Employment Act, and all other applicable Federal, State, and Local laws, regulations, and executive orders to the extent that the same may be applicable. 22. Minimum Standards for Res onsible Prospective Bidders: A prospective bidder must affirmatively demonstrate bidder's responsibility. A prospective bidder must meet the following requirements: 1. Have adequate financial resources required, or the ability to obtain such resources as required; 2. Be able to comply With the required or proposed delivery schedule; 3. Have a satisfactory record of performance; 4. Have a satisfactory record of integrity and ethics; 5. Be otherwise qualified and eligible to receive an award, 23. Bidders may request withdrawal of a sealed proposal prior to the bid opening time provided the request for withdrawal is submitted to the City Purchasing Agent in writing. 24. Channes . in specification or interpretations: If it becomes necessary for the City to revise any part of this bid, a written addendum will be provided to all bidders. The City is not bound by and all bidders shall not rely upon any oral representations, clarifications, or changes made in the provided written specificotions by City employees, unless such clarification or change is provided to bidders in written addendum form: from the City Purchasing Agent. 25. Collusion: Any evidence of agreement or collusion among bidders and prospective bidders acting to restrain freedom of competition by agreement to bid a fixed price, or otherwise, will render the bids of such bidders void. 26. All pages of this document packet, taken together comprise the Bid. Omission ofor failure to complete or return any portion of the required documents, at the time of bid opening, may be cause to reject the entire bid. Exhibit 1 27. The City of Qgdgr Hill, as g qgvprLiMgntal gggncy of the State of Texas, may not award a governmental contract to a nonresident bidder unless the nonresident underbids the lowest bid submitted by a responsible resident bidder by an amount that is not less than the amount by which a resident bidder would be required to underbid the nonresident bidder to obtain a comparable contract in the state in which the nonresident principal place of business is located. (Government Code, section 2252.002) Bidder shall make answer to the following questions by encircling the appropriate response or completing the blank provided: 1.) is your principle place of business in the State of Texas Yes 0, 2.) If the answer to question (1) is "yes", no further information is necessary; if "no", please indicate: a.) In which state is your principal place of business located? Ohio b.) Does that state favor resident bidders (bidders in your state) by some dollqr=,-. increment or percentage? Yes c.) If yes, what is that dollar increment or percentage? NIA *The State Purchasing and General Services Commission defines Principal Place of Business as follows: 28. Principal Place of Business, means, for any type of business entity recognized in the State of Texas, that the business entity: 29. Has at least one permanent office located within the State of Texas, from which business activities other than submitting bids to governmental agencies are conducted and from which the bid is submitted, and has at least one employee who works in the Texas office. 30. Award: Unless stipulated in these bid specifications, the contract will be awarded to the lowest responsible bidder or to the bidderwho provides the goods orservices specified herein at the best value for the City. 31. Preference will be given to the vendor who is able to provide the most supplies/materials, at the most economical price. 32, Split Award: The City of Cedar Hill reserves the right to award a separate contract to separate vendors for each item/group or to award one contract for the entire bid. The vendor who is able to provide a large majority of items will be looked upon favorably. 7 Exhibit 1 INVITATION TO BID & BID SPECIFICATIONS 33. No Prohibited Interest: Bidder acknowledges and represents that they are aware of the laws, City Charter, and City Code of Conduct regarding conflicts of interest. The City Charier states that "No officer or employee of the City shall have a financial interest, direct or indirect, in any contract with the City, to the extent prohibited by state low, or shall be financially interested, directly or indirectly, in the sale to the City of any land, materials, supplies, or service where such financial interest is prohibited by state low. 34. Cooperative Purchasing: The City of Cedar Hill actively participates in cooperative purchasing opportunities. If it is determined to be in the best interest, the City reserves the right to reject any and all bids and purchase the services and/orgoods through cooperative means. 35. Inter-local Agreement: Successful bidder agrees to extend prices to all entities that have entered into orwill enter into joint purchasing interlocal cooperation agreements with the City of Cedar Hill. The City of Cedar Hill is a participating member of several interlocal cooperative purchasing agreements. As such, the City of Cedar Hill has executed Inter- local Agreements, as permitted under Chapter 791 of the Texas Government Code, wish certain other political subdivision, authorizing participation in a cooperative purchasing program. The successful vendor may be asked to provide products/services based on the bid price to any other participant. The City of Cedar Hill shall not be held responsible for any orders placed, deliveries made, or payment for materials ordered by these entities. 36. Insurance: The successful bidder shall agree to indemnify, save, hold harmless and defend the City, its officers, agents and employees with respect to any claims or demands, actions, damages, costs and expenses, including, without limitation, attorneys fees and costs of litigation, arising from the death or injury of any person whomsoever, or any loss, damage or destruction of any property whatsoever, resulting directly or indirectly from any intentional, negligent or grossly negligent act, error or omission of the successful bidder, its agents, servants, employees or other persons acting on the bidder's behalf and arising from or related to medical supplies provided by the bidder to the City. The successful bidder shall also obtain and keep in force, at its sole cost and expense, throughout the term of the agreement with the City, and in a form and with a company satisfactory to the City, the following policies of insurance: A. Commercial General Liability insurance, including coverage for products liability, with combined single limits of not less than $1,000,000.00; B. Contractual Liability insurance underwriting the indemnification, hold harmless and insurance provisions of the agreement with the City with combined single limits of not less than $1,000,000.00; 0 Exhibit 1 INVITATION TO BID & BID SPECIFICATIONS The successful bidder shall also have the City named as an additional insured on the Commercial General Liability policy, and such insurance shall contain provisions to the effect that the naming of the City as an additional insured shall not affect any recovery to which the City would be entitled under the policy if it were not so named and that the insurance is primary and shall be without contribution from any similar insurance available to the City. Certificates of insurance verifying each of the above conditions and providing for thirty (30) days' prior written notice of cancellation or reduced coverage shall be submitted to the City within thirty (30) days of the execution of the award of the contract. 37. Bid Security /Bond Requirements; If required, bi'd security shall be submitted with bids. Any bid submitted without bid bond, or cashiers /certified check, if required, shall be considered non - responsive, and will not be considered for award. Performance and /or payment bonds, when required, shall be submitted to the City, prior to commencement of any work pursuant to the agreement provisions. 38... Termination for Default: The City of Cedar Hill reserves the right to enforce the performance of this contract in any manner prescribed by law or deemed to be in the best interest of the City in the event of breach of this contract, The City reserves the right to terminate the contract immediately in the event the successful bidder fails to: (1) Meet delivery schedules; () Perform in accordance with these specifications and /or, (3) Transfers, assigns or conveys any or all of its obligations or duties to another. Breach of contract or default authorizes the City to, among other things, award to another bidder, or purchase elsewhere, THE CITY OF CEDAR HILL RESERVES THE RIGHT TO ACCEPT OR REJECT IN PART OR IN WHOLE ANY BID SUBMITTED, AND TO WAIVE ANY TECHNICALITIES DEEMED TO BE IN THE BEST INTEREST OF THE CITY, THE UNDERSIGNED HEREBY CERTIFIES THAT HE /SHE UNDERSTANDS THE SPECIFICATIONS, HAS READ THE DOCUMENT IN ITS ENTIRETY AND THAT THE BID PRICES CONTAINED IN THE BID HAVE BEEN CAREFULLY REVIEWED AND ARE SUBMITTED AS CORRECT AND FINAL. BIDDER FURTHER CERTIFIES AND AGREES TO FURNISH ANY OR ALL PRODUCTS /SERVICES UPON WHICH PRICES ARE EXTENDED AT THE PRICE OFFERED, AND UPON CONDITIONS CONTAINED IN THE SPECIFICATIONS OF THE INVITATION FOR BID. f~ Exhibit 1 INVITATION TO BID & BID SPECIFICATIONS • ili �11!1�1'1� ♦ IWAIIIIIINIF YOUR BID TO BE CONSIDERED: 1) Company Name: Bound Tree Medical, LLC 0 a — it I — 5000 Tuttle Crossing Blvd. Dublin, Ohio 43016 800-533-0523 ext. 5370 / 877-311-2437 4) Address/Phone/Fax Number of Majority Owner Priincipal Place of Business: Bems Holdings, LLC 5000 Tuttle Crossing Blvd. Dublin, Ohio 43016 5) E-mail Address of Representative: Valia.WaygBoundtree.ccm 9M Mark Dougherty - chief Financial Officer Pritnted Name 2/06/2013 Date C1 Exhibit 1 7) Vendor shall "fill in" all 125 required supplies, as well as, 542 items on the pharmaceuticals list. If a vendor is unable to obtain a particular item, please denote that item with a "N/A." 8) Please provide a pricing for quantities of: )i;, Box, > Case. 8A) Please specify your definition of "box" (10, 15, 20) etc. in the "Vendor's Comment Section." 8B) Please specify your definition of "Case" (10, 15, 20) etc. in the "Vendor's Comment Section." 91 A Pre-Bid Conference will be held at the Cedar Hill Fire Station # 1, 1212 Beltline, Cedar Hill, Texas 75106 (Training Room @ 9:00 AM). This will allow vendors the opportunity to ask questions and obtain clarity. Exhibit 1 Exhibit 1 U) z LU 0 a CL a) 4m C: 2 p C4 6^^ 0 2 ix z 0) n C5 0 LU cn 14 N C, 'o Z 0 4t 0 04 it. 0 r -4t 4t < 4t 0 4t U 0. 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AN ORDINANCE ACCEPTING COMPETITIVE BIDS BY WAY OF A COOPERATIVE PURCHASING PROGRAM PARTICIPATION AGREEMENT WITH THE CITY OF CEDAR HILL UNDER SECTION 271.102 OF THE LOCAL GOVERNMENT CODE, FOR THE PURCHASE OF EMERGENCY MEDICAL SERVICES (EMS) MEDICAL SUPPLIES FOR THE CITY OF DENTON FIRE DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5427- AWARDED TO BOUND TREE MEDICAL IN THE ESTIMATED ANNUAL AMOUNT OF $125,000 FOR A THREE (3) YEAR TOTAL AMOUNT NOT -TO- EXCEED $375,000). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to purchase Emergency Medical Services Supplies in a three (3) year not -to- exceed amount of $375,000 from Bound Tree Medical under competitive bids received by the City of Cedar Hill in accordance with an Cooperative Purchasing Program Participation Agreement under Section 271.102 of the Local Government Code which is on file in the office of the Purchasing Agent. SECTION 2. 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 File 5427 to the City Manager of the City of Denton, Texas, or his designee. SECTION 3. The City Manager, or his designee, is authorized to expend funds pursuant to the agreement for the purchase of various goods and services. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IM APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 3 -ORD -File 5427 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to PS Arora at 349 -7189 ACM: Bryan Langley � -A SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a Public Works contract for the constriction of the Pecan Creek Water Reclamation Plant Administration Building; providing for the expenditure of funds therefor; and providing an effective date (RFP 5240- awarded to Schmoldt Constriction, Inc. in an amount not -to- exceed 1,290,700). The Public Utilities Board recommends approval (6 -0). RFP INFORMATION The Pecan Creek Water Reclamation Plant ( PCWRP) Administration Building constriction is an approved Capital Improvements Plan (CIP) project to be located at 1100 Mayhill Road (location shown in Exhibit 1). The existing administration building at the PCWRP has very limited space for operations due to the Texas Commission on Environmental Quality (TCEQ) requirements regarding access to the Municipal Laboratory which is located in the same building. Pretreatment staff is currently officed in trailers due to the lack of space. The new administration building will provide offices and storage space for the Water Reclamation, Pretreatment, and Watershed staff and equipment. The building was designed by Freese & Nichols, Inc. per an engineering services contract approved by the Public Utilities Board and City Council. This item is for the constriction phase of the administration building. Request for proposals were sent to 1133 prospective suppliers, including five (5) Denton firms. Plans and specifications were placed on the Materials Management website for prospective bidders to download and the notice to prospective suppliers was advertised in the local newspaper. Four (4) responsive proposals were received (Exhibit 2). Proposals were evaluated based upon published criteria, including price, delivery and probable performance by the supplier. Information from the proposal evaluations is summarized in Exhibit 3. The proposal submitted by Schmoldt Constriction, Inc., Celina, Texas provided the highest evaluated score, and was contacted to provide a Best and Final Offer (BAFO). This negotiation resulted in a final offer of $1,290,700 which provided a savings of $49,300 to the City. The BAFO pricing is also shown on Exhibit 4. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On January 13, 2014 the Public Utilities Board recommended approval to forward this item to the City Council for consideration. Agenda Information Sheet February 4, 2014 Page 2 RECOMMENDATION Award RFP 5240 to Schmoldt Constriction, Inc. in an amount not -to- exceed 1,290,700. PRINCIPAL PLACE OF BUSINESS Schmoldt Constriction, Inc. Celina, TX ESTIMATED SCHEDULE OF PROJECT The constriction of the Administration Building is estimated to be completed within 262 calendar days of issuance of the Notice to Proceed. FISCAL INFORMATION This project will be funded from Capital Improvements Plan account 640224544.1360.40100 in the amount of $1,090,000 and account 640224521.1360.40100 in the amount of $200,700. Requisition 4117020 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: Map of Location Exhibit 2: RFP Pricing Sheet Exhibit 3: Evaluation Ranking Exhibit 4: Best and Final Offer Exhibit 5: Public Utilities Board Draft Minutes Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance 1 -.CIS -Bid 5240 RFP # 5240 Exhibit 2 DATE: 12/05/13 Description: Pecan Creek WRP Administration Building No. Qtv DESCRIPTION VENDOR VENDOR VENDOR VENDOR Schmoldt Reeder General Construction JC Commercial Construction Construction Zone of Texas Principle Place of Business: Lewisvile, TX Celina, TX Fort Worth, TX Aubrey, TX Aknowledged Addendum 1 and 2 Yes Yes Yes Yes Limited Liability 2 Type of EntitN Corporation Corporation Corporation Company 3 Total working days for substantial completion 210 285 240 157 days 3a Completion date if deadline cannot be met 31-Aug -14 Sept. 17. 2014 August 31, 2014 August 29, 2014 4 Total working days for project start 7 285 10 5 days 5 Base Bid $ 1,279,777.00 $ 1,340,000.00 $ 1,370,000.00 $ 1,353,500.00 6 Mobilization & Demobilization $ 97,000.00 $ 24,850.00 $ 95,000.00 S 16,860.65 for Project 7 Temporary Facilities and $ 29,000.00 $ 31,000.00 $ 5,000.00 S 30,293.75 Controls for Project 8 Testing Laboratory Services $ - $ - $ - S - 9 Bonds (Labor and Materials & $ 20,000.00 $ 13,500.00 $ 28,500.00 S 16,859.91 Performance to Concrete Paving $ 60,000.00 $ 22,000.00 Included in Item Included in Item 13 13 11 Earthwork $ 35,600.00 $ 38,187.00 $ 35,630.00 S 35,630.00 12 Site Utilities $ 35,300.00 $ 30,230.00 $ 95,773.00 S 42,800.00 13 Concrete Foundations/Piers $ 90,000.00 $ 146,332.00 $ 205,554.00 S 166,750.00 RFP # 5240 Exhibit 2 DATE: 12/05/13 Description: Pecan Creek WRP Administration Building 14 Building Structural framing and Metal Deck $ 106,500.00 $ 139,690.00 $ 96,826.00 S 104,632.00 15 Masonry $ 76,900.00 $ 77,900.00 $ 70,000.00 S 76,000.00 16 Drywall $ 32,000.00 $ 55,480.00 $ 83,275.00 S 100,500.00 17 Metal Stud Framing $ 60,000.00 $ 28,520.00 Includ 16 in Item S 92,000.00 18 Roofing $ 68,700.00 $ 85,000.00 $ 72,746.00 S 68,800.00 19 Mechanical $ 110,000.00 $ 90,000.00 $ 108,559.00 S 95,580.00 20 Electrical $ 135,000.00 $ 153,500.00 $ 147,986.00 S 134,100.00 21 Plumbing $ 54,800.00 $ 59,000.00 $ 50,162.00 S 54,800.00 22 Fire Suppression $ 42,300.00 $ 13,330.00 $ 54,500.00 S 54,800.00 23 Fire Alarm $ 7,000.00 $ 12,300.00 $ 10,671.00 S 16,135.00 24 AV /Security $ 11,000.00 $ - $ 20,706.00 S 16,135.00 25 All other Construction Items not noted above $ 208,677.00 $ 319,181.00 $ 189,112.00 S 230,823.74 Total Base Bid S 1,279,777.00 S 1,340,000.00 S 1,370,000.00 S 1,353,500.04 Ifaymextt Term Discounts Pavment terms for the City of Denton are typically 30 days. Please indicate the additional discount extended to each monthly invoice that is paid within the time period indicated below. Invoice Paid in 20 days 0.0000 1.0000 0.0000 0.00% Invoice Paid in 15 days 0.0000 1.0000 0.0000 0.00% Invoice Paid in 10 days 0.0000 1.0000 0.0000 1.00% *Prices shall be bid FOB Destination *In case of calculation error, unit pricing shall prevail Exhibit 3 Date: 12/31/2013 RFP # 5240 BAFO EVALUATION EVALUATION /SCORING MATRIX Title: Pecan Creek WRP Administration Building Response Date: December 5,2013,2:00 p.m. Buyer: Elton A Brock RanlunQ I Meets All Respondent Principle Place of Business Factor a - 100, vin Regs7 Schmoldt Construction Celina, Texas 10 Yes Construction Zone of Texas Aubrev, Texas Yes Reeder General Construction Ft. Worth, Texas 3 Yes JC Commercial Lewisville, Texas a Yes Evaluation Factors =100% Total Score Factor a - 100, Factor b - 200, Factor c - 100, Factor d - 600, 10 20 10 s- 88197,&8;. 10 20 9 5- 33 ii96.33�. 10 20 10 56 05 196,05'. 10 20 5 60 0(1 95,00 RFP #5240 Final Evaluation - Pecan Creek WRP Administration Building December 31, 2013 - EXHIBIT 3 Type of ProducUService Type of ProducUService ITEM EST. QTY. ITEM EST. QTY. UOM Requested Schmoldt Construction- Celina, Texas Construction Zone of Texas - Aubrey, Texas Price Score Delivery Score Price Score Delivery Score Compliance Indicators of Total Delivery Score Price Score Delivery Score Compliance Indicators of Total Product/Installadon Proposal: Price (60 %) Price (60 °k) (10 °k) /specs (20 °k) Performance Evaluated Price (60 °k) (10 °k) wlspecs (20 °k) Performance Evaluated (10 %) Score 10% Score (10 %) Score 10% Score Delivery : 8/31/14 Meet? (Choose one) YES NO Yes Yes Yes Yes P I a, detmled m Phi e I a, detmled m 1 1 1 1 EA Section II, Snbpaiagiaph A $1,340,000.00 $1,2-9,--00 $1,3�3,�00. 04 Total Proposed Cost: Total Proposed Cost: $1,340,000.00 $1,353,500.04 Per Written Pro osal $1,370,000.000 Expedited Payment Discounts $1,279,777.00 Expedited Payment Discounts hn oice Paid m 30 days 1.00 °io 0.00 °0 hn oice Paid m 30 days 0.00 °io hn oice Paid �a 15 days 100°io 0.00 °0 0.00 °0 hnoice Paid�a 15 days 0.00°io hn oice Paid �a 10 day. 100°io 0.00 °0 1.00°0 hnoice Paid�a 10 days 0.00°io Total Proposed Cost -Less 10 dayexpedited discount $1,326,600.00 0.00 °0 $1,339,965.04 Total Proposed Cost- Less 10 day expedited discount $1,370,000.00 Evaluated Score: 57.88 10 20 10 97.88 57.30 10 20 9 96.30 Type of ProducUService ITEM EST. QTY. UOM Requested Reeder General Construction - Fort Worth, Texas JC Commercial- Lewisville, Texas Price Score Delivery Score Compliance Indicators of Total Price Score Delivery Score Compliance Indicators of Total Prodoctllostalladoo Proposal: Price (60 %) (10 %) w /specs (20 %) Performance Evaluated Price (60% (10 %) w /specs (20%) Performance Evaluated (10 %) Score (10 %) Score Delivery : 8/31/13 Meet? (Choose one) YES NO Yes Yes P I a, detmled m 1 1 EA Sect— II, Snbpaiagiaph ?. $13?0.,000. 00 $1,2-9,--00 Total Proposed Cost: Per Written Pro osal $1,370,000.000 $1,279,777.00 Expedited Payment Discounts hn oice Paid m 30 days 0.00 °io 0.00 °0 hnoice Paid�a 15 days 0.00°io 0.00 °0 hnoice Paid�a 10 days 0.00°io 0.00 °0 Total Proposed Cost- Less 10 day expedited discount $1,370,000.00 $1,279,777.00 Evaluated Score: 56.05 10 20 to 1 96.05 1 60.00 10 20 5 95.00 Approved: Elton A Brock, MBA, CTPM, CTCM, C.P.M. Evaluation Criteria: Evaluation Team Members: Price (Factor 6000 Adjusted Total Proposed Pricing. (include: 10 dos° Expedited Pavin,at DiB —ant) Focilitie;, Project Manager Evaluation Criteria - Delivers° (Factor 10010 Delivery Timefraune, and Connplrance with Specifications, Qualit°, Reliabilitv, Characteristics Waters Wastewater Asst Director, Citv of Denton Evaluation Criteria - Connphance with Specifications (Factor 3000). Ability to Meet ( )verall Deh enables and Specifications Water Wastewater - bhunager, Cih' of Denton Evaluation Criteria - findicator, of Probable Performance (Factor 1000 ). Financial Soundness, References, Ability to Perform, Exerience, Dennonshated Capabilitv and Responsibility, blahnt Agreement: and Support Approved: Elton A Brock, MBA, CTPM, CTCM, C.P.M. Exhibit 4 RFP # 5240 - Best and Final Offer Pricing DATE: 1/02/14 Description: Pecan Creek WRP Administration Building No. Qty. DESCRIPTION INIITAL PRICING BEST AND FINAL OFFER Schmoldt Construction Schmoldt Construction Principle Place of Business: Celina, TX Celina, TX Acknowledged Addendum 1 and 2 Yes Yes 2 Type of Entity Corporation Corporation 3 Total working days for substantial completion 285 262 3a Completion date if deadline Sept. 17, 2014 2- Oct -14 4 Total working days for project start 285 262 5 Base Bid $ 1,340,000.00 $ 1,290,700.00 6 Mobilization & Demobilization $24,850.00 $24,850.00 7 Temporary Facilities and $31,000.00 $31,000.00 8 Testing Laboratory Services $0.00 $0.00 9 Bonds (Labor and Materials & $13,500.00 $13,500.00 10 Concrete Paving $22,000.00 $ 22,000.00 11 Earthwork $38,187.00 $ 38,187.00 12 Site Utilities $30,230.00 $ 30,230.00 13 Concrete Foundations/Piers $146,332.00 $ 140,000.00 14 Building Structural framing $139,690.00 $ 129,000.00 15 Masonry $77,900.00 $ 70,900.00 16 Drvwall $55,480.00 $ 55,480.00 17 Metal Stud Framing $28,520.00 $ 28,520.00 18 Roofing $85,000.00 $ 81,000.00 19 Mechanical $90,000.00 $ 86,000.00 20 Electrical $153,500.00 $ 153,500.00 21 Plumbing $59,000.00 $ 59,000.00 22 Fire Suppression $13,330.00 $ 13,330.00 23 Fire Alarm $12,300.00 $ 12,300.00 24 AV /Security $0.00 $0.00 25 All other Construction Items $319,181.00 $ 301,903.00 Total Base Bid S 1,340,000.00 S 1,290,700.00 Payinenf Term,Discounts' Payment terms for the City of Denton are typically 30 days. Please indicate the additional Invoice Paid in 20 days 1.00% 0.00% Invoice Paid in 15 days 1.00% 0.00% Invoice Paid in 10 days 1.00% 0.00% *Prices shall be bid FOB Destination *In case of calculation error, unit pricing shall prevail 1 2 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 5 DRAFT MINUTES PUBLIC UTILITIES BOARD January 13, 2014 After determining that a quorum 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, January 13, 2014 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901A Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy Robinson, Phil Gallivan Barbara Russell and Lilia Bynum Absent: Leonard Herring Ex Officio Members: Howard Martin, ACM Utilities Absent: George Campbell City Manager OPEN MEETING: CONSENT AGENDA: 3) Consider recommending approval of awarding a public works contract for the Constriction of the Pecan Creek Water Reclamation Plant Administration Building to Schmoldt Constriction, Inc. in the amount of $1,290,700 (RFP 5240). Motion was made to approve item 3 by Board Member Robinson with the second by Board Member Russell. The vote was 6 -0 approved. Adjournment 10:32 a.m. ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE PECAN CREEK WATER RECLAMATION PLANT ADMINISTRATION BUILDING; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5240- AWARDED TO SCHMOLDT CONSTRUCTION, INC. IN AN AMOUNT NOT -TO- EXCEED $1,290,700). WHEREAS, the City has solicited, received and tabulated competitive proposals for the constriction of public works 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 proposal is the highest scored proposal for the constriction of the public works or improvements described in the Request for Proposal (RFP) document and plans and specifications therein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive proposal for the constriction of public works or improvements, as described in the "Request for Proposals" or plans and specifications on file in the Office of the City's Purchasing Agent filed according to the RFP number assigned hereto, are hereby accepted and approved: RFP NUMBER CONTRACTOR AMOUNT 5240 Schmoldt Constriction, Inc. $1,290,700 SECTION 2. The acceptance and approval of the above competitive proposals shall not constitute a contract between the City and the person submitting the proposal for constriction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Proposers including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award. SECTION 3. The City Manager is hereby authorized to execute all necessary written contracts for the performance of the constriction of the public works or improvements in accordance with the proposals accepted and approved herein, provided that such contracts are made in accordance with the Notice to Proposers and Request for 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 RFP 5240 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. Upon acceptance and approval of the above competitive proposals and the execution of contracts for the public works 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 proposals 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 , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: - ORD -RFP 5240 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Curt Arndt at 349 -7342 ACM: Bryan Langley �-A SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a three (3) year Professional Services Agreement for traffic signal design and constriction plans for thirty (30) City of Denton intersections with Binldey & Barfield /C &P, Inc. in an amount not -to- exceed $550,500; providing for the expenditure of funds therefor; and providing an effective date (File 5461- awarded to Binldey & Barfield /C &P, Inc.). FILE INFORMATION The City of Denton Traffic Operations Division is required to build newly warranted traffic signals and also replace aged traffic signals within the City of Denton and Texas Department of Transportation (TxDOT) right of ways. Binldey & Barfield /C &P, Inc. (BBCP) has performed traffic signal design work for the City of Denton for the last twelve (12) years and is very familiar with the City of Denton transportation system. BBCP possesses sufficient and highly knowledgeable professional staff capable of this design work, which follows the Manual on Uniform Traffic Control Devices (MUTCD), as well as TxDOT and City of Denton Design guidelines and specifications. As a result of our long term history with this firm, they are very familiar with the City's continuing development of traffic signal design criteria and provisions. This knowledge is very important for the transportation of goods and services including the motoring public, cyclists, pedestrians, and for the overall goal of public safety. Both MUTCD and Pedestrian Right of Way Accessibility Guidelines (PROWAG) requirements are mandatory at traffic signals (ramps, audible pedestrian buttons, pedestrian heads, and crosswalks) and this firm is very familiar with requirements. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. Binldey & Barfield/ C &P, Inc. has extensive experience and history with traffic signal design work for the City of Denton and is recommended to continue to provide this service for an additional three (3) years. Agenda Information Sheet February 4, 2014 Page 2 RECOMMENDATION Approve a Professional Services Agreement with Binldey & Barfield /C &P, Inc. in a three (3) year amount not -to- exceed $550,500.00. PRINCIPAL PLACE OF BUSINESS Binldey & Barfield /C &P, Inc. Richardson, Texas ESTIMATED SCHEDULE OF PROJECT This is a three (3) year agreement with an ending date of February 4, 2017. FISCAL INFORMATION The traffic signal design will be funded from Capital Improvement Plan project funds for individual intersections as the design work is needed. EXHIBITS Exhibit 1: Ordinance Exhibit 2: Professional Services Agreement Respectfully submitted: C.h"k � (3 , Chuck Springer, 349 -8260 Director of Finance 1 -.CIS -File 5461 Exhibit 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A THREE (3) YEAR PROFESSIONAL SERVICES AGREEMENT FOR TRAFFIC SIGNAL DESIGN AND CONSTRUCTION PLANS FOR THIRTY (30) CITY OF DENTON INTERSECTIONS WITH BINKLEY & BARFIELD/C&P, INC. IN AN AMOUNT NOT - TO- EXCEED $550,500; PROVIDINGFOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5461- AWARDED TO BINKLEY & BARFIELD /C &P, INC.). WHEREAS, the professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to enter into a professional service contract with Binldey & Barfield /C &P, Inc., to provide professional traffic signal design services for the City of Denton, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. 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 File 5461 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2014. MARK A. BURROUGHS, MAYOR Exhibit 1 ATTEST: JENNIFER WALTERS, CITY SECRETARY IM APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY IM File 5461 Exhibit 2 PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the ,— „,,,mm, _— day of .. --------- . , 2014, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner” and Binkley & Barfield -C &P, Inc., with its corporate office at 1801 Gateway Blvd., Suite 101, Richardson, TX 75080 hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas architect or engineer, as an independent contractor. The Design Professional hereby agrees to perform the services as described herein and in the Proposal, the General Conditions, and other attachments to this Agreement that are referenced in Section 3, in connection with the Project. The Project shall include, without limitation, (describe the Project in the space below or in an attachment) Traffic Operations is required to build newly warranted and replace aged traffic signals within the City of Denton and TxDOT right of ways. Binkley & Barfield I C &P, Inc. has been doing traffic signal design work exclusively for the City of Denton for the last 12+ years and therefore, are very familiar with the City of Denton transportation system as it relates to traffic signal design. They possess sufficient and highly knowledgeable professional staff capable of this design work, which follows the M.U.T.C.D., (Manual on Uniform Traffic Control Devices), as well as TxDOT and City of Denton Design guidelines and specifications. As a result of our long term history with this firm, they are very familiar with the City's continued development of our traffic signal design criteria and provisions. This knowledge is very important for the transportation of goods and services, the motoring public, bicycles and pedestrians for the overall goal of public safety. Both M.U.T.C.D. and P.R.O.W.A.G. (Pedestrian Right of Way Accessibility Guidelines) requirements are mandatory at traffic signals (ramps, audible pedestrian buttons, pedestrian heads, crosswalks) of which this firm is very familiar with. En SWaterials Management\PftMContraets Documents \5000 - 5999 \5461 - C &P EngineeringTrofessional Services Agreement Architect & Enginee.doc Exhibit 2 SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1.1 For Basic Services the total compensation shall not exceed $550,500 for a three year period ending February 4, 2017. 2.1.2 Progress payments for Basic Services shall be paid in the following percentages for of the total compensation for the Basic Services satisfactorily completed at the end of the following phases of the Project: Schematic Design Phase NA% Design and Development Phase NA% Construction Documents Phase NA % Bidding Phase NA % Construction Phase NA % 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for Additional Services is as follows: Principals $200 per hour Senior Project Manager $180 per hour Project Manager $160 per hour Project Engineer $140 per hour Engineer in Training $120 per hour Senior Technician/CAD $100 per hour Clerical $65 per hour 2.2.2 Compensation for Additional Services of consultants, including additional structural, mechanical and electrical engineering services shall be based on a multiple of NA times the amounts billed to the Design Professional for such additional services. 2.3 REIMBURSABLE EXPENSES Reimbursable Expenses shall be a multiple of NA times the expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions but not to exceed a total of N/A without the prior written approval of the Owner. Page 2 S: \Materials Management\PRMContracts Documents \5000 -5999 \5461 - C &P Engineering \OLD STUFF \Professional Services Agreement Architect & Engineer 1- 24- 2014.doc Exhibit 2 SECTION 3 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: 1. City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. The Design Professional's Proposal 3. Attachment A This Agreement is signed by the parties hereto effective as of the date first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY azm APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY WITNESS: I:' CITY OF DENTON GEORGE C. CAMPBELL CITY MANAGER DESIGN FIRM BY: Firm's lcer/Representative (Signature) AlliONlo zoeK. 2 F.S. V1 to Pax-S.,1XA-rr SWaterials Management\PRCMContracts Documents \5000 - 5999\5461 - C &P Engineering\Professional Services Agreement Architect & Enginee.doc Exhibit 2 CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES 1.1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreement") and proposal (the "Proposal") to which these General Conditions are attached) performed by the Architect or Engineer (hereinafter called the "Design Professional") or Design Professional's employees and consultants as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services"). 1.2 The Design professional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level of care and skill ordinarily exercised by members of the same profession currently practicing in the same locality under similar conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Care"). The Services shall be perfon-ned as expeditiously as is consistent with the Degree of Care necessary for the orderly progress of the Project Upon request of the Owner, the Design Professional shall submit for the Owner's approval a schedule for the perfon-nance of the Services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for the Owners review and for approval of submissions by authorities having jurisdiction over the Project Time limits established by this schedule and approved by the Owner shall not, except for reasonable Cause, be exceeded by the Design Professional or Owner, and any adjustments to this schedule shall be mutually acceptable to both parties. 2.2.1 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owner's needs and to establish the requirements for the Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and construction budget requirements, each in terms of the other, subject to the limitations set forth in Subsection 5.2.1, Based ♦ the approved Design Development Documents and a ny further adjustments in the scope or quality of the Project or in the construction b forth in detail requirements for the construction ofthe Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations 2.4.2 The Design Professional shall assist the Ovmer in the preparation of the necessary bidding or procurement information, bidding or procurement forms, the Conditions ofthe contract, and the form ofAgreernent between the Owner and contractor, C.4.3 ]be -Fesign Professional shall advise the *wner ot any adjustments to previous preliminary estirna-Fes—OT ConstructioTEF-Cost in icae y changes in requirements or general market conditions. 2.5 CONSTRUCTION CONTRACT PROCUREMENT Page 4 S:\Materials Managcn-ient\PRCH\Contracts D0GL1rnents\5000-5999\Wl - C&P Engineering\Professional Services Agreement Architect & Engince doc Exhibit 2 2.5.1 The Design Professional, following the Ovoier's approval ofthe Construction Documents and ofthe latest preliminary detailed estimate of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including without limitation, the competitive scaled bidding process. Although the Owner will consider the advice ofthe Design Professional, the award ofthe construction contract is in the sole discretion ofthe Owner. "READWUM] TGT--1 he Nesign Professional's responsibility to provide Xasic Services for the Construction 11hase under this Agreement commences wl h the award of the Contract for Construction and temninates at the issuance to tile Owner ofthe final Certificate for Payment, unless extended under the terms ol'Subsection 8 12 2.6.2 'Me Des i actirmr-as 10. IF V OWNWINIIININ -WIII I N, lii"*221,ll"wmmwlilipililI I 113001W 11INNIIINIIIIIIIIIIIIIN, ,.I provided in the Agreement. agreement of the Owner and Design Professional 2.6A The rn)eqii I - , . I I -d- construction, and (2) at the Ovoier's direction fhorg time to ti dil"in-.edin, orl ri.d described in the Contract for Construction. The Des i,-mlilrolessional shall have authority to act on behalfofthe subcOn rac rs. The Design Professional represents t at he will follow Degree f Care in perfon-ning all Services under the Agreement The Design Professional shall promptly correct any defective designs or specifications furnished by the Design Professional at no cost to the Owner. 'Hie Owner's approval, acceptance, use ofor Icaymcnt for all or any part of the Design Professional's Services hereunder or of tile Project itself shall in no way alter the Design Professional's obligations or the Owner's rights hereunder sions. The Design Professional shall not have control over or charge ofacts or emissions ofthe Contractor, Subcontractors, or their agents or employees, or ofany *ther persons performing portions of the work 2.6.7 The Design Professional shall at all times have access to the work wherever it is in preparation or progress Exhibit 2 Page 6 SWaterials ManagemeiMPRCMContracts Documents\5000-5999\5461 - C&II EngineeringTrofessional Services Agreement Architect & Enginee.doc Exhibit 2 ,# M AIROTA,3035,11 Page 7 S:\Materials ManagernentUIRMContracts Docurnents\5000-5999\5461 - C&P Enginecring\Professional Services Agreement Architect & Engince,doc Exhibit 2 ARTICLE 6 OWNERSHIP AND USE OF DOCUMENTS 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are instruments of the Design Professional's service and shall become the property of the Owner upon tennination or completion of the Agreement. The Design Professional is entitled to retain copies of all such documents. Such Page 8 SAMaterials Managem ent\PRCH\Con tracts Docurnents\5000-5999\5461 - C&P Engineering\Professional Services Agreement Architect & Enginee doc Exhibit documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. mthe event the Owner uses any of the information or materials developed pursuant to the Agreement in another projector for other purposes than are specific m the Agreement, the Design Professional i^ released from any and all xamnty relating m their use mthatpojec/ o.2 Submission or distribution oruocumenww meet official regulatory requirements or for similar purposes m connection with the Project iynmm»o construed u,publication in derogation ormc Design Professional's reserved rights ARTICLE r TERMINATION, SUSPENSION OR ABANDONMENT 7.1 '11-ie Design Professional may terminate the Agreement upon not less than thirty days written notice should the Owner fail substantially to perform in accordance with the terms ofthe Agreement through / i thereofwith or vwmnm cause upon thirty ) d prior written notice to the Design Professional. All work and labor being perforined under the Agreement shall cease immediately upon Design Professional's receipt ofsuch notice Before the end ofthe thirty (30) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed prior to the receipt ofsuch notice, No amount shall be due for lost or anticipated profits. All plans, field surveys, and other data related to the Project shall become property ofthe Owner upon termination ofthe Agreementand shall be promptly delivered tothe Owner in a reasonablyorganized finn-ri Should Owner subsequently contract with anew Design Professional for continuation ofservices on the Project, Design Professional shall cooperate in providing information, 7.2 o the Project is suspended or the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to notiouvYuuuxou,pcvainn When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred m the interruption and resumption v«mo Design Professional's services. 7.3 The Agreement may be ten-ninated by the Owner upon not less than seven days written notice to the Design Professional /n the event that the Project /upermanently uounuom,d. /ftho Project i, abandoned uy the Owner for more than s consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written not/co 7.4 Failure vrm^ Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non- perfonriance and cause flor term ination. 7.5 Ifthe Owner fails to make payment to Design Professional within thirty (30) days ofreceipt ofa statement for services properly and satisfactorily performed, the Design Professional may, upon seven days written notice to the Owner, suspend performance ufounioea under the Agreement. 7.6 In the event of termination not the fault ofthe Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior m Exhibit 2 8.4.1 Payments on account of the Design Professional's Additional Services and for Reimbursable Expenses shall be made monthly within 30 days after the presentation to the Owner of the Design Professional's statement of services rendered or expenses incurred, 8.5 PAYMENTS winnIELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the work other than those for which die Design Professional is responsible. 8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Processional shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and copying during regular business hours for three years after the date of the final Certificate of Payment, or until any litigation related to the Project is final, whichever date is later. WOMAN "M ,,hareholders, agents, or employees in the performance ofthe Agreement, 9.2 Nothing herein shall be construed to create a liability to any person who is not a party to the Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. 10.4 Professional Liability Insurance with limits ofnot less than $1,000,000 annual aggregate. Exhibit 2 11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees, associates, agents, subcontractors, and SUbconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants. 11.7 All notices, com in unicati on a, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless otherwise specified herem. All notices shall be deemed effective upon receipt by the party to whom Such notice is given, or within three (3) days after mailing. 11.8 If any provision of the Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of the Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform the Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision 11.11 The captions of the Agreement are for iriffin-national purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement Page I I SWaterials ManagemenOPRMContracts Docurnents\5000-5999\5461 - C&P Engmeering\Professional Services Agreement Architect & Enginee doe Exhibit 2 CONFLICT_ OF INTEREST QUESTIONNAIRE FORM CIO For vendor or other person doing business with local governmental entity _ This questionnaire reflects chan g es made to the law by H.B. 1491, 80th Leg., Regular Session. .�...,.. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Received person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7`h business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? ElYes No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes [-] No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? E] Yes 1-1I No D. Describe each affiliation or business relationship. Signature of person doing business with the governmental entity Date Page 12 SWaterials Management \PRCH \Contracts Documents \5000 - 5999\546] - C&P Engineering \Professional Services Agreement Architect & Enginee,doe Exhibit 2 Binkley, ,'V Barfield I C&P consulting engineers January 14, 2013 Curt Arndt Traffic Operations Manager 801 Texas Street Denton, Texas 76209 Re- Traffic Signal Design Proposal For Thirty (30) intersections Curt: At the City's request, Binkley & Barfield / C & P, Inc. (BBCPI) has submitted this proposal to provide professional engineering services for the completion of final traffic signal design and construction plans for thirty (30) intersections. Scope of Services The Consultant will develop design plans that can be used by the City to let a contract for the following construction elements; new traffic signal controls; pavement markings, sidewalk extensions and modifications; and ADA ramps. The extent of each intersection's needs for these and other construction elements will vary from intersection to intersection. However, each element will be designed for construction to the level required by the city. The traffic signal plans will be developed to follow current City of Denton Standards and TxDOT standards at those intersections involving a state designated route. Our approach will be to develop the plans consistent with the plans previously prepared for other intersections. Our proposal includes the following engineering services for EACH traffic signal location. A. BASE MAP PREPARATION I . Collect available information from the City: utility information; right -of -way information; and as -build plans. 2. Conduct topographic filed survey to include both horizontal and vertical control. 3. Create base map of existing conditions utilizing AutoCAD. 4. Conduct right -of -way research using Lone Star Record & Abstract Services. B. PRELIMINARY PLANS 1. Design criteria; City of Denton design criteria and the Texas Manual on Uniform Traffic Control Devices. 2. Aspects of plans; a. Metal mast arm poles b. Vehicular signal controls c. Pedestrian signal controls. d. Video detection. e. Emergency vehicle pre- emption f. Mesh radio and antenna. g. Forward fore radar. h. Closed circuit TV. Binkley & Barfield -C &P, Inc.. TBPE F -3815 a 1801 Gateway Boulevard, Suite 101- Richardson, Texas 75080 • Tel: 972.644.2800 1 Fax: 972.644.2817 . www,bbcpi.com Exhibit 2 Binkley Balrfie0d I CAP ..._. .. _— consulting engineers i. Sidewalk extensions and modifications. j. ADA ramps. k. Street Light luminaires. 1. Street name signs. in. Intersection pavement marking layout. n. Location of utilities. C. REVIEW AND FILD CHECK OF PRELIINARY PLANS. a. Submit to City for review. b. Field check areas of concern as needed. D. FINAL PLANS AND DELIVERABLES. a. Revise to reflect review comments. b. Submit to City of approval. c. Provide plan sets, originals, and as -built plans as required for City purposes. SCHEDULE AND FEE PROPOSAL The consultant is prepared to begin Work on this project upon your authorization to proceed. We would provide design plans within a time frame and schedule that is suitable to the City's needs and requirements. We are prepared to complete the project as described in the Scope of Services section for a maximum fee not to exceed Five hundred and fifty thousand five hundred dollars ($ 550,500) A breakdown of the typical signal design fees for upgrading existing traffic signal is summarized below. Field Survey = $ 1,500 ROW Research and Determination = $ 3,500 Signal, Marking, Sidewalk, and ADA Ramp Plans = $ 13,000 Prints, Plots, and Deliveries = $ 350 Maximum Total Fee. = $ 18,350 The total fee for all thirty intersections is $550,500 CLOSING We appreciate this opportunity to respond to your need for traffic engineering assistance regarding this project in Denton. If you have any questions concerning this proposal, please do not hesitate to contact our office. Sincerely, Binkley & Barfield — C &P, Inc. Larry W. Cervenka, P.E. Project Manager Attachment: BBCPI Hourly Rates Binkley & Barfield-CB P, Inc. • TBPE F•3815 • 1801 Gateway Boulevard, Suite 101- Richardson, Texas 75080 • Tel: 972.644.28001 Fax: 972.644.2817 • v w v.bbcpi.com Exhibit 2 consulting engineers ATTACHMENT "A" HOURLY RATES FOR REIMBURSABLE CONSULTING ENGINEER SERVICES AND ENGINEERING DESIGN SERVICES The following hourly rates will apply to services as outlined in the Standard Professional Services Agreement between Owner and Engineer. These rates will remain in effect through December 31, 2014. Principal $200.00 Senior Project Manager $180.00 Project Manager $160.00 Project Engineer $140.00 Engineer in Training $120.00 Senior Technician/CAD $100.00 Clerical $65.00 Binkley & Barfield-C &P, Inc. • TBPE F -3815 - 1801 Gateway Boulevard, Suite 101 - Richardson, Texas 75080 • Tel: 972.644.28001 Fax: 972.644.2817 • www.bbopi.com AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Jim Coulter at 349 -7194 ACM: Bryan Langley �_A SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of a Laboratory Information Management System (LIMS) and a three (3) year software maintenance agreement for continued vendor support of the software, 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 5441 awarded to LabWare, Inc. in the three (3) year not -to- exceed amount of $72,840). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION The purchase of a Laboratory Information Management System (LIMS) is an approved Capital Improvements Plan (CIP) project that was discussed with the Public Utilities Board and City Council during the 2013 -2014 Fiscal Year budget process and subsequently approved. The project replaces the current information management system used by the Municipal Laboratory with a much more comprehensive system. The new system is designed to track all data associated with samples from receipt, analyses, reporting, disposal, and quality assurance. The system also automates chemical and reagent inventories, greatly enhances instrument interface capabilities, and offers the ability to create customizable reports for operational use. The system will also be crucial for meeting current and upcoming digital reporting requirements as regulatory agencies transition from paper -based to digital reporting. The LIMS is needed to improve efficiency, reduce errors, enhance workflow, and improve information exchange for internal and external laboratory customers. The system will also help meet National Environmental Laboratory Accreditation Program ( NELAP) requirements. Laboratory staff interviewed personnel from several regional laboratories with existing LIMS, and used the information to evaluate several LIMS platforms. Evaluations included on -site presentations and product demonstrations from vendors. The system offered by LabWare, Inc. is the only system that allows end users to modify and customize the system. Since one of the main goals of the Laboratory is to utilize the system to meet current and future NELAP and digital compliance reporting requirements, the ability to modify and customize the system is crucial. The ability to modify the system is also needed for producing customizable reports and similar information for end users. Agenda Information Sheet February 4, 2014 Page 2 FILE INFORMATION The LabWare LIMS software permits Application Programming Interface (API) customization capabilities and is the only provider of API. Chapter 252.022 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. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On January 27, 2014, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Award the purchase of a Laboratory Information Management System (LIMS) and a three (3) year software maintenance agreement for continued vendor support of the software to LabWare, Inc. in the three (3) year not -to- exceed amount of $72,840. PRINCIPAL PLACE OF BUSINESS LabWare, Inc. Wilmington, DE ESTIMATED SCHEDULE OF PROJECT This contract will be in effect through January 31, 2017. FISCAL INFORMATION These services will be funded from the Laboratories Wastewater Collections operating account 640248541.1355.40100. Requisition 116390 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: LabWare, Inc. Quote Exhibit 2: Sole Source Memo Exhibit 3: Public Utilities Board Draft Minutes Agenda Information Sheet February 4, 2014 Page 3 Respectfully submitted: C.�� Chuck Springer, 349 -8260 Director of Finance 1 -.CIS -File 5441 Exhibit 1 LabWare, Inc. Three Mill Rd, Suite 102 Wilmington, DE 19806 Phone: (302) 6,58-8444 Fax: (302) 658 -7894 City of Denton Environmental Services and Sustainability 1100 S. Mayhill Rd. Denton, TX 76208 Attn: Fritz U. Schwalm SOFTWARE LICENSES QUOTATION QUOTATION NUMBER: DT01091402 SUPPORT Page 1 of 4 1004.22 1 Annual Softyare Maintenance Plan — I ear 9 Includes soft«are maintenance patches and product enhancements for 1 year from Aniversery Date for LabWare- licensed soft are. Please see Optional Year 2 -3 Quote $0 $0 1003.10 1 LabII are Tech<?ieal Sl�pot7 $4,000 $4,000 Includes: Telephone support Online Web -based support including access to: - LabWare DevTrack to download Modules - LabWare LabTrack for updates and defect fixes - LabWare hnowledgeTrack for technical articles Conference registration fee to LabWare's Customer Education Conference Support is provided 8 -hours per day, -) days per week excluding holidays, during normal East Coast business hours. Price quoted is per named support contact, per year. Each narned support contact must attend LabWare's LIMS Administration Training Course prior to gaining support access. Includes one (1) registration fee to LabWare's Annual Customer Education Conference for the customer's named support representative. TOTAL SUPPORT 1 $4,000 Page 2 of 4 TRAINING SERVICES IMPLEMENTATION SERVICES 00=61ff n1l §° e I . 1107.00 LablFare Implementation ConsultantSeniees $1,600 $8,000 For assistance with system setup including: Requirements and workflow analysis Software installation System prototyping and configuration Report creation LI- IS and ELN Template configuration Price per implementation consultant, per day. Travel and luring expenses are not included in this price and will be invoiced separately at fixed per diem rates quoted below. 1199.10 1 T arel E.1peizw,s— DomestieAirfalz $650 $650 Fixed price per round trip 1199.20 Tsar el E.lpeizw,s — Lo(1,zr7 , heal,. Local Tr^ar el $250 $1,250 Fixed price per day on site. Includes all travel expenses except airfare. TOTAL IMPLEMENTATION $9,900 TOTAL Page 3 of 4 Terms and Conditions Volume- adjusted software license prices, as well as any volume or other discounts, apply solely to this quote. Other quotations for LabWare LIMS software shall be prepared separately, and shall be independent from this quotation. Subsequent orders for additional LabWare LIMS software shall be based upon such separate and independent quotations. The daily rate quoted for Implementation Services is fixed. However, any quoted number of days is an estimate only. Our estimates are based on information supplied to LabWare by the customer and on the assumption that the customer will actively participate in the implementation. The customer will be responsible for managing the project, including scope, schedule, and budget. The customer is expected to participate in all implementation activities, such as testing and entry of static data. LabWare will invoice the customer for the actual amount of time required to complete the work, which may be higher or lower than the estimate. We recommend that the customer adjust the scope and their level of participation as needed throughout the project in order to achieve the desired completion date at the budgeted cost. The currency for all quoted prices is United States Dollar (USD). All quoted prices from and payments to LabWare are exclusive of any government duties, taxes and /or charges. Sales tax has not been included in this quotation. Unless a Certificate of Exemption from sales tax or a sales tax self paid number is provided to LabWare, sales tax at the applicable rate will be added to all invoices. This Quotation is valid for a period of 30 Days from the date below. Make all purchase orders to: LabWare, Inc., addressed as above. Payment Terms: • 100°% of Total Licenses invoiced upon shipment of software. • Implementation services invoiced monthly for actual days provided. • Training invoiced upon registering for a class. • All payments due Net 60 Days from receipt of an accurate invoice. If you have any questions concerning this quotation please call the undersigned at (302) 658 -8444. lanuary 9, 2014 Donald Tucker Date Page 4 of 4 LabWare, Inc. Three Mill Rd, Suite 102 Wilmington, DE 19806 Phone: (302) 6,58-8444 Fax: (302) 658 -7894 City of Denton Environmental Services and Sustainability 1100 S. Mayhill Rd. Denton, TX 76208 Attn: Fritz U. Schwalm SUPPORT QUOT.ITION QUOTATION NUMBER: DT01091402 Page 1 of 2 Terms and Conditions The currency for all quoted prices is United States Dollar (USD). All quoted prices from and payments to LabWare are exclusive of any government duties, taxes and /or charges. Sales tax has not been included in this quotation. Unless a Certificate of Exemption from sales tax or a sales tax self paid number is provided to LabWare, sales tax at the applicable rate will he added to all invoices. This Quotation is valid for a period of 30 Days from the date below. Make all purchase orders to: LabWare, Inc., addressed as above. Payment Terms: All payments due Net 60 Days from receipt of an accurate invoice. If you have any questions concerning this quotation please call the undersigned at (302) 658 -8444. Donald Tucker lanuary 9, 2014 Date Page 2 of 2 Exhibit 2 CITY )r DENTON Municipal Laboratory 1100 S. Mayhill Rd. Denton, TX 76208 (940) 3498615 Fax (940) 349 -8613 December 11, 2013 TO: Elton Brock, Purchasing Manager FROM: Fritz Schwalm, Municipal Laboratory Manager SUBJECT: CIP Expenditure: Laboratory Information Management System (LIMS), 640500- Wastewater Laboratory Dear Mr. Brock, This memo is being provided as additional documentation for our Laboratory Information Management System (LIMS) purchase requisition. In preparation for this purchase, lab staff performed research and interviewed other labs to establish important data base evaluation parameters. Upon evaluation it was apparent that the Labware LIMS is the best choice for purchase by the City of Denton for the Municipal Lab. In its search for the optimal LIMS, staff determined that, because the Labware LIMS software permits Application Programming Interface (API) customization capabilities, it is the best software solution for the City. In accordance with the Materials Management and Payment Procedures Manual, this purchase meets criteria of the Local Government Code Chapter 252.022, SECTION 4, Item 4.: a "procurement for personal, professional, or planning services" as LabWare LIMS is the only provider of Application Programming Interface (API). API allows users the ability to modify development application programming (script access to core programming code) and accordingly laboratory staff will have program access to customize and build modules needed to meet NELAC compliance, facilitate electronic reporting as mandated by the EPA (Federal Register, Vol. 78, No. 146), and meet our organizational reporting, compliance, and data management needs. Also, because of the labs previous experience with LIMS software support (the software developer of the previous system was bought by another company and subsequently was not supported), another crucial feature includes the stability of the LIMS provider company. LabWare is a financially stable global company which has been in existence for more than 20 years. For these reasons Labware LIMS is the optimal LIMS for the City Municipal Lab. The approved CIP budget information, LIMS Criteria Evaluation Sheet, and testimonial documentation from the manager of the Trinity River Authority lab are attached. Please feel free to contact me for any additional information you may need. Best regards, i Fritz U. Schwalm Manager, Municipal Laboratory, City of Denton Environmental Services and Sustainability 1100 S. Mayhill Rd. Denton, TX 76208 (940) 349 -8615 "Dedicated to Quality Service" www.cityofdenton.com Exhibit 3 1 DRAFT MINUTES 2 PUBLIC UTILITIES BOARD 3 January 27, 2014 4 5 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is 6 present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on 7 Monday, January 27, 2014 at 9:00 a.m. in the Service Center Training Room, City of Denton 8 Service Center, 901A Texas Street, Denton, Texas. 9 10 Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy 11 Robinson, Phil Gallivan Barbara Russell and Leonard Herring 12 13 Absent: Lilia Bynum 14 15 Ex Officio Members: Howard Martin, ACM Utilities 16 17 Absent: George Campbell City Manager 18 19 OPEN MEETING: 20 21 CONSENT AGENDA: 22 23 9) Consider recommending approval for the expenditure of funds to purchase a Laboratory 24 Information Management System (database software referred to as "LIMS ") and associated 25 maintenance and support agreements from Labware, Incorporated, a single source provider, 26 to meet operational and regulatory requirements of the Denton Municipal Laboratory, in an 27 amount not to exceed $72,840. 28 29 Board Member Herring asked if this item had bids. Kenneth Banks, Environmental Services 30 and Sustainability Director, answered no this is a single source item. The reason for the single 31 source item was derived from an evaluation of the programs themselves. This program will 32 allow staff to manage the data for the laboratory. The management of the data not only deals 33 with instrument to the data base it also deals with compliance reporting and reporting for internal 34 and external customers in a format that is specified. This particular program allows what is 35 known as an application programming interface to go in and actually modify the script of the 36 programs. Where the compliance reporting it is critical for staff to get into that program and 37 modify it so they can produce output that will be acceptable to the compliance agencies. The 38 laboratory personnel and lab manager Fritz Schwalm was at the PUB Meeting for any questions. 39 An extensive evaluation procedure was gone through to see what programs were out there. 40 There were interviews with metroplex laboratories and invited a group of the distributors in to 41 give in house demonstrations. The cost was evaluated associated with the programs and at the 42 end of the process staff found that this system was the only one that would allow staff to go in 43 and handle the programming component themselves. This is the reason that staff decided on the 44 single source route and this particular software. 45 46 Motion was made to approve item 9 by Board Member Gallivan with the second by Board 47 Member Herring. The vote was 6 -0 approved. 48 49 Adjournment 10:43 a.m. LabWare LIMS Master Services Agreement This Master Services Agreement (hereinafter referred to as "Agreement ") entered into between LabWare Global Services, Inc., having its offices at 3 Mill Road, Suite 102, Wilmington, DE 19806, (hereinafter referred to as "LabWare "), and City of Denton having its offices at 1100 S. Mayhill Rd., TX 76208 (hereinafter referred to as "Licensee "). Both LabWare and Licensee agree that the terms and conditions contained in this Agreement shall govern the purchase and performance of all services offered to Licensee by LabWare. 1.0 DEFINITIONS a. Services — Shall mean all support services offered by LabWare to Licensee on a time and materials basis, which shall include but not limited to training and implementation of projects. Services shall not include any on -going development and support of LabWare Software licensed under a Master Software License Agreement, or maintenance provided under a Master Maintenance Agreement, which maintenance includes but is not limited to new releases, upgrades, interim fixes, enhancements and improvements to the operation and functionality of the LabWare Software. b. Employee - Shall mean any employee of LabWare. Deliverables — Shall mean any tangible work product developed by LabWare, either solely or jointly with others, in connection with work performed under this Agreement for and /or on behalf of Licensee, whether as individual items or a combination of components. By way of example only, a Deliverable may consist of a plan, report, design, methodology, process, specification or a software configuration. Deliverable will not mean, by way of example only, the LabWare software licensed under a license agreement with LabWare or any enhancements, fixes, both interim and permanent, upgrades, new releases, and improvements to the operation and functionality of the licensed software. 2.0 SCOPE OF AGREEMENT During the Term of this Agreement, Licensee shall be granted the privilege to purchase Services at the prices and in accordance with the terms and conditions that are listed in Addendums, which are hereby incorporated into this Agreement. Each time Services are requested by Licensee, the scope and charges for such Services shall be set forth in an Addendum. 2.1 Agreement Documents Whole Agreement This Agreement and all Schedules or Addendums referred to herein or attached hereto, all of which are incorporated by reference, together constitute the entire agreement between the parties with respect to the subject matter hereof and supercedes all prior and /or contemporaneous discussions, documents, agreements and prior course of dealing and will not be effective until signed by both parties. Validity of Parts If any word, phrase, clause, article, or other provision contained in this Agreement is adjudicated or otherwise found to be against public policy, void or unenforceable, then said word, phrase, clause, article or provision shall be LabWare Master Services Agreement Page 1 of 7 LabWare LIMS Master Services Agreement modified or amended to; (1) make the Agreement valid and enforceable; and (2) continue to reflect the original intent of the parties to this Agreement. Captions and Headings The captions of each Article of this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation of construction of this Agreement. d. Effect of Waiver A waiver by either party hereto of any right hereunder, or of any failure to perform, or of any breach by any party will not be a waiver of any other right hereunder or of any subsequent breach or failure by the other party, whether of similar nature or otherwise. 2.2 Right to Transfer Neither this Agreement nor any portion of this Agreement, nor any rights, licenses or obligations hereunder, may be assigned, encumbered or in anyway transferred by Licensee without the prior written approval of Licensor, which approval may be withheld for any reasonable reason whatsoever. 2.3 Changes and Modifications Any and all modification to the terms and conditions of this Agreement shall be made by mutual agreement between the two parties and must be evidenced by issuance of a written addendum signed by an authorized representative of both LabWare and Licensee. 2.4 Applicable Laws a. Notices and Compliance with Laws LabWare and Licensee agree that they shall give all notices and comply with all laws, ordinances, rules, regulations, codes, and orders of any public authority having jurisdiction over their respective activities, as it applies to the scope of work covered by this Agreement, and shall comply with all terms and conditions of any insurance policies covering any part of the work. Jurisdiction This Agreement shall be construed in accordance with the laws of the State of fie, Texas without giving effect to the principles of conflict of laws of such state. Licensee and LabWare hereby agree on behalf of themselves that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate federal or state court in the State of Delaware, Texas ! @rated in New Castle cotes 3.0 TERM OF AGREEMENT It is the intention of the City of Denton period. The City the Awarded year periods. The Contract shall commence upon the issuance of a Notice of Award by the City Denton and shall automatically renew each year, from the l �. either party notifies the otherprior to the scheduled renewal date in accordance with the provisi LabWare Master Services Agreement Page 2 of 7 LabWare LIMS Master Services Agreement of the section titled "termination". At the option of the City of Denton, the Contract may be fiarther extended as needed, not to exceed a total of six (6) months. 4.0 TERMS OF PAYMENT Licensee shall pay LabWare the net value of each submitted invoice, within 30 calendar days from the date the invoice is actually received by Licensee. Time is of the essence with respect to all payments by Licensee. Past due payments of more than thirty (30) days shall bear interest at the rate of one and one -half (1 '' /z %) percent per month or the maximum interest rate permitted by law from the due date. The fees payable under this Section 4 are exclusive of and Licensee shall pay and hold LabWare harmless from all taxes, levies, imposts, duties, VAT charges, or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or an instrument or agreement required hereunder, and all interest, penalties, or similar liabilities with respect thereto, except such taxes as are imposed on or measured by LabWare's net income or property. All sums stated in this Agreement as being payable by Licensee to LabWare are exclusive of VAT or similar other taxes, use and sales taxes, which amounts shall be borne exclusively by Licensee. Licensee shall provide evidence that all applicable taxes have been paid to the appropriate taxing authority by delivering to LabWare receipts thereof within thirty (30) days after the due date for such tax payments. 5.0 TERMINATION OF AGREEMENT Without prejudice to any other rights, either party may terminate this Agreement upon written notice at any time, i£ (i) The other party fails to perform any of its obligations under this Agreement; or (ii) The other party transfers, by operation of law or otherwise, or attempts to transfer, without written consent, any interest in, or right, privilege or obligation under this Agreement; or (iii) The other party becomes insolvent or is unable to pay its debts as they mature, or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against it, or if a court appoints a temporary or permanent receiver, trustee, or custodian for the assets of that party, or if the other party makes an assignment for the benefit of creditors, or if it fails for any reason to function in the ordinary course of business; or (iv) The other party defaults under the terms of any other agreement it had entered into with the other party. The party alleged to be in default will have a period of thirty (30) days after receipt of written notice to cure the breach (provided the breach is capable of cure). If that party fails to do so, the other party may immediately terminate this Agreement. Also, if during any twelve (12) month period, one party gives the other more than two (2) termination notices pursuant to this Section, then, regardless of whether the defaulting party cures the underlying breaches or defaults, the non - defaulting party may immediately terminate this Agreement. LabWare Master Services Agreement Page 3 of 7 LabWare LIMS Master Services Agreement The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose, and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligations on behalf of the other party for any purpose whatsoever. 6.1 LabWare Employees LabWare shall be responsible for supervising, directing, hiring, firing and training its employees and shall only assign individuals to Licensee's account that meet industry standards and qualifications. LabWare further affirms that it shall maintain complete control over, and responsibility for, its own employees and operations and those of its subcontractors. 6.2 Subcontractors and LabWare Implementation Partners No provision of this Agreement, or any subcontract awarded by LabWare, shall be construed to create a contractual relationship between the subcontractor and Licensee or to create an obligation to pay or be responsible for the payment of any monies that may be due to any subcontractor from LabWare. 6.3 Unforeseen Delays LabWare shall not be liable for delays in the performance of its obligations hereunder due to causes beyond its control including, but not limited to, acts of God, acts of Government authorities, strikes or inability to obtain labor or materials on time. 6.4 Employment Practices During the Term of this Agreement, both LabWare and Licensee agree not to purchase the services of each other's current employees, either directly as a consultant or indirectly as an independent contractor working through another business entity representing that employee. 7.0 WARRANTY 7.1 Any Services that are required to be performed by LabWare under the provisions of this Agreement shall be warranted to be in compliance with all of the requirements and specifications of this Agreement and may be verified by the performance of additional qualification and testing as may be required by Licensee. 7.2 The rights and remedies provided to Licensee herein are not exclusive but shall be cumulative and in addition to other rights and remedies existing under this Agreement, at law or otherwise. LABWARE MAKES NO OTHER WARRANTIES, WHETHER WRITTEN ORAL, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR PURPOSE OR MERCHANTABILITY. 1-111 =90M101In0011000 614 The information to be exchanged or discussed in implementing this Agreement is considered by LabWare or Licensee, as the case may be, to be confidential, proprietary, or trade secret in nature LabWare Master Services Agreement Page 4 of 7 Master Services Agreement whether such information is marked as such or not and regardless of the form of media ( "Proprietary Information "). With respect to all such Proprietary Information, LabWare and Licensee each agree to: (i) Use commercially reasonable efforts to maintain the same in confidence, (ii) Not disclose the same to any third party, (iii) Use the same only for the purposes of implementing the undertakings of the respective parties under this Agreement, and (iv) Limit access to the Proprietary Information to the employees of LabWare or Licensee, as the case may be, who have a need to know, who have agreed to honor the terms hereunder, and who will safeguard such disclosed Proprietary Information against disclosure with at least the same degree of care as with their Company's own Proprietary Information. This duty of confidentiality shall expire five (5) years after the date of the last disclosure of such Proprietary Information hereunder, or five (5) years after Licensee last uses the LabWare Software. The foregoing obligations shall not apply, however, to any such Proprietary Information which: (i) Can be demonstrated to have been in the possession of LabWare prior to its disclosure by Licensee or Licensee prior to its disclosure by LabWare. (ii) Is now or hereafter becomes generally available to the public other than by violation of this Agreement, (iii) Is disclosed to LabWare by a third party having no obligation to Licensee or disclosed to Licensee by a third party having no obligation to LabWare, or (iv) Is developed by LabWare or Licensee, as the case may be, without reference in any manner to the disclosed Proprietary Information. (v) Is disclosed pursuant to a requirement of a governmental agency or of law without similar restrictions or other protection against public disclosure, or as to which disclosure is required by operation of law; provided, however, that LabWare or Licensee, as the case may be, will first have given written notice of such required disclosure to the other party, and taken reasonable steps to allow the other party to seek to protect the confidentiality of the information required to be disclosed. Simply because a particular aspect of the Proprietary Information is included, but not specifically disclosed in the more general information otherwise available to the public or Licensee or LabWare, as the case may be, does not operate to relieve LabWare or Licensee of their respective confidentiality obligations herein. LabWare Master Services Agreement Page 5 of 7 LabWare LIMS Master Services Agreement Notwithstanding expiration or termination of this Agreement, the duties of confidentiality undertaken as to Proprietary Information disclosed prior to such expiration or termination shall survive thereafter provided above. 9.0 PROPERTY RIGHTS LabWare acknowledges and agrees that Licensee shall have exclusive, unlimited ownership rights to all Deliverables. All of the Deliverables created hereunder shall be deemed to be works made for hire and made in the course of services rendered and shall belong exclusively to Licensee, with Licensee having the sole right to obtain, hold and renew, in its own name and for its own benefit, patents, copyrights, registrations and other protection which may be appropriate to the subject matter. Nothing contained herein shall be construed to give Licensee any rights in LabWare's software or any new releases, upgrades, interim or permanent fixes, enhancements and improvements to the operation and functionality of the LabWare software. Further, in the course of performing the services provided for herein, LabWare may use enhancements, processes, methods, designs and know -how whether or not copyrightable or patentable that we conceived during the course of other engagements. In addition, LabWare may independently develop enhancements, methods, designs or know -how during the term of this agreement and Licensee acknowledges that LabWare may use such enhancements, processes, methods, designs and know- how in its business operations with other customers provided that such usage does not utilize any of Licensee's confidential information. — --------- ___le�t �a�r +aeu�i����vit 41�e�t °l��r'>��a.i�� erol tl��� �grta�et ��aclt party l�r��t�� �h it�alr�tr�ii� ����ci l�cslel has nfloss they inelud- -4li wt e 44i rs; alals y „ an�1 sarvt�� fi� lrc rn a tl ag; t�� t try tt d abl- liabilities~ lttinism kwse -s darlxegesy ... Or e xpetlses, itrel a�&it tst l l ... tnsul C vh tl e�° ariwis p + e+ra..... all y con�p]t�t- iota -��t" q;I� �» a° I+ �l���t�attnclt� ,...htlt- ntK�y- i�- in�,cl -+." suusit��it�ebd -- ley:.. t1�- catl�a °- 1�at= ly :.��r-- at��y���l" i;s t l $« w ...4 y rt�a�s � o!" atay pact c t � ac at„ sn�at n lc vt., nr gli e ac or-4e fou4t n the- part -ofAie indt�nit�"4ng .ice ty; -e=rr- away- a�p8�wy�aeag�r�t•r sure ��t��rcte= ���- a4 "i�t <9��t�o l`�t���-- 1�� =tyw. 11.0 WAIVER OF CONSEQUENTIAL DAMAGES NEITHER PARTY HERETO SHALL HAVE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. � I u l7►[i) X111 /� .x'111 Y �•/ Licensee agrees that LabWare's liability hereunder for damages is limited to the fees paid by Licensee hereunder. 13.0 COMMUNICATIONS AND COMMITMENT AUTHORITY Written notice shall be deemed to have been duly made when it is given directly to an authorized representative of either LabWare or Licensee, or to the person or persons so designated by either LabWare Master Services Agreement Page 6 of 7 LabWare LIMS Master Services Agreement party, or is sent by the US Postal Service or commercial document express carrier to the last known address of either LabWare or Licensee. 13.1 LabWare a. Authority to Commit The following individuals shall have the authority to commit and represent LabWare in all commercial and technical dealings with Licensee during the Term of this Agreement. David Ferrell David Nixon J. Carlisle Peet b. Mailing Address In the case of written notice to LabWare, if given directly to the following individuals, or if mailed to LabWare Global Services, Inc. at Three Mill Road, Suite 102, Wilmington Delaware 19806. 13.2 Licensee The following individuals shall have the authority to commit and represent Licensee in all commercial and technical dealing with LabWare during the Term of this Agreement: a. Commercial Terms and Conditions Contractual correspondence, including but not restricted to, terms, conditions, price adjustment, or any change to the non - technical scope of the Agreement should be addressed to: b. Technical Issues and Scope of Work All technical correspondence and communications related to the scope of work should be addressed to: IN WITNESS WHEREOF, the parties have each caused this Agreement to be executed by its duly authorized representatives as of the date stated below. Lab a ~ bal Services, Inc. Licensee ------ Tic Title Date / — ! ` Date END LabWare Master Services Agreement Page 7 of 7 LabWare LIMS Master Services Agreement LabWare Master Services Agreement Page 8 of 7 LabWare LIMS Master Maintenance Agreement This Master Maintenance Agreement (hereinafter referred to as "Agreement ") is entered into by and between LabWare, Inc., having its offices at 3 Mill Road, Suite 102, Wilmington, DE 19806 (hereinafter referred to as "LabWare "), City of Denton having its offices at 1100 S. Mayhill Rd., TX 76208 (hereinafter referred to as "Licensee "). Both LabWare and Licensee agree that the terms and conditions contained in this Agreement shall govern the maintenance services offered to Licensee by LabWare. 1.0 DEFINITIONS a. Employee — Shall mean any employee of LabWare. b. LabWare Software - Shall mean any available LabWare licensed program that may be obtained, by license, from LabWare under the LabWare Master Software License Agreement. C, Maintenance — Shall mean the on going development and support of LabWare Software, including, but not limited to, new releases, upgrades, interim fixes, enhancements and improvements to the operation and functionality of the LabWare Software. d. Effective Date — Shall be the date on which the second of the parties hereto have executed this Agreement. e. Support Service — Shall mean phone and e-mail support and access to on -line knowledge bases. 2.0 SCOPE OF AGREEMENT During the Term of this Agreement, Licensee, who has purchased a license for LabWare Software pursuant to a separate License Agreement, may purchase Maintenance services and /or Support Service pursuant to this Agreement for said LabWare Software. 2.1 Agreement Documents a. Whole Agreement This Agreement and any Schedules or Addendums which may be attached hereto, all of which are incorporated by reference, together constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous discussions, documents, agreements and prior course of dealing and will not be effective until signed by both parties. b. Validity of Parts If any word, phrase, clause, article, or other provision contained in this Agreement is adjudicated or otherwise found to be against public policy, void or unenforceable, then said word, phrase, clause, article or provision shall be modified or amended to; (1) make the Agreement valid and enforceable; and (2) continue to reflect the original intent of the parties to this Agreement. C. Captions and Headings LabWare Master Maintenance Agreement Page 1 of 10 LabWare LIMS Master Maintenance Agreement The captions of each Article of this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement. d. Effect of Waiver A waiver by either party hereto of any right hereunder, or of any failure to perform, or of any breach by any party will not be a waiver of any other right hereunder or of any subsequent breach or failure by the other party, whether of similar nature or otherwise. 2,2 Right to Transfer This Agreement may be assigned by either party without the prior written approval of the other. 2.3 Changes and Modifications Any and all modification to the terms and conditions of this Agreement shall be made by mutual agreement between the two parties and must be evidenced by issuance of a written addendum signed by an authorized representative of both LabWare and Licensee. 2.4 Applicable Laws a. Compliance with Laws LabWare and Licensee agree that they shall comply with all laws, ordinances, rules, regulations, codes, and orders of any public authority having jurisdiction over their respective activities, as it applies to the scope of work covered by this Agreement, and shall comply with all terms and conditions of any insurance policies covering any part of the work. b. Jurisdiction This Agreement shall be construed in accordance with the laws of the Country, State or other local jurisdiction identified on Addendum 1, without giving effect to the principles of conflict of laws of such jurisdiction. Licensee and LabWare hereby agree on behalf of themselves that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate federal, state or other local court in the jurisdiction identified on Addendum 1. 3.0 TERM OF AGREEMENT 3.1 initial Term �1= #ae-- i -tt�t- tit&'= 1' t��- �1!- S�iseet�nl_ s17a14� #�t�ws+r- #�eri��d��f���a��ew y�u�- et��nae�aa�.�n�t1- L1C��.�Ff�e 1- date.. .�..�1�iAr- n�,•�.�;- �m�- ���:an ,1-- �°�;�#1"�t�g slai�ttlly�- prrsv�idl herein. t�l� #ea.rl..tegr���t y-ktl- part -ens- hereto- ,- at��d- c�:�t i�ayment- a�f -tl�te -fry �±et�- curt #�- ire- �tl�i�; �r�t��e�l thi�trseme�y- la�a���de�l- l�r- a���cliti�r�almne�pea��- t�it�n�IT helve- ��- ���t�fl eaoh, as et feAh in ceeti 4.1 hPI contract It is the intention of the City of Denton to award a d A the Awarded Contractor shall have the option to renew this contract for an additional two (2) . o, ear .. ow, The W 1tvrjrd4w-&e LabWare Master Maintenance Agreement Page 2 of 10 LabWare LIMS Master Maintenance Agreement v; extended as needed, not to exceed a total of six (6) months. 4.0 MAINTENANCE LabWare shall provide Licensee with Maintenance service, including new releases, upgrades, interim fixes, enhancements and improvements to the operation and functionality of all LabWare Software programs that Licensee has purchased under the terms of the License Agreement. While the herein described Maintenance service does not include telephone support, it does provide for online access to LabWare's DevTrack and LabTrack. 4.1 Costs and Charges The following costs and charges will be assessed for Maintenance of each LabWare Software program held by Licensee: a. Initial Purchase Maintenance will be provided to Licensee for a period of twelve (12) months from the purchase date of the initial software license from LabWare at no cost. b. Additional Purchases For the purposes of this Agreement, the purchase of additional licenses of the LabWare Software shall not extend or modify the Effective Date for calculating the time period for providing free Maintenance for the LabWare Software. A Maintenance charge shall be paid immediately on all licenses purchased after the first anniversary of the Effective Date. Payment shall be prorated on a daily basis, from the shipping date of the additional licenses to the next anniversary of the Effective Date Supplemental Maintenance On or before thirty (30) days prior to the anniversary of the Effective Date of the LabWare Software program, Licensee shall have the option to purchase additional one (1) year periods of supplemental Maintenance coverage for each LabWare Software program licensed to Licensee, by giving to LabWare written notice of its intent to so purchase. d. Fees for Additional Maintenance Service The cost to purchase additional one (1) year periods of supplemental Maintenance coverage shall be charged as a percentage of the aggregate value for the total number of licenses held by Licensee. For the first year of additional coverage under this Agreement, the percentage shall be set forth on Addendum 2. LabWare shall have the right to increase these percentages in any future year by giving the Licensee written notice of its intention to increase such fees at least thirty (30) days prior to the start date of the relevant Maintenance period, ; provided, however, that the percentage amount of any annual increase shall not exceed the aggregate percentage increase in the Index listed on Addendum 1, for the period (i) commencing on the later of (A) the first day of the first full calendar month preceding the Purchase Date or (B) the first day of the first full calendar month preceding the effective date of the most recent prior annual increase, and (ii) continuing through the first day of the first full calendar month preceding the effective date of the annual increase to be announced; and provided further that in no event shall any such increase result in Licensee being LabWare Master Maintenance Agreement Page 3 of 10 LabWare LIMS Master Maintenance Agreement charged a rate that exceeds LabWare's standard rate applicable to new customers. 4.2 Implementation of New Releases, Upgrades, Fixes and Enhancements During the term of this Agreement, Licensee shall have an option to accept or reject the implementation of any and all new releases, upgrades, fixes and enhancements provided by LabWare as part of the Maintenance service. LabWare agrees that it will fully maintain the current version and the two previous versions of the then current version of the LabWare Software programs licensed to Licensee, provided that the Licensee has extended this Agreement and the Maintenance coverage as provided herein for such LabWare Software programs. Should Licensee elect not to implement a new release, upgrade, bug fix or enhancement to a LabWare Software program, LabWare shall no longer be obligated to honor the Maintenance service requirements of this Agreement if the bug fix requested cannot be fixed in the version of the LabWare Software currently in use by the Licensee. 4.3 Reinstatement of Maintenance Service Should Licensee discontinue Maintenance Service for any period of time and at a later date desire to reinstate the Maintenance service, Licensee must first make a payment to LabWare in an amount equal to the payments that would have been made if Licensee had not had an interruption in Maintenance service. 4.4 Error Classification and Fault Resolution The services provided hereunder are solely for addressing problems in the standard product. The Licensee will be asked to provide verification information so that LabWare can reproduce the fault on LabWare's support system. The LabWare team will provide general help on a per case basis, but reserves the right to charge for consultancy services for general assistance and help with all other forms of fault fixing, and support including but not limited to; (i) Errors resulting from operator error; (ii) errors resulting from configuration changes or ineffective testing; (iii) errors resulting from modifications made by the Licensee; and (iv) errors resulting from environmental problems with the Licensee's IT infrastructure, e.g. database, network, ODBC drivers, SMS. Once an error has been reported to the LabWare team and verified by LabWare as a LabWare product bug, the priority of the resolution shall be agreed to between the support representatives of Licensee (who must have passed a LabWare training class and be competent with LabWare Software) and LabWare. In exceptional circumstances, should urgent fixes be required, LabWare will endeavor to provide workarounds or individual bug fixes. The norm will be that maintenance releases are provided every three to five months. The Licensee plays a major role in maintaining the desired reliability by adopting appropriate testing prior to going live and /or the introduction of any changes. This includes the modification of static data which is the most common form of system error. LabWare does not warrant to fix all bugs. Obscure or minor bugs may be simply documented in the LabWare knowledge bases for the benefit of all users. Bugs with efficient workarounds may be closed with an explanation of the suggested workaround. 5.0 SUPPORT SERVICE If requested, LabWare shall provide Licensee with telephone "Hotline" support services for all of the LabWare Software for the hours and locations listed on Addendum 1 ( "Telephone Support Service "). In the event that Licensee subscribes to the maintenance service in Section 4 above, Licensee must subscribe to the support service described herein. LabWare agrees to use its best efforts, expertise and resources to resolve Licensee's technical questions and operational issues in the shortest time possible. It is understood and agreed that this Support Service does not include LabWare Master Maintenance Agreement Page 4 of 10 LabWare LIMS Master Maintenance Agreement anything covered by the maintenance hereunder, including but not limited to bug fixes and improvements to functionality or enhancements that are introduced by LabWare in new releases and/or upgrades to the LabWare Software program. Further, for each fee paid below, one (1) person (the "named user "), identified in writing by Licensee to LabWare, shall be permitted to contact LabWare. The individual identified by Licensee must attend or have attended and passed a LabWare training session, and must be competent with the LabWare Software. The Support Service is not to be used for training, configuration or implementation. 5.1 Terms of Support Service The following costs and charges will be assessed for Support Service: a. Support Service Licensee shall have the option to purchase Support Service for one (1) year beginning on the Effective Date for all of LabWare Software programs, at a price to be determined each year by LabWare. b. Supplemental Support Service On or before thirty (30) days prior to the anniversary of the Effective Date of the LabWare Software program, Licensee shall have the option to purchase additional one (1) year periods of Support Service coverage for each LabWare Software programmed licensed to Licensee, by giving to LabWare written notice of its intent to so purchase. 5.2 Online Support Service Each named user identified by Licensee shall have access to LabWare's online support resources which include SupportTrack and KnowledgeTrack. 6.0 TERMS OF PAYMENT Licensee shall pay LabWare the net value of each submitted invoice, within 30 calendar days from the date the invoice is actually received by Licensee. Time is of the essence with respect to all payments by Licensee. Past due payments of more than thirty (30) days shall bear interest at the rate of one and one -half percent (1 %z %) per month or the maximum interest rate permitted by law from the due date, whichever is less. The fees payable under this Section 6 are exclusive of and Licensee shall pay and hold LabWare harmless from all taxes, levies, imposts, duties, VAT charges, or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or an instrument or agreement required hereunder, and all interest, penalties, or similar liabilities with respect thereto, except such taxes as are imposed on or measured by LabWare's net income or property. All sums stated in this Agreement as being payable by Licensee to LabWare are exclusive of VAT or similar other taxes, use and sales taxes, which amounts shall be borne exclusively by Licensee. Licensee shall provide evidence that all applicable taxes have been paid to the appropriate taxing authority by delivering to LabWare receipts thereof within thirty (30) days after the due date for such tax payments. 7.0 TERMINATION OF AGREEMENT This Agreement shall automatically terminate if not renewed on an annual basis as set forth in Section 3. LabWare Master Maintenance Agreement Page 5 of 10 LabWare LIMS Master Maintenance Agreement Without prejudice to any other rights, LabWare may terminate this Agreement upon written notice at any time, if- G) Licensee fails to perform any of its obligations under this Agreement; or (ii) Licensee becomes insolvent or is unable to pay its debts as they mature, or a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against Licensee, or a court appoints a temporary or permanent receiver, trustee, or custodian for the assets of Licensee, or Licensee makes an assignment for the benefit of creditors, or Licensee fails for any reason to function in the ordinary course of business; or (iii) Licensee defaults under the terms of any other agreement it had entered into with LabWare. Licensee will have a period of thirty (30) days after receipt of written notice to cure the breach (provided the breach is capable of cure). If Licensee fails to do so, LabWare may immediately terminate this Agreement. Also, if during any twelve (12) month period, LabWare gives more than two (2) termination notices to Licensee pursuant to this Section, then, regardless of whether Licensee cures the underlying breaches or defaults, LabWare may immediately terminate this Agreement. Further, LabWare has the right to pursue any legal action and equitable remedies that may be available. Licensee may terminate this Agreement in whole if LabWare becomes insolvent or is unable to pay its debts as they mature, or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against LabWare, or if a court appoints a temporary or permanent receiver, trustee or custodian for the assets of LabWare, or if LabWare makes an assignment for the benefit of creditors, or if LabWare fails for any reason to function in the ordinary course of business, or LabWare fails to perform a material obligation set forth in this Agreement, or fails in any way to comply with any of the conditions or provisions of this Agreement. Licensee shall provide LabWare with a sixty (60) day grace period to remedy any default hereunder. The grace period shall commence upon receipt of a written notice of default by LabWare. In the event LabWare fails to remedy said default, Licensee may, without limiting any other remedy available to it in law or equity, either withhold performance that may otherwise be due under this Agreement or terminate the Agreement The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose, and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligations on behalf of the other party for any purpose whatsoever. 8.1 LabWare Employees LabWare shall be responsible for supervising, directing, hiring, firing and training its employees and shall only assign individuals to Licensee's account that meet industry standards and qualifications. LabWare further affirms that it shall maintain complete control over, and responsibility for, its own employees and operations and those of its subcontractors. 8.2 Subcontractors and LabWare Implementation Partners No provision of this Agreement, or any subcontract awarded by LabWare, shall be construed to create a contractual relationship between the subcontractor and Licensee or to create an obligation LabWare Master Maintenance Agreement Page 6 of 10 LabWare LIMS Master Maintenance Agreement to pay or be responsible for the payment of any monies that may be due to any subcontractor from LabWare. 8.3 Unforeseen Delays LabWare shall not be liable for delays in the performance of its obligations hereunder due to causes beyond its control including, but not limited to, acts of God, acts of Government authorities, strikes or inability to obtain labor or materials on time. 8.4 Employment Practices During the Term of this Agreement, both LabWare and Licensee agree not to purchase the services of each other's current employees, either directly as a consultant or indirectly as an independent contractor working through another business entity representing that employee. 9.0 WARRANTY Any repair or replacements that are required to be performed by LabWare under the provisions of this Warranty shall comply with all of the requirements and specifications of this Agreement and shall be in accordance with industry standards that are in effect at the time of completing the work. LABWARE MAKES NO OTHER WARRANTIES, WHETHER WRITTEN ORAL, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR PURPOSE OR MERCHANTABILITY. FURTHER, LABWARE MAKES NO WARRANTIES AS TO THE PERFORMANCE OF ANY THIRD PARTY SOFTWARE. 111X 1 The information to be exchanged or discussed in implementing this Agreement is considered by LabWare or Licensee, as the case may be, to be confidential, proprietary, or trade secret in nature whether such information is marked as such or not and regardless of the form of media ( "Proprietary Information "). With respect to all such Proprietary Information, LabWare and Licensee each agree to: (i) Use commercially reasonable efforts to maintain the same in confidence, (ii) Not disclose the same to any third party, (iii) Use the same only for the purposes of implementing the undertakings of the respective parties under this Agreement, and (iv) Limit access to the Proprietary Information to the employees of LabWare or Licensee, as the case may be, who have a need to know, who have agreed to honor the terms hereunder, and who will safeguard such disclosed Proprietary Information against disclosure with at least the same degree of care as with their Company's own Proprietary Information. This duty of confidentiality shall expire five (5) years after the date of the last disclosure of such Proprietary Information hereunder, or five (5) years after Licensee last uses the LabWare Software. The foregoing obligations shall not apply, however, to any such Proprietary Information which: LabWare Master Maintenance Agreement Page 7 of 10 LabWare LIMS Master Maintenance Agreement (i) Can be demonstrated to have been in the possession of LabWare prior to its disclosure by Licensee or Licensee prior to its disclosure by LabWare; or (ii) Is now or hereafter becomes generally available to the public other than by violation of this Agreement; or (iii) Is disclosed to LabWare by a third party having no obligation to Licensee or disclosed to Licensee by a third party having no obligation to LabWare; or (iv) Is developed by LabWare or Licensee, as the case may be, without reference in any manner to the disclosed Proprietary Information; or (v) Is disclosed pursuant to a requirement of a governmental agency or of law without similar restrictions or other protection against public disclosure, or as to which disclosure is required by operation of law; provided, however, that LabWare or Licensee, as the case may be, will first have given written notice of such required disclosure to the other party, and taken reasonable steps to allow the other party to seek to protect the confidentiality of the information required to be disclosed. Simply because a particular aspect of the Proprietary Information is included, but not specifically disclosed in the more general information otherwise available to the public or Licensee or LabWare, as the case may be, does not operate to relieve LabWare or Licensee of their respective confidentiality obligations herein. Notwithstanding expiration or termination of this Agreement, the duties of confidentiality undertaken as to Proprietary Information disclosed prior to such expiration or termination shall survive thereafter provided above. l��c��ro��e��n w�tNtmtigr- I�o�(��rn��tne oaf- thi��Ag�s��t ;- �a�l�- l�at= ly- l�er�ich�t�ll inc#rt���it�yat��� I��� l ar t�l s ik�+� e�tl as pa y- l i tee a rtr stf this-Article ...sh4l- are deemed—to nolude -di otorw, e €lteet° y 4mp4oyees, -4 01i4s,....ar cl set t� tsp- �� � ; t c a i tst trr t cl all liabrl% tie; alias —k „ clau ag s s pewz e: it arltdr�ag..reosi artl l c u sel C`c , ...whether - or- after c- ���l�let- l�saa -e�i =- the- �a��r- l�l�e���+rt�le�'� ��slz�- �a�a; y- be- i�- ae�tt+�+e�- a�r�w�awta��cl- Icy- tl�e�atl�a= t�tty�= at��l' i1 payees I y..ret son of any arts ��t��ass�����b ra�r :mncltsots +tt ligeax ��a clol�t�14 ta�� Ilte l Bart ��l...tl NEITHER PARTY HERETO SHALL HAVE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. Licensee agrees that LabWare's liability hereunder for damages of any nature whatsoever, except with respect to liability for patent and copyright infringement, is limited to the fees paid by Licensee hereunder. LabWare Master Maintenance Agreement Page 8 of 10 LabWare LIMS Master Maintenance Agreement 14.0 COMMUNICATIONS AND COMMITMENT AUTHORITY Written notice shall be deemed to have been duly made when it is given directly to an authorized representative of either LabWare or Licensee, or to the person or persons so designated by either party, or is sent by the US Postal Service or commercial document express carrier to the last known address of either LabWare or Licensee. 14.1 LabWare a,. Authority to Commit The individuals named in Addendum 1 shall have the authority to commit and represent LabWare in all commercial and technical dealings with Licensee during the Term of this Agreement. b. Mailing Address In the case of written notice to LabWare, the notice shall be given directly to the individuals referred to above, or mailed to LabWare at the address indicated on Addendum 1. 14.2 Licensee The individuals listed in Addendum 1 shall have the authority to commit and represent Licensee in all commercial and technical dealing with LabWare during the Term of this Agreement: IN WITNESS WHEREOF, the parties have each caused this Agreement to be executed by its duly authorized representatives as of the date stated below. LabWg � c,. Licensee By By 'Fit e + Title Date 1-16-1 END LabWare Master Maintenance Agreement Page 9 of 10 Date LabWare LIMS Master Maintenance Agreement ADDENDUM 1 I . LabWare Inc. 3 Mill Road, Wilmington, DE 19806 2. Effective Date: TBD 3. Location of purchase pursuant to Section 2.1 4. Jurisdiction pursuant to Section 2.4 (b) fie, Texas, USA 5. Litigation Venue pursuant to Section 2.4 (b) fie, Texas, USA` 6. LabWare individuals authorized to represent LabWare, Inc. (a) David H Nixon (b) Carlisle Peet (c) David Ferrell (d) Vance Kershner 7. Individuals authorized to represent Licensee: a) Commercial Terms and Conditions. Contractual correspondence, including, but not restricted to, terms, conditions, price adjustment, or any change to the non - technical scope of the Agreement should be addressed to: 1) 2) 3) b) Technical Issues and Scope of Work. All technical correspondence and communications related to the scope of work should be addressed to: LabWare Master Maintenance Agreement Page 10 of 10 LabWare LIMS Master Maintenance Agreement 1) 2) 3) LabWare Master Maintenance Agreement Page 11 of 10 LabWare LIMS Master Software License Agreement This Master Software License Agreement (hereinafter referred to as "Agreement ") is entered into by and between LabWare Inc., having its offices at 3 Mill Road, Suite 102, Wilmington, DE 19806 (hereinafter referred to as "LabWare ") and City of Denton having its offices at 1100 S. Mayhill Rd., TX 76208 (hereinafter referred to as "Licensee "). Both LabWare and Licensee agree that the terms and conditions contained in this Agreement shall govern the sale, licensing and discounting of all Software offered to Licensee by LabWare. 1.0 DEFINITIONS a. Employee — Shall mean any employee of LabWare. b. LabWare Software - Shall mean any available LabWare licensed program that may be obtained, by license, from LabWare under this Agreement. C. Effective Date — Shall be the date listed on Addendum 1. d. Capacity — Shall mean the number of concurrent users authorized for simultaneous access to an instance of the LabWare Software. e. Third Party Software — Shall mean a third party's proprietary software that LabWare either sublicenses or which is acquired by license and embedded in the LabWare Software. 2.0 SCOPE OF AGREEMENT During the Term of this Agreement, Licensee is hereby granted the right to purchase nonexclusive LabWare Software licenses and equipment at the prices and in accordance with the terms and conditions that are listed in Addendum 2, which is attached hereto and made a part hereof. 2.1 Licensee Purchase Orders Licensee shall acquire a license for LabWare Software by issuance of individual purchase orders that reference and are subject to the terms and conditions of this Agreement. In the event of any inconsistencies between the language of this Agreement and any purchase orders issued, the language of this Agreement shall control. All purchases made under this Agreement shall be considered to have been made in the Country and City identified on Addendum 1, and this Agreement shall be considered to have been executed in the Country and City identified on Addendum 1. 2.2 Other LabWare Products LabWare products, software, and equipment that are not listed in Addendum 2 are not covered by this Agreement but may be incorporated into this Agreement by issuing supplemental Addendums as may be agreed to in writing by both parties. 2.3 Agreement Documents a. Whole Agreement This Agreement and all Addendums referred to herein or attached hereto, all of which are incorporated by reference, together constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous discussions, documents, agreements and prior course of dealing and will not be effective until signed by both parties. b. Validity of Parts LabWare Master Software License Agreement Page 1 of 11 LabWare LIMS Master Software License Agreement If any word, phrase, clause, article, or other provision contained in this Agreement is adjudicated or otherwise found to be against public policy, void or unenforceable, then said word, phrase, clause, article or provision shall be modified or amended to; (1) make the Agreement valid and enforceable; and (2) continue to reflect the original intent of the parties to this Agreement. C. Captions and Headings The captions of each Article of this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement. d. Effect of Waiver A waiver by either party hereto of any right hereunder, or of any failure to perform, or of any breach by any party will not be a waiver of any other right hereunder or of any subsequent breach or failure by the other party, whether of similar nature or otherwise. 2.4 Right to Transfer Neither this Agreement, nor any portion of this Agreement, nor any rights, licenses or obligations hereunder, may be assigned, encumbered or in anyway transferred by Licensee without the prior written approval of LabWare, which approval may be withheld for any reasonable reason whatsoever. 2.5 Changes and Modifications Any and all modification to the terms and conditions of this Agreement shall be made by mutual agreement between the two parties and must be evidenced by issuance of a written addendum signed by an authorized representative of both LabWare and Licensee. 2.6 Applicable Laws a. Notices and Compliance with Laws LabWare and Licensee agree that they shall give all notices and comply with all laws, ordinances, rules, regulations, codes, and orders of any public authority having jurisdiction over their respective activities, as it applies to the scope of work covered by this Agreement, and shall comply with all terms and conditions of any insurance policies covering any part of the work. b. Jurisdiction This Agreement shall be construed in accordance with the laws of the jurisdiction identified on Addendum 1, without giving effect to the principles of conflict of laws of such jurisdiction. Licensee and LabWare hereby agree on behalf of themselves that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be in the venue identified on Addendum 1. 3.0 TERM OF AGREEMENT 1..�tcAr�se� g�ra�• �, t��Ltrr�=. tl��greer���r�t�- �Ii- �- r�s��ai��wi�- �- 1` �tll�lt�rc- t�dllss��- ��t- lseel�et��ityy- �ru�4e tefminated earlier- as provided in Seetien 7 of this Agr-eemerA-. LabWare Master Software License Agreement Page 2 of 11 LabWare LIMS Master Software License Agreement 4.0 PRICE The pricing schedule specified in Addendum 2 to this Agreement shall remain firm until the date set forth on Addendum 2, or if no date is set forth for a period of ninety (90) days from the date of the Addendum 2. 5.0 GRANT OF LICENSE 5.1 Grant of License Under the provisions of this Agreement, LabWare shall grant to Licensee a nonexclusive license to use LabWare Software on equipment and systems owned, leased, rented, operated or otherwise controlled by Licensee. Each installation of the LabWare Software shall require a programmatic key called a "license SLL ", which shall be provided by LabWare in the form of an electronic file and installed as part of the LabWare Software. Use of the License shall be subject to a capacity limitation, expressed as the number of concurrent users authorized for simultaneous access to the Production Instance (as defined in Section 5.2 below). The Capacity limitation for each license shall be set by and encoded in the license SLL. Notwithstanding such capacity limitations, Licensee may designate any number or persons as authorized users. Licensee may add capacity at any time by purchasing additional licenses at a fee to be agreed to by the parties. 5.2 Implementation LabWare will issue one or more license SLL file(s) and shall provide such file(s) to Licensee with the delivery of Licensee's LabWare Software. For each license SLL Licensee may implement a single Production Instance of the LabWare Software (an Instance shall mean a single database occurrence including a single LabWare Software database schema, where the schema is defined as the database tables delivered with and thereafter configured for use with the LabWare Software) of the LabWare Software. Licensee may use any number of licenses for non - production use for training, development, testing, maintenance, enhancements, and/or troubleshooting conducted in connection with Licensee's production environment at the production site. The creation and use of such non - production Instances shall be subject to the following condition: Each such non- production Instance shall be used for development, testing, training, maintenance, enhancement and/or troubleshooting of the same single Production Instance (Production Instance shall mean that database Instance used to store and retrieve Licensee's live data, such live data being that data derived from Licensee's actual business operations in connection with Licensee's use of the LabWare Software) for which the purchased license is intended to be used. 5.3 Copyright Protection The LabWare Software covered by this Agreement, including without limitation, all copies thereof and passwords therefore and all rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights inherent therein and /or appurtenant thereto, shall remain the property of LabWare and shall only be licensed to Licensee for authorized use as described in this Agreement. Licensee shall not, by virtue of this Agreement or otherwise, acquire any proprietary rights LabWare Master Software License Agreement Page 3 of 11 LabWare LIMS Master Software License Agreement whatsoever in the LabWare Software, each being confidential information of LabWare and the sole and exclusive property of LabWare. Any right not expressly granted to Licensee by this Agreement is hereby expressly reserved by LabWare. All LabWare Software is protected by United States copyright laws and international treaty provisions. Licensee agrees to secure and protect the LabWare Software in a manner consistent with the maintenance of LabWare's right therein, and in accordance with the terms of this Agreement, and to take appropriate action by instruction or agreement with its employees who are permitted access to the LabWare Software to satisfy its obligations hereunder. Licensee shall cooperate with and assist LabWare in identifying and preventing any unauthorized use, copying or disclosure of the LabWare Software. Without limitation of the foregoing, Licensee shall advise LabWare immediately in the event Licensee learns or has reason to believe that any person has violated or intends to violate the confidentiality of the LabWare Software or the proprietary rights of LabWare, and Licensee will, at Licensee's expense, cooperate with LabWare in seeking injunctive or other equitable relief against any such person. Licensee acknowledges that the disclosure of any aspect of the LabWare Software or any other confidential information referred to herein, or any information which at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to LabWare inadequately compensable in damages at law, and LabWare shall be entitled to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available and Licensee hereby consents to the obtaining of such injunctive relief. 5.4 Backup Copy Licensee may make a reasonable number of copies of each LabWare Software program obtained under the terms of this Agreement solely for backup or archival purposes. 5.5 Printed Material Licensee may not copy or reproduce any of the written materials accompanying the LabWare Software without first obtaining the written permission of LabWare, such permission not to be unreasonably withheld. 5.6 Restrictions Licensee shall not rent, lease, grant sublicenses or resell LabWare Software to others, nor shall Licensee reverse engineer, decompile or disassemble any LabWare Software obtained under the terms of this Agreement. Any attempt to do any of the above shall be void without effect and will be grounds for immediate termination of this Agreement and revocation of the licenses granted to License hereunder. 5.7 Non LabWare Software LabWare's Software is designed to operate in conjunction with certain third party operating systems ( including Windows 2000, windows NT and Windows XP), databases (including Oracle, SQL Server and D132 running on most platforms including Microsoft, Unix or AS400) and software provided by others, including Third Party Software (including Citrix and SAP). LabWare will assist Licensee in identifying the requirements for these products but assumes no responsibility or liability for the purchase, use or maintenance thereof. Further, certain Third Party Software may be provided with the LabWare Software. Licensee agrees to comply with the terms of any license under which the Third Party Software is provided. 6.0 TERMS OF PAYMENT Licensee shall pay LabWare the net value of each submitted invoice, within 30 calendar days from the date the invoice is actually received by Licensee. Time is of the essence with respect to all LabWare Master Software License Agreement Page 4 of 11 i Master Software License Agreement payments by Licensee. Past due payments of more than thirty (30) days shall bear interest at the rate of one and one -half (1 %z %) percent per month or the maximum interest rate permitted by law from the due date, whichever is less. The fees payable under this Agreement are exclusive of and Licensee shall pay and hold LabWare harmless from all taxes, levies, imposts, duties, VAT charges, or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or an instrument or agreement required hereunder, and all interest, penalties, or similar liabilities with respect thereto, except such taxes as are imposed on or measured by LabWare's net income or property. All sums stated in this Agreement as being payable by Licensee to LabWare are exclusive of VAT or similar other taxes, use and sales taxes, which amounts shall be borne exclusively by Licensee. Licensee shall provide evidence that all applicable taxes have been paid to the appropriate taxing authority by delivering to LabWare receipts thereof within thirty (30) days after the due date for such tax payments. 7.0 TERMINATION OF AGREEMENT The licenses purchased by Licensee shall remain in full force and effect in perpetuity unless after such termination Licensee violates Sections 5 or 10, which Sections, as well as Sections 2.1, 5, 7, 10, 12, 13, 14, 15 and 16, shall survive termination of this Agreement for so long as Licensee is in possession of or is using the LabWare Software. In the event Licensee violates Sections 5 or 10 at any time, Licensee shall within thirty (30) days of written notice from LabWare return all LabWare Software to LabWare. Without prejudice to any other rights, LabWare may terminate this Agreement upon written notice at any time, if- (i) Licensee fails to perform any of its obligations under this Agreement; or (ii) Licensee transfers, by operation of law or otherwise, or attempts to transfer, without LabWare's written consent, any interest in, or right, privilege or obligation under this Agreement; or (iii) There is a material change, however accomplished, in the direct or indirect ownership or operating management of Licensee without LabWare's prior written consent which, in the reasonable opinion of LabWare, impairs Licensee's ability to perform its obligations under this Agreement in a fashion consistent with the understandings of the parameters of this Agreement; or (iv) Licensee becomes insolvent or is unable to pay its debts as they mature, or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against Licensee, or if a court appoints a temporary or permanent receiver, trustee, or custodian for the assets of Licensee, or if Licensee makes an assignment for the benefit of creditors, or if Licensee fails for any reason to function in the ordinary course of business; or (v) Licensee defaults under the terms of any other agreement it had entered into with LabWare. Licensee will have a period of thirty (30) days after receipt of written notice to cure the breach (provided the breach is capable of cure). If Licensee fails to do so, LabWare may immediately terminate this Agreement. Also, if during any twelve (12) month period, LabWare gives more than two (2) termination notices to Licensee pursuant to this Section, then, regardless of whether Licensee cures the underlying breaches or defaults, LabWare may immediately terminate this Agreement. If LabWare terminates the Agreement for any of the above reasons or any other LabWare Master Software License Agreement Page 5 of 11 Master Software License Agreement reason of default, the license for LabWare Software sold hereunder shall be immediately revoked and Licensee agrees to return all property of LabWare to LabWare, or certify that it has been destroyed within thirty (30) days of receipt of written notice that it is in default of this Agreement. Further, LabWare has the right to pursue any legal action and equitable remedies that may be available. Licensee may terminate this Agreement in whole if LabWare becomes insolvent or is unable to pay its debts as they mature, or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against LabWare, or if a court appoints a temporary or permanent receiver, trustee or custodian for the assets of LabWare, or if LabWare makes an assignment for the benefit of creditors, or if LabWare fails for any reason to function in the ordinary course of business, or LabWare fails to perform a material obligation set forth in this Agreement, or fails in any way to comply with any of the conditions or provisions of this Agreement. Licensee shall provide LabWare with a thirty (30) day grace period to remedy any default hereunder. The grace period shall commence upon receipt of a written notice of default by LabWare. In the event LabWare fails to remedy said default, Licensee may, without limiting any other remedy available to it in law or equity, either withhold performance that may otherwise be due under this Agreement or terminate the Agreement. In such case the licenses purchased hereunder shall remain in full force and effect unless or until Licensee violates Sections 5 or 10 of this Agreement. If termination hereunder is due to a default on the part of LabWare, then Licensee shall be entitled to return the LabWare Software to LabWare and receive a refund of eighty percent (80 %) of the License fee it has paid for the LabWare Software. No refund will be allowed once the LabWare Software has been operational for six (6) months. In the event Licensee desires to retain the LabWare Software there will be no refund of any amount. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose, and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligations on behalf of the other party for any purpose whatsoever. 8.1 LabWare Employees LabWare shall be responsible for supervising, directing, hiring, firing and training its employees and shall only assign individuals to Licensee's account that meet industry standards and qualifications. LabWare further affirms that it shall maintain complete control over, and responsibility for, its own employees and operations and those of its subcontractors. 8.2 Subcontractors No provision of this Agreement, or any subcontract awarded by LabWare, shall be construed to create a contractual relationship between the subcontractor and Licensee or to create an obligation to pay or be responsible for the payment of any monies that may be due to any subcontractor from LabWare. 8.3 Unforeseen Delays LabWare shall not be liable for delays in the performance of its obligations hereunder due to causes beyond its control including, but not limited to, acts of God, acts of Government authorities, strikes or inability to obtain labor or materials on time. LabWare Master Software License Agreement Page 6 of 11 LabWare LI S Master Software License Agreement 8.4 Employment Practices During the Term of this Agreement, both LabWare and Licensee agree not to purchase the services of each other's current employees, either directly as a consultant or indirectly as an independent contractor working through another business entity representing that employee. However, this provision shall not apply to employees of either party responding to advertisements made at job fairs, through either parties internal communications or in media circulated to the general public at large, or former employees, agents, or subcontractors of either party. 9.0 WARRANTY 9.1 LabWare warrants and guarantees that the Software provided to Licensee under the terms of this Agreement shall be of the proper kind and quality, suitable for their intended use and that all workmanship shall be in accordance with industry standards that are in effect at the time of completing the work. 9.2 Any repair or replacements that are required to be performed by LabWare under the provisions of this Warranty shall comply with all of the requirements and specifications of this Agreement. 9.3 The warranty provided hereunder extends for one (1) year from the Purchase Date.. LABWARE MAKES NO OTHER WARRANTIES, WHETHER WRITTEN ORAL, OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR PURPOSE OR MERCHANTABILITY. LABWARE MAKES NO WARRANTIES AS TO THE PERFORMANCE OR FITNESS OF ANY THIRD PARTY SOFTWARE. XI 10 W I PJ DICV . The information to be exchanged or discussed in implementing this Agreement is considered by LabWare or Licensee, as the case may be, to be confidential, proprietary, or trade secret in nature whether such information is marked as such or not and regardless of the form of media ( "Proprietary Information "). With respect to all such Proprietary Information, LabWare and Licensee each agree to: (i) Use commercially reasonable efforts to maintain the same in confidence, (ii) Not disclose the same to any third party, (iii) Use the same only for the purposes of implementing the undertakings of the respective parties under this Agreement, and (iv) Limit access to the Proprietary Information to the employees of LabWare or Licensee, as the case may be, who have a need to know, who have agreed to honor the terms hereunder, and who will safeguard such disclosed Proprietary Information against disclosure with at least the same degree of care as with their Company's own Proprietary Information. This duty of confidentiality shall expire five (5) years after the date of the last disclosure of such Proprietary Information hereunder, or five (5) years after Licensee last uses the LabWare Software, whichever is later. The foregoing obligations shall not apply, however, to any such Proprietary Information which: LabWare Master Software License Agreement Page 7 of 1 I i Master Software License Agreement (i) Can be demonstrated to have been in the possession of LabWare prior to its disclosure by Licensee or Licensee prior to its disclosure by LabWare. (ii) Is now or hereafter becomes generally available to the public other than by violation of this Agreement, (iii) Is disclosed to LabWare by a third party having no obligation to Licensee or disclosed to Licensee by a third party having no obligation to LabWare, or (iv) Is developed by LabWare or Licensee, as the case may be, without reference in any manner to the disclosed Proprietary Information. (v) Is disclosed pursuant to a requirement of a governmental agency or of law without similar restrictions or other protection against public disclosure, or as to which disclosure is required by operation of law; provided, however, that LabWare or Licensee, as the case may be, will first have given written notice of such required disclosure to the other party, and taken reasonable steps to allow the other party to seek to protect the confidentiality of the information required to be disclosed. Simply because a particular aspect of the Proprietary Information is included, but not specifically disclosed in the more general information otherwise available to the public or Licensee or LabWare, as the case may be, does not operate to relieve LabWare or Licensee of their respective confidentiality obligations herein. Notwithstanding expiration or termination of this Agreement, the duties of confidentiality undertaken as to Proprietary Information disclosed prior to such expiration or termination shall survive thereafter provided above. 1t c a al ;ec as r tth l l r Merl ror a �a c :1 lets,... gtee � e t, eae'll -1: a ly..lrofetcr fihall indeninif "wi--hold It trt� less t &te ok:itet° Party (ult h4er as t d it tl is tdcic$ ^ l ll -1 eet fed Itt it r lttc alt a tors, s�ll- ta�et?s~ et�al�tl��yee�;;�a�tuls� at�lset��^ �ltats���IN��tt�- 4t��c�l- ��tit�tst -- arty... �d- �tllw- lia�lJ lt- t.....��4�s�t��t!:,- -lttsse clau�tage w. .. tetas itt I;tel tg—r s arable oovi sel.,. rtes wl alt ..aritwt�g t x._. t...,tler cattttllel:tott ct:(. ilatt k here4 +twat °; as ltlt tnaty l ittt °td�tslait"@ ley Ili tt#ler paty apt aty ` 1 t Itl� Mrg t tat f arty apt„ nrxs r tat; a�t c�;tttal tot,; -negli ettr tm.el fatNl l ar tl e part 44,11e ittclert�nil= ylttg�p4 t�, �tt��t"ty�- ettslc- t;yQ�- agetzt - l�e�tnt�' �telo��- ��1=- t�- itale�t��ayitag�t=: 12.0 WAIVER OF CONSEQUENTIAL DAMAGES NEITHER PARTY HERETO SHALL HAVE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, LabWare Master Software Lice -nse Agreement Page 8 of 11 _ I O Master Software License Agreement INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. 179111NEVEWWW, 13.1 LabWare shall, at LabWare's own expense, defend all suits or proceedings instituted against Licensee and shall pay any award of damages and costs that may be assessed against Licensee, for any claim that the LabWare Software furnished by LabWare under this Agreement, or any part thereof, constitutes an infringement of any valid patent, trademark, copyright, or other property rights. 13.2 Licensee shall give LabWare prompt notice of the institution of any such suit or proceeding and shall furnish LabWare (at LabWare's expense) all needed information, authority, and assistance to enable LabWare to defend the same. 13.3 If any LabWare Software is held to constitute an infringement and its use is enjoined, LabWare shall, within a reasonable time, secure for Licensee at LabWare's own expense, the right to continue using said LabWare Product, by suspension of the injunction, by procuring for Licensee a license, or otherwise, or shall, at LabWare's own expense, as Licensee may elect, replace such Product with suitable non - infringing software, equipment, or apparatus, or modify same so that it becomes non - infringing, all without damage or injury to any other property of Licensee. 13.4 The foregoing shall not be construed to impose upon LabWare any liability whatsoever in respect to United States patents for methods and processes to be carried out with the aid of said software, equipment or apparatus, except those which are inherent in the LabWare SoftWare as famished. 14.0 LIMITATION OF LIABILITY Licensee agrees that LabWare's liability hereunder for damages, except with respect to liability for patent and copyright infringement, is limited to the fees paid by Licensee hereunder. Licensee acknowledges that the LabWare Software and Products may be subject to United State or other governments' export laws and regulations, and any use or transfer of the LabWare Software or Products must be permitted or authorized under those regulations. Except as expressly permitted in this Agreement, Licensee shall not export or import the LabWare Software or Products. To the extent any export or import is permitted under this Agreement, Licensee shall be responsible for ensuring that it complies with all laws and regulations of the United State and other applicable governments relating to the LabWare Software or Products. Licensee at its own expense shall indemnify, defend and hold LabWare free and harmless from any and all claims, damages, losses, costs, actions and expenses, including attorney's and experts' fees, arising from any breach of the foregoing obligation. iCI \il I] YY For so long as Licensee is in possession of LabWare Software, LabWare shall have the right, upon forty -eight (48) hour notice, to access Licensee's facilities in order to determine whether the LabWare Software is being used in accordance with this Agreement. Each audit will be conducted at Licensee's place of business during Licensee's normal business hours. LabWare will pay for the cost of such audit. Audit information will only be used for purposes of this Agreement, including, without limitation, judicial enforcement of the obligations of Licensee. LabWare Master Software License Agreement Page 9 of I 1 LabWare LIMS Master Software License Agreement 17.0 COMMUNICATIONS AND COMMITMENT AUTHORITY Written notice shall be deemed to have been duly made when it is given directly to an authorized representative of either LabWare or Licensee, or to the person or persons so designated by either party, or is sent by the US Postal Service or commercial document express carrier to the last known address of either LabWare or Licensee. 17.1 LabWare a. Authority to Commit The individuals named in Addendum 1 shall have the authority to commit and represent LabWare in all commercial and technical dealings with Licensee during the Term of this Agreement. Mailing Address In the case of written notice to LabWare, if given directly to the above individuals, or if mailed to LabWare at the address indicated on Addendum 1. 17.2 Licensee The individuals named in Addendum 1 shall have the authority to commit and represent Licensee in all commercial and technical dealing with LabWare during the Term of this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date stated below. LabN'r+t a e Licensee Y Y - "141,1 W Title Date / m END Date LabWare Master Software License Agreement Page 10 of 11 LabWare LIMS Master Software License Agreement 1, LabWare Inc. 3 Mill Road, Wilmington, DE 19806 2. Effective Date: TBD 3. Location of purchase pursuant to Section 2.1 4. 5. Jurisdiction pursuant to Section 2.6 (b) T' °hi • ^r° TTC ^ , Texas USA 6. Litigation Venue pursuant to Section 2.6 (b) _DehTN^"° T S "_ Texas, USA 7. LabWare individuals authorized to represent LabWare, Inc. (a) David H Nixon (b) Carlisle Peet (c) David Ferrell (d) Vance Kershner 8. Individuals authorized to represent Licensee: a) Commercial Terms and Conditions. Contractual correspondence, including, but not restricted to, terms, conditions, price adjustment, or any change to the non - technical scope of the Agreement should be addressed to: 1) 2) 3) b) Technical Issues and Scope of Work. All technical correspondence and communications related to the scope of work should be addressed to: 1) 2) LabWare Master Software License Agreement Page 11 of 11 LabWare LIMS Master Software License Agreement 3) LabWare Master Software License Agreement Page 12 of 11 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE PURCHASE OF A LABORATORY INFORMATION MANAGEMENT SYSTEM (LE\4S) AND A THREE (3) YEAR SOFTWARE MAINTENANCE AGREEMENT FOR CONTINUED VENDOR SUPPORT OF THE SOFTWARE, 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 5441 AWARDED TO LABWARE, INC. IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $72,840). 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 books; 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 NUMBER VENDOR AMOUNT 5441 LabWare, Inc. $72,840 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 books; 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 take any actions that may be required or permitted to be performed by the City of Denton under File 5441 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 , 2014 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: File 5441 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Elton Brock 349 -7133 ACM: Bryan Langley � -A SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding an initial one (1) year contract with the option to extend for two (2) additional one (1) year periods for the supply of electric utility distribution hardware, connectors, arms, and accessories for the City of Denton Distribution Center; providing for the expenditure of funds therefor; and providing an effective date (RFP 5392- awarded to multiple vendors as shown on Exhibit A in the annual estimated amount of $1,283,667 for a three (3) year not -to- exceed amount of $3,851,001). RFP INFORMATION This RFP is to supply electric distribution hardware, connectors, arms, and accessories which are used by Denton Municipal Electric. These items will be carried in the Distribution Center Working Capital inventory. Request for Proposals (RFP) were sent to 328 prospective suppliers, including three (3) Denton firms. In addition, notice was advertised in the local newspaper, and the specifications were placed on the City of Denton Materials Management website for prospective suppliers to download. Five (5) responses were received meeting the minimum qualifications. The pricing sheet showing all responsive proposers and their Best and final Offer (BAFO) is included as Exhibit 1. The overall scoring matrix with evaluation criteria and Best and Final Offer (BAFO) is included as Exhibit 2. The submitted proposals were ranked and evaluated by section to insure that similar use items are purchased from the same vendor. Exhibit A of the attached ordinance shows the award for each section. Consolidating these electric utility items into one contract will make the ordering process more efficient and stocking these items in the Distribution Center will allow staff to keep an acceptable minimum amount on hand. This will result in a savings of employee time and resources. RECOMMENDATION Award to multiple vendors as shown on Exhibit A in the annual estimated amount of $1,283,667 for a three (3) year estimated expenditure of $3,851,001. The annual estimated expenditure amount is not only based on estimated quantities for current usage, but also factors in anticipated needs for projects included in Denton Municipal Electric's three (3) year Capital Improvement Plan. Agenda Information Sheet February 4, 2014 Page 2 PRINCIPAL PLACE OF BUSINESS Techline, Inc. HD Supply Stuart C. Irby Co. Wesco Distribution, Inc. Ft. Worth, TX Corinth, TX Fort Worth, TX Pittsburgh, PA ESTIMATED SCHEDULE OF PROJECT This is an initial one year contract with options to extend the contract for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION The items in this RFP will be funded out of the Distribution Center Working Capital account and charged back to the using department. FXHTUTTC Exhibit 1: Pricing Sheet Exhibit 2: Evaluation /Ranking sheet Respectfully submitted: C.�� Chuck Springer, 349 -8260 Director of Finance 1 AIS -RFF 5392 RFP 5392 -Pricing Sheet for SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES Exhibit 1 MEW mm mm m mmmmm ® ®_®_ m mm m mmmmm RFP 5392 -Pricing Sheet for SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES Exhibit 1 MEN EM === MM =MMM11 =MMM11 MfflMMM MMM MN MN MMM MAMMM=M MM OEM M= M= MfflMMM =MMM111111 ® M MAMMM=MMM11 =MMM11 =MMM111111 M110MMM =M M =MMMW 11MMMN MMM =MMMI =MMMI =MMM0 M111MMM Mll� 11MMMN mom =MMM0 =OlEONlEElEEO 11MMMN OEM M�MMM MMIM M=11MM MMIMN 11MMMN OEM MillIMMM MMIMN 11MMMN MN 11MMMN INIMMEMME MMIMEN NEME IN IMMENIMMEMME OEM RFP 5392 -Pricing Sheet for SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES Exhibit 1 El®® El MEME ME 111MMEMINE El Elm Elm El MOMMEMEM ins' MEMME Ell NE01011000mllml mom RFP 5392 -Pricing Sheet for SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES Exhibit 1 RFP 5392 -Pricing Sheet for SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES Exhibit 1 mom mmm mmm mmm RFP 5392 -Pricing Sheet for SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES Exhibit 1 MEE NONE El®® IN IMENEMIMMEME NEME Elm El RFP 5392 -Pricing Sheet for SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES Exhibit 1 RFP 5392 -Pricing Sheet for SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES Exhibit 1 MIM MIN MIMIMIM MIMIMIM mom Mll� M MIMIM MMI �MMMI �MMMIIMMM IMMIMMIM MIMIMIM M� M� M� EMMIM IMMIM M`M`M'M mmmw�� MIMIMIM MIMIMIM mom ENUZZ IMMIZINEIMMIZZ M M�� MIMIMIM MMMMI MMMMI �MMI MIMIMIM MIMIMIM mmm�� MIMMI mmm�� mom IMMIMMM M mmm�� MIMMI IMMIM MMMMIMIM M� MIMMI MMMMIMMI M� IMMIM MMAMllMMN M� MIMMI MMMMMIM M� RFP 5392 -Pricing Sheet for SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES Exhibit 1 mom mmm- RFP 5392 -Pricing Sheet for SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES Payment Terms ce Paid in 20 days ce Paid in 15 days ce Paid in 10 days Exhibit 1 ®® ®® ®® ®® ®® ®® ®® ®® RFP 5392 - SUPPLY OF ELECTRIC DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES - EVALUATION ONLY Exhibit 2 ® ®® ® ® ®® ® ® ®® ® ® ® ®® m 0 M. SEEM MMMM�mm� m 0 M. IBM ME- ®®®m EMMEMEEMMEMMEM m 0 M. MEN MENNEEMENEENEME MEN IMEEM ® IN MINE IN m 0 M. m 0 M. one= Payment Terms ce Paitl in 20 tlays ce Paitl in 15 tlays ce Paid in 10d s ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING AN INITIAL ONE (1) YEAR CONTRACT WITH THE OPTION TO EXTEND FOR TWO (2) ADDITIONAL ONE (1) YEAR PERIODS FOR THE SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES FOR THE CITY OF DENTON DISTRIBUTION CENTER; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5392- AWARDED TO MULTIPLE VENDORS AS SHOWN ON EXHIBIT A IN THE ANNUAL ESTIMATED AMOUNT OF $1,283,667 FOR A THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $3,851,001). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of Electric Distribution Hardware, Connectors, Arms, and Accessories 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. IC ' VENDOR 5392 Techline, Inc. 5392 HD Supply 5392 Stuart C. Irby Co. 5392 Wesco Distribution, Inc. AMOUNT Exhibit A Exhibit A Exhibit A Exhibit A 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 5392 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 , 2014 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY MIN APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 4- 0RD -RFP 5392 CONNECTORS, ARMS AND ACCESSORIES - EVALUATION ONLY* ild� =--ANCHORING & GR• ■ ------ - - - - -- ®®® ®--- - - - - -- CLAMP LOT��Nl 11311 1 amain DEADEND, AUTO 4/0 AL, Z BAIL STIAP, CONDUIT I DOLE 3/4" ild� m ®® im�M-NNI'T�MNIIN1111TIlU MMMMMEMMEMME ,,RESTER LUG MMMMSGUEEI�Njll ll�M III 11G ®®® ® ®® ........................ AMjANG ENT FBRG LASS HD 8 BRA' BELL, RB ERG LASS IS' NUT, SQUARE 5/8" 1 ®® MAIIET, TRANSIORNIER ARRESTER ® ■.■..■,■■. IN, ROLE TOIWINVION1111 NN, Al. WOOD W/NYLON THREAD 1 §® ® ®.■..■,■■. CONDUIT I' LOCKNUT FOR GALVANIZED STEEL RIGID CONDUIT 6' INSULATOR,GUY STRAIN FGLS 54 NSU�ATTORR 4/0 795 PORCELAIN, U NECK GLARE SHIELD, ULTRA FLOOD STREETLIGHT, l.W FPS COKRA STREELIGHT, 250W 480V FPS fll _ 77, 7777, fll _ ���� �����m������ ®®®- _� - ®� -� minion WOOPER FUSES WMMI FUSE, S&C ENDFIF�FING�PME GEAR) Annual Pricing Based — Quantity Only Annual Pricing with Additional Q—tiel Based an Anticipated Growth fll _ $586,1]0.]4 $9,943.07 $21,790.45 $9,838.00 $1,200,000.00 $20,000.00 $43,667.00 $20,000.00 TOTAL $62],]42.26 KEARNEY FUSE LINKS AND CONNECTORS Annual Pricing Based — Quantity Only Annual Pricing with Additional Q—tiel Based an Anticipated Growth fll _ $586,1]0.]4 $9,943.07 $21,790.45 $9,838.00 $1,200,000.00 $20,000.00 $43,667.00 $20,000.00 TOTAL $62],]42.26 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND STUART C. IRBY (RFP # 5392) THIS CONTRACT is made and entered into this day of A.D., 20, by and between Stuart C. Irby Company a corporation, whose address is 7125 Belton Street, Fort Worth, TX 76118, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rile 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 revised RFP # 5392 Supply of Electric Distribution Hardware, Connectors, Arms and Accessories a copy of which attached hereto, and incorporated herein for all purposes as Exhibit B. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A ") (b) Revised City of Denton's RFP 5392 (Exhibit `B ") (c) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C "). (d) Supplier's Proposal. (Exhibit "D "); These documents make 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 5392 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY M APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY RFP 5392 F*-W SIGNATURE .. .. ....... 21Z -3,;-1 PHONE NUMBER Ql/-7 FAX NUMBER BY: GEOiG--EC-. CAMPBELL,, CITY MANAGER Date: Exhibit A Special Terms and Conditions The Quantities indicated on Exhibit D are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the price. Individual purchase orders will be issued on an as needed basis. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing(t_ i yofdenton .coin, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. Contract Terms The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this contract for an additional two (2) 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. Total Contract Amount The contract total shall not exceed $60,000. Pricing shall be per Exhibit D attached. Delivery Lead Time Products shall be delivered to the City per the days noted in Exhibit D after receipt of the order. RFP 5392 EXHIBIT B REVISED RFP DOCUMENT 1 1 The City of Denton Purchasing Department 901 -B Texas Street Denton, Texas 76209 REQUEST FOR PROPOSALS RFP 5392 SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES FOR THE CITY OF DENTON NIGP CLASS and ITEM 285 74 285 81 Issue Date: October 28, 2013 Response due Date and Time (Central Time): Tuesday, November 19,2013,2:00 p.m. CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES SOLICITATION CHECKLIST Checklist for RFP # 5392 Title: RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Opening Date: 1111912013 at 2:00 PM Contractor Name and Address: Contact: TX Taxpayer VIN #: Phone: Fax: Email: 1. Submit one (1) original and two (2) WRITTEN copies of submittal (REQUIRED) a. Submit Written Proposal by courier, hand delivery, or mail b. Exhibit 1 -Excel Pricing Sheet, Review, complete, and return 2. Email Exhibit 1 in Excel format to ebids(a)cityofdenton.com 3. Submittal Content (Meet Section III) • Review all requirements • Ensure your firm meets all stated minimum requirements • Documentation included to support the evaluation criteria. • Company Information • Relevant Experience and Qualifications • Quality Assurance / Quality Control • Litigation History Statement • Addendum(s) Reviewed and return • Attachment A, Review • Attachment B, Not Applicable • Attachment C, Review, complete, and return • Attachment D, Review, complete, and return • Attachment E, Not Applicable • Attachment F, Review, complete, and return • Attachment G, Review, complete, and return • Attachment H, Review, complete, and return • Attachment I, Review • Attachment J, Review, complete, and return PAGE 3 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES TABLE OF CONTENTS Section I Section II Section III Section IV Section V Section VI Attachment A Attachment B Attachment C Attachment D Attachment E Attachment F Attachment G Attachment H Attachment I Attachment J Exhibit I Exhibit 2 General Procurement Process and Procedures Submittal Requirements Evaluation and Award Payment and Performance Requirements Standard Terms and Conditions Not Applicable Not Applicable Business Overview Questionnaire Forms Exception Form Not Applicable References Conflict of Interest Form Disadvantaged Business Utilization Sample Contract Documents Acknowledgment Pricing Sheet Technical Specifications PAGE 4 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Section I General 1. INTRODUCTION In accordance with the provisions of Texas Local Government Code, Chapter 252, The City of Denton (the City) is requesting proposals to contract with an individual or business with considerable experience in providing goods or services of this RFP. The proposals and the cost solutions shall be submitted to the City of Denton in a sealed submission, in accordance with Texas Local Government Code 252.0415 and 252.042. The awarded individual or business shall possess a proven track record of using innovative approaches to providing goods and services that represent the best value to their clients. The awarded individual or business shall have the ability to accomplish all aspects of the requested services. The selected individual or firm should be able to provide innovative methods to deal with municipal challenges, and cost effective solutions. The City of Denton is exempt from Federal Excise and State Sales Tax. A. COMMUNITY PROFILE Denton, Texas is a Main Street City in the North Texas region at the apex of Interstate 35 East and Interstate 35 West. Established in 1857, Denton is the county seat of Denton County and was named for John B. Denton. Denton is unique in composition; the city is comprised of over 92 square miles which radiate out in all directions from the downtown core, with a population of 113,000. In addition to the unique physical composition of the city, there is a unique character to the City. It is comprised of a diversity of neighborhoods and land uses that range from historical residential and commercial districts to new residential subdivisions and industrial complexes to greenbelt areas and newly annexed rural areas. Denton is home to two state universities, the University of North Texas, and Texas Woman's University, and two regional hospitals. The City is traversed by state highways, rail lines, and Interstate 35 E & W. This summer Denton County Transportation Authority (DCTA) began operation of a passenger rail service that nuns from downtown Denton to the City of Carrollton, where passengers may transfer to the Dallas Area Rapid Transit (DART) system and continue travelling by rail within the Metroplex region. The rail service is accompanied by the opening of two rail stations in Denton. The City of Denton has also taken a proactive approach in its pursuit of environmental and sustainable initiatives. The City has, through DME, become a national leader in renewable energy with more wind power per capita than any other city in the United States and through Denton Solid Waste, become a national leader in sustainability and environmental stewardship through various award winning programs. B. BACKGROUND The City of Denton has experienced significant growth over the past few years and significant utilization of goods and services to meet the ever growing needs of a vibrant community has PAGE 5 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES driven the need to obtain long term commitments to supply materials and services. The City desires an innovative solution that ensures a successful approach to provide goods and services; and allows for fluid responsiveness to upcoming changes — both anticipated and unforeseen. The use of technological opportunities throughout the service delivery is encouraged. C. COMMODITY OR SERVICE DESCRIPTION The City is seeking a long term contract for the SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS AND ACCESSORIES that will be distributed through a centralized distribution center (warehouse) to field crews. The products and services shall be accomplished per the Technical Specifications as identified in Exhibit 2. 2. MINIMUM SUBMISSION REQUIREMENTS The following minimum requirements must be demonstrated in order for the submission to be considered responsive to the City of Denton. Any proposal received, which is determined to not meet these mandatory requirements shall be immediately disqualified and rejected as non- responsive. • Three (3) years experience providing similar products or services. • Three (3) references from governmental entities for the products or services requested. The City prefers references from municipalities of similar size. • The Proposing individual or business must be registered in the State of Texas, or the County of Denton, to provide the services required for the project, and the individual or business must have all licensure required by the State to provide any services required under this contact. Registration and licensing requirements for specialized services may be met through the use of subcontractors. If subcontractors are used, information on the subcontractor must be included in the response to this RFQ. Use of subcontractors does not relieve the general or primary contractor from full responsibility for the project performance. • Certificate of Status — Issued by the Texas Secretary of State A "certificate of status" is a certificate issued by the secretary of state that serves as official evidence of an entity's existence or authority to transact business in Texas. A certificate of status provides a statement of an entity's status, as well as the entity's current legal name and date of formation or registration. How do I obtain information about filing with the State of Texas, or obtaining copies or certificates from the Secretary of State? Webpage: http: / /www.sos .state.tx.us /corp /copies.shtml; Phone 512- 463 -5578; or email corpcertLt sos. state.tx.us • A defined level of industry knowledge and understanding. • Authorized manufacturer or distributor authorized to sell to the City of Denton, Texas. PAGE 6 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES • Submittal documents including Attachment C, F, H, K, J and Exhibit 1. 3. CONTRACT TERM It is the intention of the City of Denton to award a contract for a one (1) year period. The City and the Awarded Contractor shall have the option to renew this contract for an additional two (2) one - year periods. Materials and services undertaken pursuant to this RFP will be required to commence within fourteen (14) days of delivery of a Notice to Proceed. 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 in accordance with the provision of the section titled "price adjustments ", or the section(s) titled "termination ". Extension of contract terms will require mutual agreement of the parties. PAGE 7 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 4. PRICING Firm Price Pricing and discounts proposed is firm for the initial one -year period specified in the solicitation. Price decreases are allowed at any time. Price increases shall only be considered as stipulated below in paragraph 45, "PRICE ADJUSTMENTS ". Price Decreases/Discount Increases Contractors are required to immediately implement any price decrease or discount increase that may become available. The City of Denton must be notified in writing for updating the contract. 5. PRICE ADJUSTMENTS Prices quoted for the commodities or services described in the RFP must be firm for a period of one year from date of contract award. Requests made for pricing adjustments will be supported by manufacturer or supplier cost justification support, including, but not limited to, applicable industry index data provided by associated manufacturer(s) in accordance with the product represented. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre -price increase prices must be honored on orders dated up to the official date of the City of Denton approval and /or cancellation. The request can be sent by e -mail to: purchasing c cityofdenton.com Or mail to: City of Denton Attn: Purchasing Manager RFP 4 5392 901B Texas Street Denton, Texas 76209 Or call: City of Denton Purchasing (940) 349 -7100 The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. PAGE 8 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 6. SUBSTITUTIONS DME will only accept proposals for the specific manufacturers listed in the approved manufacturers list in pricing worksheet (Exhibit 1) The City has implemented a pre - approval process for substitution commodities and services. The commodity approval form can be obtained via email (karen.smith(cityofdenton.com). Supporting documentation or samples must be submitted for review by Purchasing, Engineering, field crews, QAG (Quality Assurance Group), and the manager of DME. Testing may be required and may take substantial time to review. Vendors are encouraged to submit forms and samples for consideration on the next solicitation for similar items. 7. DISQUALIFICATIONS Any terms and conditions attached to a solicitation will not be considered unless specifically referred to on a solicitation and may result in disqualification. Any proposals that do not clearly outline all qualifications may be disqualified. 8. INTELLECTUAL PROPERTY INDEMNIFICATION The contractor will indemnify, defend and hold harmless the City of Denton, and its authorized users, against any action or claim brought against the City of Denton, or its authorized users that is based on a claim that software infringes any patent rights, copyright rights or incorporated misappropriated trade secrets. Contractor will pay any damages attributable to such claim that are awarded against the City of Denton or its authorized users, in a judgment or settlement. If the City of Denton or its authorized users' utilization of the software becomes subject to a claim, or is likely to become subject to a claim, in the sole opinion of the City of Denton, or its authorized users, the Contractor shall, at its sole expense (1) procure for City of Denton or its authorized users, the right to continue using such software under the terms of this Contract; or (2) replace or modify the software so that it is non - infringing. 9. RIGHTS TO DATA, DOCUMENTS, AND COMPUTER SOFTWARE (GOVERNMENTAL ENTITY OWNERSHIP) Any software, research, reports studies, data, photographs, negatives or other documents, drawings or materials prepared by contractor in the performance of its obligations under this contract shall be the exclusive property of the City of Denton and all such materials shall be delivered to the City by the contractor upon completion, termination, or cancellation of this contract. Contractor may, at its own expense, keep copies of all its writings for its personal files. Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than the performance of contractor's obligations under this contract without the prior written consent of the City; provided, however, that contractor shall be allowed to use non - confidential materials for writing samples in pursuit of the work. The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works. PAGE 9 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 10. ADDING NEW PRODUCTS OR SERVICES TO THE CONTRACT AFTER AWARD Following the Contract award, ADDITIONAL services or products of the same general category that could have been encompassed in the award of this contract, and that are not already on the contract, may be added. A formal written request may be sent to successful Contractor (s) to provide a proposal on the additional services and shall submit proposals to the City of Denton as instructed. All prices are subject to negotiation with a Best and Final Offer ( "BAFO "). The City of Denton may accept or reject any or all pricing proposals, and may issue a separate RFP or IFB for the products after rejecting some or all of the proposals. The commodities and services covered under this provision shall conform to the statement of work, specifications, and requirements as outlined in the request. Contract changes shall be made in accordance with Local Government Code 252.048 11. COOPERATIVE PURCHASING/ PIGGYBACK OPTION The contract resulting from this solicitation will be available for use by all governmental entities, providing there is no conflict with any applicable statutes, riles, policies, or procedures. The governmental entities will have the option to use the pricing as agreed to within the resulting contract. Governmental entities will issue their internal purchase orders directly to the contractor(s), however, shall reference and cite the City of Denton contract number (RFP number) within the purchase order document. 12. QUANTITIES The quantities indicated on the Pricing Sheet (Exhibit 1) are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the prices. Individual purchase orders will be issued on an as needed basis. 13. PRODUCT CHANGES DURING CONTRACT TERM The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to purchasing c cityofdenton.com, with the RFP number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. 14. AUTHORIZED DISTRIBUTOR The respondent shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. PAGE 10 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 15. SAMPLES Respondents must make samples available upon request by the City of Denton prior to award with no costs to the City. 16. SHIPPING, DELIVERY, AND PACKAGING Identification of Shipments: In addition to the complete destination address, each delivery must be clearly marked with the purchase order number. Each shipment must be accompanied by a packing slip. Packaging and Labeling: All items shipped must be properly labeled, with weather resistant labeling, showing the brand name, package quantity, lot number (if applicable) and any other necessary identifying information. Special Delivery Requirements: Customers may have specific, internal delivery riles and policies. These will be provided on each purchase order issued by the customer. The contractor(s) will be required to adhere to those requirements. Hours of Delivery: Delivery shall be made during the hours of 8:00 am to 4:00 pm (CST) of the Customer unless prior approval for after -hours delivery has been obtained from the Customer. In the event of any approval by the Customer for after -hours delivery, Respondent may not invoice any additional charges for that delivery. Respondent is encouraged to obtain Customer's hours of operation at time of order. Delivery Schedule: Respondent's shall furnish, in the space indicated on the Mandatory Price Sheet, a delivery schedule for each line item as to time required for delivery after receipt of order (ARO) under normal conditions. Delivery Days means calendar days, unless otherwise specified. Failure to state delivery time may disqualify Respondent. The City of Denton may choose to negotiate delivery times. Delivery Delays: If delay is foreseen, Contractor shall give written notice to the Customer and must keep Customer advised at all times of status of order. Default in promised delivery (without accepted reasons) or failure to meet specifications authorizes the Customer to purchase goods and associated fulfillment services and services of this RFP elsewhere and charge any increased costs for the goods and associated fulfillment services and services, including the cost of re- soliciting, to the Contractor. Failure to pay a damage assessment is cause for Contract cancellation and /or removal of the Respondent from the City's authorized list of suppliers. PAGE 11 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Compliant Products: Providing products or materials which do not meet all specification requirements does not constitute delivery. Delivery does not occur until the Respondent delivers products or materials in full compliance with the specifications to Customer's F.O.B. destination, unless delivery is specifically accepted, in whole or in part, by the Customer. Customer reserves the right to require new delivery or a refund in the event that materials or products not meeting specifications are discovered after payment has been made. Restocking Fee: The Customer may request that a Contractor accept return of merchandise already delivered or that a Contractor cancel an order prior to delivery. If the return is required through no fault of the Contractor, the Contractor may request a reasonable restocking charge. 17. SAFETY AND ENVIRONMENTAL HAZARDS The City does not warrant or guarantee against the possibility that safety or environmental hazards or potential hazards (including premises and special defects) may exist at the City's facilities. The Contractor shall be responsible for identifying any hazardous conditions and notifying the City of these conditions in writing no later than 30 days after contract award and prior to initiation of service delivery on the property. This will be accomplished by the Contractor conducting an environmental assessment and an occupational health, and safety inspection of the service bay or field service areas by competent, qualified and appropriately licensed practitioners. The costs of these inspections and any subsequent corrective action will be negotiated between the City and the Contractor. All contractors to the City of Denton are required to ensure absolute safety standards are applied and enforced. The City of Denton will not be responsible for individual contractor safety, and the awarded contractor shall not hold the City of Denton responsible. Known hazards shall immediately be reported and all safety precautions shall be taken to prevent potential safety issues from occurring. 18. CONTRACTOR STANDARDS OF PERFORMANCE Monthly Time Standards - Contractors shall fully understand that the City relies on the product or service of the RFP to provide vital municipal services, and the availability and reliability of the equipment is of the essence. With this in mind, the Contractor shall meet the following performance standards at all times. Labor disputes, strikes, and other events, except those beyond the Contractor's control such as acts of God, shall not relieve the Contractor from meeting these standards. For service category, the Contractor must ensure the given level of service is achieved, within the designated number of working hours. Contractor shall deliver goods or services within specified delivery times for 95% of all orders. 19. PERFORMANCE LIQUIDATED DAMAGES The Contractor shall incur contractual payment losses, as initiated by the City for performance that falls short of specified performance standards as outlined below: PAGE 12 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES • Delivery beyond the contractual delivery times after receipt of order The Contractor shall be assessed a one (1 %) percent fee each week when any one of the performance standards outlined above are not met in full for "normal condition" orders and based on usages in line with estimated annual quantities provided by the City. At the end of each month, the City will review the monthly reports and determine the percentage of penalty to be assessed to the Contractor's monthly profit margin. 20. WARRANTIES The contractor shall provide a warranty that is standard in the industry, which is a "pass through" warranty condition for this agreement. Repair or Maintenance of fleet not performed to industry standards shall be accomplished at the contractor's expense, at the option of the City. 21. INSURANCE NOT APPLICABLE — THIS IS A COMMODITY ONLY CONTRACT 22. CONTRACTS The successful awarded vendor will be required to sign an original contract. A sample contract is provided in Attachment I — Sample Contract. Respondents shall review the document and note exceptions in the proposal. 23. ANTICIPATED PROBLEMS AND PROPOSED SOLUTIONS Respondent shall offer written observations, based upon previous experiences in public projects of this magnitude, addressing any anticipated problems and offer proposed solutions to those problems. PAGE 13 OF RFP # 5392 1. CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Section II Procurement Process and Procedures SCHEDULE OF EVENTS The City of Denton reserves the right to change the dates indicated below: Solicitation Schedule: Issue RFP: Deadline for Submission of Questions Deadline for Submission of Proposal: Evaluate and rank initial results: Completion of Negotiations: Official Award: 10/28/2013 11/12/2013 at 2:00 PM Central Time 11/19/2013 at 2:00 PM Central Time 11/27/2013 12/6/2013 12/17/2013 The City of Denton is using the RFP `Issue Date' as noted in the Schedule of Events above as the official 30 day notification requirement for an interview with a firm. 2. NON - MANDATORY PRE- SUBMITTAL CONFERENCE 3. 4. 5. SECTION NOT APPLICABLE PROPOSERS COST TO DEVELOP SUBMITTAL Respondents to this RFP are responsible for all costs of submittal preparation, delivery and any oral presentations required as part of the selection process. All materials submitted in response to the RFP become property of the City of Denton and will be returned only at the option of the City. MINIMUM RESPONSE Submittals that do not, at a minimum, contain the information as specified under Section III and Exhibit I Pricing Sheet will be subject to disqualification at the sole discretion of the City of Denton. If any Firm submitting a Proposal is a corporation, it must be registered to conduct business in the State of Texas. Proof of this registration must be included as part of the submittal. VALIDITY PERIOD The information included in the solicitation response(s), and any cost information obtained from a negotiation process, remain valid for 120 days from the response due date or until the contract is approved by the governing body. PAGE 14 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 6. REJECTION OF SUBMITTAL ANY PROPOSAL SUBMITTED AFTER THE DUE DATE AND TIME SPECIFIED WITHIN SECTION III, SHALL BE REJECTED. THE CITY SHALL REJECT PROPOSALS SUBMITTED BY FIRMS THAT DO NOT MEET MINIMUM QUALIFICATIONS. The City of Denton reserves the right to reject any and all submittals received in response to the RFP and to waive any minor technicalities or irregularities as determined to be in the best interest of the City. 7. PROPRIETARY INFORMATION If a Proposer does not desire proprietary information in the Proposal to be disclosed, the Proposer shall identify all proprietary information in the Proposal. This identification will be accomplished by individually marking each page or line item detail with the words "Proprietary Information ". If the Proposer fails to identify proprietary information, the Proposer agrees that by submission of its Proposal, that those sections shall be deemed non - proprietary and made available upon public request. Proposers are advised that the City, to the extent permitted by law, will protect the confidentiality of all Proposals. Proposer shall consider the implications of the Texas Public Information Act, particularly after the RFP process has ceased and the Contract has been awarded. While there are provisions in the Texas Public Information Act to protect proprietary information, where the Proposer can meet certain evidentiary standards, please be advised that a determination on whether those standards have been met will not be decided by the City of Denton, but by the Office of the Attorney General of the State of Texas. In the event a request for public information is made, the City will notify the Proposer, who may then request an opinion from the Attorney General pursuant to 552305, Texas Government Code. The City will not make a request of the Attorney General. 8. NON - ENDORSEMENT If a Proposal is accepted, the successful Proposer shall not issue any news releases or other statements pertaining to the award or servicing of the agreement that state or imply the City of Denton's endorsement of the successful Proposer's services. 9. UNAUTHORIZED COMMUNICATIONS After release of this solicitation, Proposer contact regarding this RFP with members of the RFP evaluation, interview or selection panels, employees of the City or officials of the City other than the Purchasing Manager, or authorized City of Denton purchasing staff, or as otherwise indicated is prohibited and may result in disqualification from this procurement process. No officer, employee, agent or representative of the Proposer shall have any contact or discussion, verbal or written, with any members of the City Council, members of the RFP evaluation, interview, or selection panels, City staff or City's consultants, or directly or indirectly through others, seeking to influence any City Council member, City staff, or City's consultants regarding any matters pertaining to this PAGE 15 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES solicitation, except as herein provided. If a representative of any Proposer violates the foregoing prohibition by contacting any of the above listed parties with who contact is not authorized, such contact may result in the Proposer being disqualified from the procurement process. Any oral communications are considered unofficial and non- binding with regard to this RFP. 10. ADDENDUMS Proposers are required to submit signed addendum acknowledgement(s) with their proposal. Proposers will be responsible for monitoring the City of Denton Purchasing Website at: http:// www.cityofdenton.com /index.aspx ?page =397 to ensure they have downloaded and signed all addendum(s) required for submission with their proposal. 11. CONTACT BETWEEN PROPOSER AND THE CITY OF DENTON Respondents shall direct all inquiries and communications concerning this RFP to the Point of Contact(s) listed below: City of Denton Procurement Point of Contact: Karen E. Smith Assistant Purchasing Manager 901 -B Texas Street Denton, TX 76209 (940) 349 -7100 Fax: (940) 349 -7302 karen. smith 2,cityofdenton. com PAGE 16 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Section III Submittal Requirements Proposals shall address the following criteria. For consideration, the proposal must submit the minimum criteria noted below. Proposals shall, as a minimum, include all the information described in Items 1 through 10 below to be considered responsive. The `Business Overview Questionnaire" included as Attachment C is an acceptable format for providing much of this information. A Microsoft Word copy of this form will be provided on receipt of an email request. Other information, if provided, shall be included as appendices at the back of the proposal. A firm may submit a solicitation response for one or more of the categories of services requested in this RFP. The City of Denton shall accept written submissions only, until November 19, 2013 at 2:00 pm Central. Firms shall submit one original copy signed by an officer authorized to bind the company, and 3 copies of the completed response to this solicitation in a sealed envelope. Additionally, the respondent shall provide a formatted CD(s) or memory drive, containing a complete copy of the contractor's response to this solicitation, or submit electronically to ebids (a�cityofdenton.com. The format shall be in Microsoft Office format. Submit rip cin for requested services as provided in Exhibit 1. Pricing shall be provided in hard copy with the written submission, and also e- mailed in Excel to ebids(a'cityofdenton.com before the proposal due date. The format shall be in Microsoft Word and Excel format only. Submittals shall include on the envelope and the cover sheet the following information: Request for Proposals (RFP) # 5392 SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Proposals may be hand delivered (by firm or express courier) to the address listed below; however, e- mailed only submittals will not be accepted. Additionally, no oral, telephone, telegraphic, or facsimile proposals will be accepted. Where solicitation responses are sent by mail or courier, the responsibility of timely delivery is the respondent's. Pages should be numbered and contain an organized, paginated table of contents corresponding to the section and page of the submittal. Appendices may be used for general firm information. The solicitation response shall be no more than 200 pages in length (excluding sample contracts, directories, and lists, etc.). All submittals, whether mailed or delivered by courier shall be sent to and received no later than November 19, 2013 at 2:00 p.m., Central Time at the following address: City of Denton Attention: Elton D. Brock, MBA, CTPM, CTCM, C.P.M. Purchasing and Materials Manager 901B Texas Street, Denton, TX 76209 940 - 349 -7100 Written proposals must be submitted by 2:00 p.m. on the response due date. An proposal received after the date and /or hour set for proposal opening will be returned PAGE 17 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES unopened. The City of Denton reserves the right to accept or reject in part or in whole any proposals submitted, and to waive technicalities of the submission, in the best interest of obtaining best value for the City. Each Contractor is responsible for taking the necessary steps to ensure their proposal is received by the date and time noted herein. The City is not responsible for missing, lost or late mail or any mail delays, internal or external, that may result in the proposal arriving after the set time. Proposals shall include on the envelope and the cover sheet with the RFP number and name. 1. COVER SHEET Include Respondent Company name, contact information, RFP number and name. 2. INTRODUCTION (EXECUTIVE SUMMARY) — 1 Page Maximum Briefly describe your understanding of the requested services, important issues, and City requirements. 3. FIRMS ORGANIZATION Name and Address of the Individual or Business b. General overview of the Business Business Profile(s), including: 1) Type of Business (limited partnership, corporation, etc.) 2) Business History and Age 3) Business Size (including number in each required discipline) 4) Areas of special concentration 5) Telephone number and fax number 6) Number of year firm in business 7) Amount of equity capital of the firm 8) Number and location of offices in Texas 9) Location of the office from which the work is to be managed 10) Service description with specific descriptions of responsibilities, successes and failures related to the project. Include website URLs for any service projects for which they are available. 11) Name and contact information for the project manager or other key contact with the entity contracting these products or services. 12) Details of any awards received. As stated above, completion of Attachment C - Business Overview Form may substitute for submission of the above information. Additionally, firms may submit additional information, to ensure a more complete understanding of the firm, and comprehension of the capabilities. PAGE 18 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 4. RELEVANT EXPERIENCE AND CAPABILITIES The responding individual or business shall provide pertinent information about the individual or business and related experience(s) with the requested products or services. Indicate what resources the individual or business will have available to allocate to the project. The respondent must currently be licensed to perform work in the State of Texas. A copy of current licensing must be included in your proposal. Relevant experiences and capabilities of the individual or business team members and team as a whole will be rated by the City by a review of both completed and on -going assignments, years of relevant experience in communities of comparable size, and credentials; greater weight will be given to project experience within the past five (5) years containing the team members proposed: a. Five (5) years experience with similar products or services, provide a description. b. A standard license or certification, if applicable. c. A defined level of industry knowledge and understanding d. The Proposing individual or business must be registered in the State of Texas, or the County of Denton, to provide the services required for the project, and the individual or business must have all licensure required by the State to provide any services required under this contact. Registration and licensing requirements for specialized services may be met through the use of subcontractors. If subcontractors are used, information on the subcontractor must be included in the response to this RFQ. Use of subcontractors does not relieve the general or primary contractor from full responsibility for the project performance. e. Certificate of Status — Issued by the Texas Secretary of State A "certificate of status" is a certificate issued by the secretary of state that serves as official evidence of an entity's existence or authority to transact business in Texas. A certificate of status provides a statement of an entity's status, as well as the entity's current legal name and date of formation or registration. How do I obtain information about filing with the State of Texas, or obtaining copies or certificates from the Secretary of State? Webpage: http: / /www.sos .state.tx.us /corp /copies.shtml; Phone 512- 463 -5578; or email corpcert2sos.state.tx.us. f The individual or business must disclose any business relationship that would have an effect, of a conflict of interest. A conflict of interest statement must be signed as part of the contract negotiated with the awardee(s). g. Must be an authorized manufacturer or distributor authorized by the manufacturer to sell to the City of Denton, Texas. PAGE 19 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 5. DISCLOSURES a. Respondent shall detail any and all relevant history of litigation involving public proj ects. b. Respondent shall detail any and all exceptions within the proposal response. c. The individual or business must disclose any business relationship that would have an effect, of a conflict of interest. A conflict of interest statement must be signed as part of the contract negotiated with the awardee(s). (Attachment G) 6. BUSINESS OVERVIEW Respondent shall complete the business overview questionnaire, Project Information Form & Schedule Compliance Form per Attachment C. 7. REFERENCES Respondent shall provide references including contact names, e -mail addresses and current, correct phone numbers of Firms or public entities for which you have performed similar professional services. Respondent shall complete Attachment F — References. 8. FEE STRUCURE — PRICING Submit pricing for requested products or services as provided in Exhibit 1. Pricing shall be provided in hard copy and emailed in Excel to ebids2cityofdenton.com before the proposal due date. 9. EQUIPMENT SCHEDULE NOT APPLICABLE 10. SAFETY RECORD NOT APPLICABLE 11. ACKNOWLEDGEMENT Submit a signed acknowledgement by authorized agent of the Proposing firm (Attachment J). 12. EXCEPTIONS The Request for Proposal (RFP) process allows for negotiation of the terms and conditions of this proposal. The respondent shall note any exceptions to the RFP document, on Attachment D, sign the document, and return with their proposal packet. If no exceptions are taken, the Respondent shall sign the document and return with their proposal packet. PAGE 20 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 13. PRODUCT LITERATURE NOT APPLICABLE 14. ADDITIONAL GENERAL REQUIREMENTS a. Prior to commencement of the services, the City and selected individual or business will conduct an initial meeting to review the overall scope, schedule, deliverables and planning process to implement a successful program. b. The awarded Contractor shall provide to the City of Denton, detailed reports of time and services provided to the City on a monthly basis. c. Staff available to assist the selected provider is limited; the proposals submitted should not anticipate extensive staff assistance during equipment repairs or maintenance. PAGE 21 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Section IV Evaluation and Award 1. EVALUATION PROCEDURES Selection of a Firm(s) to provide the aforementioned services will be in accordance with the City of Denton Purchasing Policies and procedures and the State of Texas Local Government Code 252.043. The City of Denton shall open all proposals and evaluate each respondent in accordance to the below criteria: Step 1: The City of Denton will evaluate the Proposal submission in accordance with the selection criteria and will rank the Firms on the basis of the submittals. The City of Denton, reserves the right to consider information obtained in addition to the data submitted in the Proposal. The selection criterion is listed below: a) Indicators of probable performance under contract and compliance with the specifications (FACTOR: 15 %). Indicators of probable performance under the contract to include: past vendor performance, financial resources and ability to perform, experience or demonstrated capability and responsibility, references, and the vendor's ability to provide reliable maintenance agreements and support. b) Delivery Timeframe (FACTOR: 5 %). The delivery time frame for goods after receipt of order (A.R.0) c) Compliance with the City's standard terms and conditions (FACTOR 10 %). The acceptance of the City's standard terms and conditions in the RFP. d) Price, Total Cost of Ownership (FACTOR: 70 %). The price of the items, to include total cost of ownership, such as installation costs, life cycle costs, and warranty provisions. In addition to the above factors, others that can be utilized as stated within Local Government Code 252.043 are: (1) the extent to which the goods or services meet the City's needs, (2)the impact on the ability of the City to comply with the laws and rules related to contracting with historically underutilized businesses and non - profit organizations employing persons with disabilities, (3) the long term cost to the City to PAGE 22 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES acquire the respondents' goods and services, and (4) any relevant criteria specifically listed in the solicitation by the City. The total possible score of the proposals shall be scored and weighted as indicated in Section IV, Step 1 items a -d. Based on the outcome of the computations performed, each proposal will be assigned a raw score. The assigned weight will then be applied to these scores to calculate an overall score for each proposal for completion of the final scoring process. The proposals shall be evaluated utilizing standard tools, based upon the weighted factors above, and will be assigned a final score. The City of Denton will proceed to Step 2, with the Firm(s) that are considered within the competitive range and present an overall best value to the City of Denton. Step 2: After the final ranking of the proposals and determination of Firm(s) that provide a best value to the City and are within the competitive range, provided the City of Denton elects to proceed without oral discussions, the City will immediately proceed to negotiate final pricing, terms and conditions with the highest ranked Firm or Firms. The City of Denton may elect to conduct oral discussions, request clarifications, and presentations concerning the project approach and ability to furnish the requirements, as part of the negotiation process. The City may elect to utilize a Best and Final negotiation phase to determine the Firm that provides the overall best value to the City. Step 3: The City of Denton Procurement Department shall provide a written recommendation to the City of Denton City Council, which represents "best value" and request authorization to proceed with contract execution for the proposed services. In accordance with Local Government Code 252.049, trade secrets and confidential information in competitive sealed bids are not open for public inspection. All proposals shall be opened in a manner that avoids disclosure of the contents to competing offerors and keeps the proposals secret during negotiations. A public opening will not be conducted with this process. THE AWARD PROCESS IS CONSIDERED OPEN AND ON -GOING UNTIL ALL FINAL NEGOTIATIONS HAVE CONCLUDED. After the contract has been awarded all proposals are open for public inspection and the unsuccessful respondent(s) may request a debriefing regarding their submittal. Please contact the City of Denton Materials Management staff to document the request for a debriefing. A meeting with the City of Denton Materials Management Staff and the using Department shall be provided in a timely manner. PAGE 23 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 2. AWARD The City reserves the right to award by line item, section, or by entire proposal; whichever is most advantageous, or provides the "best value" to the City, unless denied by the bidder. 3. PREFERENCES A. Environmentally Preferable Purchasing Policy Texas Local Government Code, Sec. 271.907. VENDORS THAT MEET OR EXCEED AIR QUALITY STANDARDS. (a) In this section, "governmental agency" has the meaning assigned by Section 271.003. (b) This section applies only to a contract to be performed, wholly or partly, in a nonattainment area or in an affected county, as those terms are defined by Section 386.001, Health and Safety Code. (c) A governmental agency procuring goods or services may: (1) give preference to goods or services of a vendor that demonstrates that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality; or (1) require that a vendor demonstrate that the vendor meets or exceeds any state or federal environmental standards, including voluntary standards, relating to air quality. (d) The preference may be given only if the cost to the governmental agency for the goods or services would not exceed 105 percent of the cost of the goods or services provided by a vendor who does not meet the standards. The cost may not exceed $100,000. This provision shall comply with City of Denton Resolution R2007 -032. PAGE 24 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Section V Payment and Performance Requirements These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's solicitation are applicable to Contracts /Purchase Orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Bidder, Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Sellers Proposal response, Invoice or Statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the Contract/Purchase Order these written provisions will take precedence. By submitting an Offer in response to the Solicitation, the Contractor agrees that the Contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the Contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall apply only to a Solicitation to purchase Services to be performed principally at the City's premises or on public rights -of -way. 1. PAYMENT AND INVOICES: Payment processing: The City review, inspection, and processing procedures for invoices ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals which call for payment before thirty (30) days from receipt of invoice, or cash discounts given on such payment, will be considered only if, in the opinion of the Purchasing Manager, the review, inspection, and processing procedures can be completed as specified. It is the intention of the City of Denton to make payment within thirty days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The 30 day processing period for invoices will begin on the date the invoice is received or the date the items or services are received, whichever is later. Direct deposit for payments: Contractors are encouraged to arrange for receiving payments through direct deposit. Information regarding direct deposit payments is available from the City of Denton Purchasing website: www.dentonpurchasing.com. Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201 -4299. A pro -forma invoice shall be sent to the contract administrator. It is the intention of the City of Denton to make payment on completed orders within thirty days after receipt of invoice or items; whichever is later, unless unusual circumstances arise. Invoices must be fully documented as to labor, materials, and equipment provided, if applicable, and must reference the City of Denton Purchase Order Number in order to be processed. No payments shall be made on invoices not listing a Purchase Order Number. Upon contract award, suppliers are encouraged to receive payments through direct deposit. PAGE 25 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 2. TAX EXEMPTION: The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article 20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any Contractor performing work under this contract for the City of Denton may purchase materials and supplies and rent or lease equipment sales tax free. This is accomplished by issuing exemption certificates to suppliers. Certificates must comply with State Comptroller's ailing 495 -0.07 and 495 -0.09. 3. PAYMENT TO PERFORMANCE MILESTONES: Awarded contractor shall prepare and submit invoices after completion of specific project milestones. The invoice shall detail the major milestones accomplished and detailed cost information for project. These milestones shall be submitted to the City of Denton and the City's Project Staff shall review such for completion and accuracy, prior to payment authorization. The respondent shall complete Exhibit 1, pricing sheet. PAGE 26 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Section VI Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's solicitation are applicable to Contracts/Purchase Orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Bidder, Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Sellers Proposal response, Invoice or Statement shall serti -e to modify the terms set forth herein. If there is a conflict between the provisions on the face of the Contract/Purchase Order these written provisions will take precedence. By submitting an Offer in response to the Solicitation, the Contractor agrees that the Contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the Contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall apply only to a Solicitation to purchase Sell -ices to be performed principally at the City's premises or on public rights-of-way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall firlly and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list shoeing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City'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 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to slip the deliverables under reserti -ation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be slipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. In the event shipping charges are applicable, The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reseives all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non - conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be fiu-rushed, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. PAGE 27 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES S. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of deliveiv, quality, and quantity. Any non - complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender: provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: INTENTIONALLY OMITED — MATERIALS ONLY CONTRACT. 10. WORKFORCE — INTENTIONALLY OMITED — MATERIALS ONLY CONTRACT 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: INTENTIONALLY OMITED — MATERIALS ONLY CONTRACT 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration Avith the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time- sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or Cit - sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above. provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as mai- be necessaiv on account of: i. delivery of defective or non - conforming deliverables by the Contractor: ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are filed or reasonable evidence indicating probable filing of such claims: iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment: iv. damage to the property of the City or the City's agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor: v. reasonable evidence that the Contractor's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay: PAGE 28 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES vi. failure of the Contractor to submit proper invoices Avith purchase order number, Avith all required attachments and supporting documentation: or vii. failure of the Contractor to comply Avith any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment Avill be made by check unless the parties mutually agree to payment by credit card or electronic transfer of fiords. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic fiords transfer. G. The awarding or continuation of this contract is dependent upon the availability of finding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfirlly available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there Av ill be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection Avith the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. 15. FINAL PAYMENT AND CLOSE -OUT: INTENTIONALLY OMITED — MATERIALS ONLY CONTRACT 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 Contractor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, withun ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available withun a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable withun five (5) business days of receipt of an inwice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms `` books ". ``records ". *'documents" and "other evidence ", as used above. shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: INTENTIONALLY OMITED — MATERIALS ONLY CONTRACT 19. WARRANTY- PRICE: The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees Avith any other firm or Avith any competitor. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, securit-v interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. PAGE 29 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 21. WARRANTY — DELIVERABLES: The Contractor represents to the best of its ability that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or reci-cled merchandise, and not used or reconditioned. A. Recvcled deliverables shall be clearly- identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law: and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be one year from the date of delivery of the deliverables, e+ from the date of acceptance of any replacement deliverables or as term stated by corresponding manufacturer. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty If the Contractor is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: INTENTIONALLY OMITED — MATERIALS ONLY CONTRACT 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non - conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is obseived performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. PAGE 30 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 27. TERMINATION FOR CAUSE: In the event of a default by either party, the other party shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the defaulting party within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the other party reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the non - defaulting party tie -= shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the non - defaulting as a result of the defaulting party's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post - judgment interest at the maximum lawful rate. Additionally-, in the event of a default by the Contractor, the Cit-v may- remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and seivices performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may- delay- scheduled deliveiv or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay- causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an agjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any agjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the seivices will be extended: provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors: the officers, agents, and employees of such subcontractors: and third parties): and /or (2) death, bodily injury, illness, disease, worker's compensation- loss of seivices, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non - conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE PAGE 31 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Attachment A. The successfirl firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactow to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum cany insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also fon and a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers" compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: Cit-v of Denton Materials Management Department 901B Texas Street Denton. Texas 76209 vii. The *'other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall can-y Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the undenwiter on any such policies. x. The City reseives the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory- law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. PAGE 32 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES xii. The Contractor shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. All deductibles or self- insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated withun the Contract. xiv. The insurance coverage's specified in withun the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City withun ten (10) calendar days after receipt of notice by the Contractor. Such notice to the Citv 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 whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal deliveiv to the Citv Attorney shall be to Citv Hall, 215 East McKirmev Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Seivice Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton. Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any bind of any third party: that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party: or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co- counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way dirnirrish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential lffiow -how, confidential business information, and other information which the City' or its licensors consider confidential) (collectively, *'Confidential hnformatioif'). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and /or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and /or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a marmer not expressly permitted PAGE 33 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information. which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentialit-v of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor, to the best of its ability and in working with the corresponding manufacturer(s), disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific ins- entions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor- to the best of its ability and in working with corresponding manufacturer(s), that such deliverables shall be considered as work made - for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made - for -hire, the Contractor . to the best of its ability and with corresponding manufacturer(s), assigns to the City (and agrees to cause each of its employees providing seivices to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) title, and interest in and to such deliverables. With respect to such work made -for- hire, the Contractor to the best of its ability and with corresponding manufacturer(s) execute, acknowledge, and deliver and cause each of its employees providing seivices to the City hereunder to execute, acknowledge, and deliver a work- made- for -hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. Further, the Contractor, to the best of its ability and with corresponding manufacturer(s), if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and /or protection, letters patent, or any similar rights in any and all counties and in order to assign and cony -ey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Contractor's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publislL without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The Cit-v mai-, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the PAGE 34 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Contractor to any officer or employee of the City of Denton with a viers toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision- the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Contractor in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the Cite who is ins -olved in the development, evaluation- or decision - making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire (Attachment G). 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The Contractor's seivices shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not haw supewision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the sewices hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto: it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre- printed or similar terms on any the Contractor inwice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless other ise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party withun fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision - making authority PAGE 35 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option: the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the N- alidity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are obsewed by the City: New Year's Day (obsewed) MLK Day Memorial Dai- 4th of Juli- Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (obsewed) Christmas Day (obsewed) New Year's Day (obsewed) If a Legal Holiday falls on Saturday, it will be obserti -ed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be obserti -ed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pin, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indenmity, and confidentiality obligations of the parties, shall suivive the expiration or termination of the Contract. PAGE 36 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub- awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Seri-ices Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed. color, genetic testing, or national origin, be refused the benefits of, or be other ise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable, in addition to the specific federally funded requirements detailed in Attachment B. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued): or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An un manufactured end product mined or produced in the United States: or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract: but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled 'Buy American Act Certificate ". 57. RIGHT TO INFORMATION: The City of Denton reseii -es the right to use any and all information presented in any response to this solicitation, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. PAGE 37 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES 59. PREVAILING WAGE RATES: The awarded contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis -Bacon Wage Determination at http: / /Ai-N A .doL -.oN -/A hd /contracts /dbra.litm and at the Wage Determinations website rvww.wdoLgov for Denton County, Texas (WD- 2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery: (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public seivants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Workers' Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V. Subtitle D: 41 U.S.C. 701 ET SEQ.) and maintain a ding -free work environment: and the final rule, goverrunent -wide requirements for ding -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or obseivance of the requirements so affected for as long as such circumstances prevail and the Respondent continues to use commercially reasonable efforts to recommence performance or obseivance whenever and to whatever extent possible without delay. The Respondent shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non - performance or delay in performance. 65. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the fixture. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in anti- wai- intended to constitute a waiver by the City of Denton of anti- immunities from suit or from liabilit-v that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall PAGE 38 OF RFP # 5392 CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES retain all such records for a period of two (2) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. PAGE 39 OF RFP # 5392 RFP # 5392 EXHIBIT 2 Technical Specifications for Supply of Electric Utility Distribution Hardware, Connectors, Arms and Accessories A. PURPOSE The City of Denton is providing information that will allow prospective suppliers to prepare proposals to supply Electric Utility Distribution Hardware, Connectors, Arms and Accessories. The products will be received and distributed through a centralized distribution center located at 901B Texas Street, Denton, TX 76209. Orders will be placed as needed over the contract term. B. PROPOSALS Proposals shall be provided using the Exhibit 1, with supporting documentation as required. Additional information clarifying the supplier's product may be attached to the proposal. Pricing shall include all costs to deliver goods as specified in this specification. Any special fees or commissions, and all freight for delivery to the City of Denton Distribution Center and unloading costs must be included in the quoted price. Item pricing shall be mutually exclusive, thus the City of Denton reserves the right to choose the best valued item from different suppliers. C. QUALITY CONTROL The manufacturer shall be responsible for the quality control of the manufacturing processes to assure that all requirements of these specifications are met. However, the purchaser reserves the right to observe, to inspect and to require additional quality control investigations, either by its personnel or an independently employed quality control investigator, at any or all stages of fabrication at the manufacturer's facilities. Failure to adequately maintain fabrication and quality of fabrication until completion shall be grounds for cancellation of the order or any part thereof. Field failure or field repairs required due to quality control failures or manufacturing procedures shall be the responsibility of the manufacturer. D. WRITTEN WARRANTY and GUARANTEES Written guarantees shall include any limitations as to the nature of failure or time limitations. The guarantee shall begin upon receipt of the accepted units, not on the date of manufacture. Guarantees shall indicate whether or not it is made on a full replacement basis or a prorated basis and if prorated then what are the terms. Manufacturer /supplier guarantees that the goods furnished under this specification are of high quality and agrees to replace any goods found to be defective during inspection, installation, or service for a minimum period of 12 months after unit is delivered to Denton. All replacements by the manufacturer /supplier shall be free of charge F.O.B. at the same delivery point called for in the original order. Replacements must be handled in a professional and timely manner and in no case shall a replacement unit take longer than 60 days to arrive in Denton after first being submitted for replacement. RFP 5392 Exhibit 2 Offeror guarantees that all products quoted and furnished under this agreement will be accepted at any normally used United States approved repair and warranty shop should one be available for the manufacturer's product quoted. The City of Denton will not accept a manufacturer's product that was rejected or substandard and then sold to a broker for either resale or scrap that would not be fully warranted by the original manufacturer. The offeror must be an approved distributor by the manufacturer of these products, and is authorized to sell the products to the City of Denton. The offeror also guarantees that the City will be represented by the Manufacturer, should an issue arise, and that all manufacturers' warranties will be in effect for the life of the contract. E. SPECIAL DELIVERY REQUIREMENTS Delivery of goods shall be made within two (2) weeks of receipt of order. Suppliers should note exceptions to the expected delivery on Exhibit 1. F. ACCEPTABLE MANUFACTURERS The City will only accept proposals from the specific manufacturers and part numbers listed on each line item in Exhibit 1. The City understands that manufacturers may update part numbers periodically. The City will accept updated part numbers based upon the part number provided on Exhibit 1, if only the part number is updated. Proposals offering alternate products will not be considered and must go through the commodity approval process described below. The City has implemented a pre - approval process for substitution commodities and services. The commodity approval form can be obtained via email (karen.smith2cityofdenton.com). Supporting documentation or samples must be submitted for review by Purchasing, Engineering, field crews, and the manager of DME. Testing may be required and may take substantial time to review. Vendors are encouraged to submit forms and samples for consideration on the next solicitation for similar items. RFP 5392 Exhibit 2 Exhibit C CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES _- CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person Date Received who has a business relationship as defined by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. 2 / Check this box if you are filing an update to a previously flied quesdoruM�dtre. (The law requires that you file an updated completed questionnaire with thy' appropriate ,filing authority not later than the 7 °i business day after the date the originally filed questionnaire becomes incomplete or inaccurate.)^, i 3 Name of local government officer with whom filer has an �arralalr �aauprt or bu ��lncS, n�aat�rwn„ loll „ 4 .... Name o (Wictr This section, (item 3 including subparts A,'B C & L �lq must b completed for each offs r with whom the fileikliras an employment or other business relationship as defined by Section 176,00 (1il-a), drat } Gove rment Code. tl�,ach cltN ionai pages to this Form CIQ as necessary. A. Is the local government officer names; Inl�tl °wis octuo�' ftac ivIng or like[ to receive taxable income, other than investment income, from the filer of the questionnaire? Yes No B. Is the filer of the questionnaire receiving or likely to receive traxtabincome, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? E ] Yes No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? 1.. 1 Yes E::1 No D. Describe each affiliation or business relationship. '4..�........._ - - - - - -- ............ ..,,__ ......................... ...........1111.---- - - - - -- Signature of person doing business with the governmental entity Date PAGE 46 OF RFP # 5392 1:71iff-I -14 Ln W_ O N N W U U a 0 Z a Sn G a of OC O b W Z Z O U L OC D oc a x Z O H m D: N D U yO`C` V W J W LL O J a a Ln .° a a Ln V �i a N 01 M Ln CL oc EXHIBIT D RFP 5392 m O ° Q i v 1 O O O O O O O O O O O O O O O O O O O O O O d m m m m m m m m m m m m m m m m m m m m m m 'd d ° a O LL a Ln O Ln m to ry N Ln in rl� oo rl� to rn m m m rn m rn m m lz� O rl� N rnlz� rn zt N Lq oo rl� m 0 O Co H o O r, O x m �o rn zt N zt r in N Ln in N m vi o d V oo zt N m in N zt m oo Ln N N m to O in to N in N r, �o r, N m o0 a c-I c-I c-I c-I ci c-I i �, ri ri ri ri U c i *; ~ LL V, V, V, V, .--i O .--i m m N O -- V1 O O N O N O N O N O N O N O N O N N l0 ll1 O m W NM l0 Cl V1 N m W 0 n 0 O V <o co c-I to Ln -:t -:t zt 't 't -:t -:t -:t -:t Ln -:t -:t N m W N m O N Ln O. N C m zt O } Lu z N w O Y O ua G. •yVj N G/ z LL z z z z z z z z z z z z z z z z z ° m O 0 0 0 0 0° 0 0 0 0 0 0 0 0° 0 0 Ln 0 N Q N m to X O N Ln O Ln O O O O Ln 0 0 0 Ln ° 00 0 0 0 0 0 N N m� in Ln to x O zt o o o o o o o o o o o o o o o 0 LL O N in in in in in in in in in in in in m in in in in m< m o2S xt zt xt zt xt zt xt zt xt zt xt zt xt zt zt zt xt zt M a w > w > w > w > w > w > w > w > w > w > w > w > w > w > w > w > w > w > > w O W z z z z z z z z z z z z z z z z z z z W O Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q H O w 0 w w w w w w w w w w w w w w w w w w CC U (n Y LL Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y LL N 0 U W Z Z O D Y U O m 0 i o S LL Q LL Q Z Q a O d to O N'zt v, C / to Sk C O LL LL LL LL 2 2 Q w O Z 0 0 0 0 Q Q Q Q Q Q Q Q Q Q LL z U J m Z Q Q Q Q o N n O O o 0 0 io O O o O- o0 O O N m l0 00 � � � N N N m � Lf1 Lf1 l0 00 > LL W Z Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y Y 00 0o LJJma(g0 �zzzzzzzzzzzzzzzzz m - Cn UW J J J J J J J J J J J J J J J J J Q W W W W W W W W W W W W W W W W W W W W N LL LL LL } Cf (n LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL LL Q W W a 0 n V1 n Z 0 O 0 0 N 0 m 0 zt 0 to 0 00 0 O 0 0 zt 0 to 0 O 0 zt 0 to 0 00 0 N 0 to 0 O 0 N 0) 0 a o ° m m W I, m m m m m m m m m m m m m m m m m m N o Ln Ln oo Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln Ln V U N N i N N N N N N N N N N N N N N N N N N N N O w w w w w w w w w w w w w w w w w THT 7 � C C C Ln Ln m m Ln °O N L-1 to N m N O O O Q N N r, n co Lf1 m N N m N N Lf1 Lf1 N N N Lf1 M m Lf1 N 7 m cr W ±% m 0 zt n to N co m O-� N mzt in to N oo rn O-� N m 3 N m m m m m m m m m in m in m in m in m in m in m in m in m in m in m to m to m to m to m d z RFP 5392 EXHIBIT D November 19, 2013 Karen E. Smith, A.P.P Senior Buyer City of Denton Materials Management 901B Texas Street Denton, TX 76209 STUART T haw 'I;RB ELECT R11CAii DisIRTJBUT0111 7125 Belton Street Fort Worth, TX 76118 817 - 284 -0868 www.irby.com Subject: RFP -5392 SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES FOR THE CITY OF DENTON Karen, Thank you for the invitation to participate in the subject RFP. Our response is enclosed. Our response includes the following documents: Attachment C Attachment D Attachment E Attachment F Attachment G Attachment H Attachment I Attachment J Exhibit 1 Business Overview Questionnaire Forms Exception Form Not Applicable References Conflict of Interest Form Disadvantaged Business Utilization Sample Contract Documents Acknowledgment Pricing Sheet We look forward to your response, Sidi "`c re ly, cln' �P n r, ch McCathren District Sales Manager /TX Division of RFP 5392 EXHIBIT D EXECUTIVE SUMMARY The Stuart C. Irby Company, headquartered in Jackson, MS, operates 56 branch and distribution center locations covering 43 states, with sales nearing $900M for 2012. Irby is one of the largest electrical distributors in the United States with a proven track record of exemplary service in the Utilities Distribution arena worthy of the City of Denton's confidence within this initiative. The employees of Irby have been serving customers in four major market segments — industrial, contractor, commercial and utility —with innovative products and services since 1926. Entering the US in 1998, Sonepar USA has seen dramatic growth over the years due to strategic acquisitions and organic growth. Today, Sonepar USA has 15 companies operating over 260 branches throughout the United States, generating over $6.013 in sales revenue in 2011.Sonepar USA is a member of the Sonepar group, the world's largest privately -held electrical distributor. Worldwide, Sonepar employs 32,000 employees in 164 companies across 35 countries. Sonepar's worldwide sales exceeded $19B in fiscal 2011. Irby understands the critical nature of this blanket agreement. As one of the utility industry's leading suppliers, Irby is experienced with these types of initiatives, from the selections and establishment of specification compliant products from pre- approved manufacturer partners, to coordination of meeting ever changing product demand. Irby will use its alignment with the selected industry leading manufacturers and establish both price points and production /fulfillment schedules to meet the City's of Denton's projected demand. Our resource teams will be connected with these chosen manufacturers through a variety of communications media. Irby maintains a strong e- commerce presence with all manufacturers that are party to proposal, providing a close, integrated working relationship that is already in place allowing line of sight to material availability, costing, and other fulfillment conditions.lrby will be managing the fulfillment of material into its operations through manufacturer specific production planning programs aligned with the City of Denton and its participating member's level expectations and activity history. Based on the size, scale and time line of this initiative, Irby will secure capacity from manufacturers and manage inbound material flow against material outbound customer demand. Irby recognizes the need to have timely, accurate information available to our customers when and where it is required. Irby has established a variety of assessment and reporting tools designed to provide visibility to supply chain performance and trends with a particular relationship. Tools are presented in several formats, ranging from data assembled working reports to time - sensitive Extranet reporting. Information content can range from static time data collection to real time data collection that is refreshed on a scheduled basis. Commodity volatility is a major variable in mitigating pricing fluctuations. Irby believes that a detailed knowledge of historical and projected trends in commodities is a tremendous enabler to optimize the effectiveness of our procurement and strategic sourcing efforts. This potential factor will be a conscious point for Irby to track and follow throughout the life of this initiative. RFP 5392 EXHIBIT D CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES SOLICITATION CHECKLIST Checklist for RFP # 5392 Title: RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES Opening Date: 11/19/2013 at 2:00 PM Contractor Name and Address:, Contact: TX Taxpayer VIN#: Fax: Email vf% -4- 1. Submit one (1) original and two (2) WRITTEN copies of submittal (REQUIRED) a. Submit Written Proposal by courier, hand delivery, or mail b. Exhibit II-Excel Pricing Sheet, Review, complete, and return 2. Email Exhibit 1 in Excel format to e bids (o)citvofd e nton. com 3. Submittal Content (Meet Section 111) • Review all requirements • Ensure your firm meets all stated minimum requirements • Documentation included to support the evaluation criteria. • Company Information • Relevant Experience and Qualifications • Quality Assurance / Quality Control • Litigation History Statement „ • Addendum(s) Reviewed and return • Attachment A, Review • Attachment B, Not Applicable • Attachment C, Review, complete, and return • Attachment D, Review, complete, and return • Attachment E, Not Applicable • Attachment F, Review, complete, and return • Attachment G, Review, complete, and return • Attachment H, Review, complete, and return • *Attachment 1, Review Attachment J, Review, complete, and return PAGE 2 OF RFP # 5392 RFP 5392 EXHIBIT D ATTACHMENT C BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS 1. Contractor Name: Irby 2. Address (Principal Place of Business): Irby (Local) 7125 Belton Street Fort Worth, TX 76118 -6805 Phone: 817- 284 -0868 Fax: 817- 284 -7743 Irby (Corporate) 815 South President Street Jackson, MS 39201 Phone: 601 - 960 -7304 Toll Free: 866 - 687 -4729 Fax: 601- 960 -7221 3. Does your company have an established physical presence in the State of Texas, or the City of Denton? Yes, Irby has 4 branch locations in Texas: Ft. Worth, Austin, San Antonio, and Texarkana. 4. Tax Payer ID #: 16401790205 5. Email Address of Primary contact: Russell James jamesAirb. Chance Anderson canderson(&,,irby. com 6. Website Address: Irby.com 7. Telephone: 817-284-0868 8. Fax: 817-284-7743 9. Other Locations: RFP 5392 EXHIBIT D IRBY— Branch, Distribution Center and Project Services Locations , 1Z 10. Organization Class:.. Corporation 11. Date Established: 1926 12. Former Business Name: N/A 13. Date of Dissolution: 14. Subsidiary o£ Sonepar RFP 5392 EXHIBIT irby Sonepar USA Locations (January 2011) 15. Historically Underutilized Business: No 16. Principals and (}ffioore: OfficmroNiceP,nsidents Mike Wigton President Andy Waring Chief Operating Officer JohnHnn|gfort Chief Financial Officer GaryBodem Vice-President Human Resources and Organizational Development Kirk Hughes Vice-President Information Technology Jack May Vice-President Utility Business Development Eddie Moak Vice-President Sa|oo, Utility East Chad Cravens Vice-President Sa|oo, Utility North Joe Lenoir Vice-President Sa|os, Utility West Project Services Tim Park Vice-President ' Commercial and Contractor Sales Mike Leech Vice-President Industrial Sales Mike Richardson Vice-President ' Operations, C&| Brad Slocum Vice-President ' Operations, Utility Don Corley Vice-President - Utility Supply Chain Dave Armstrong Vice-President 'C&| Supply Chain RFPoaez EXHIBIT D 17. Key Personnel and Responsibilities: UNION/ Russell James inside sales Associate - Texas Chance Anderson Outside Sales Associate - Texas • r .:- - Mackey . —Texas i District Operations Manager .- - President .. Slocum - - •.- �. President 18. Number of Personnel by Discipline: Discipline Number of Staff # Licensed or Certified 19. Services Provided by Contractor: a. Please provide a detailed listing of all services that your company provides. b. Please detail your prior experience working on similar projects with Texas governmental entities. c. Please detail your similar services provided over the past two (2) years. d. Detail documented proof of at least three (3) projects in the past two (2) years. e. Please detail these services, including, the nature of the services provided, the scope of the activities, the organizations for which the services were provided, the dates of the projects, and the documented benefit to the governmental entity. N /A- This is for Services Provided 20. Has your company filed or been named in any litigation involving your company and the Owner on a contract within the last five years under your current company name or any other company name? If so provide details of the issues and resolution if available. Include lawsuits where Owner was involved. No 21. Please provide at least (3) three references (preferably municipalities) and contract amounts. Include project description, contact names, position, and organization name and telephone number for each reference listed. See attachment F. N /A- This is for Services Provided RFP 5392 EXHIBIT D 22. Have you ever defaulted on or failed to complete a contract under your current company name or any other company name? If so, where and why? Give name and telephone number of Owner. No, N /A- This is for Services Provided 23. Have you ever had a contract terminated by the Owner? If so, where and why? Give name and telephone number (s) of Owner (s). No, N /A- This is for Services Provided 24. Has your company implemented an Employee Health and Safety Program compliant with 29 CFR 1910 "General Industry Standards" and /or 29 CFR 1926 "General Construction Standards" as they apply to your Company's customary activities? i t /t p Nr ..o l w /plS /�w�gl���w ,?c N)���:)�+�aasrch sear im lc��,i ?1� �)o A); S EA_N VNR DS &11�1_.. toc level:::: I &p -- keyvalu 1,.926 N /A- This is for Services Provided 25. Resident/Non- Resident Bidder Determination: Texas Government Code Section 2252.002: Non - resident bidders. Texas law prohibits cities and other governmental units from awarding contracts to a non - resident firm unless the amount of such a bid is lower than the lowest bid by a Texas resident by the amount the Texas resident would be required to underbid in the non - resident bidders' state. In order to make this determination, please provide the name, address and phone number of- a. Proposing firms principle place of business: Irby (Local) 7125 Belton Street Fort Worth, TX 76118 -6805 Phone: 817- 284 -0868 Fax: 817- 284 -7743 b. Company's majority owner principle place of business: Irby (Corporate) 815 South President Street Jackson, MS 39201 Phone: 601 - 960 -7304 Toll Free: 866 - 687 -4729 Fax: 601 - 960 -7221 c. Ultimate Parent Company's principle place of business: Sonepar USA 510 Walnut St #400 Philadelphia, PA 19106 (215) 399 -5900 RFP 5392 EXHIBIT D CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES ATTACHMENT D PROPOSAL EXCEPTIONS Any exceptions taken to this RFP must be listed on the lines below. If there are no exceptions, please sign where indicated at the bottom of the page. Item # Description Please refer to DME /Irby contract "Denton RFP 5066 ". Irby references this active contract as a mutually negotiated and agreed set of terms and conditions upon which RFP 5392 may be based. �s - ----- ipally Date No Exceptions taken to this RFP. Signature Company Date PAGE 44 OF RFP # 5392 RFP 5392 EXHIBIT D CITY OF DENTON RFP FOR OF . IC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, D ACCESSORIES Please list three (3) Government references, other than the City of Denton, who can verify the quality of service your company provides. The City prefers customers of similar size and scope of work to this proposal. REFERENCE ONE � w REFERENCE TWO REFERENCE THREE PAGE 45 OF RFP # 5392 RFP 5392 EXHIBIT D CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES ATTACHMENT H DISADVANTAGED BUSINESS UTILIZATION The City of Denton will ensure that purchases of equipment, materials, supplies, and /or services comply with Texas Local Government Code 252.0215, in regards to competitive requirements in relation to Disadvantaged Business Enterprises (DBE). The City will ensure that all procurement opportunities are cost effective, and contributable to the competitiveness of the City, and its customers. All Procurement activities will be conducted in an open and fair manner with equal opportunity provided for all qualified parties. The City of Denton will provide equal contracting opportunities as provided by State and Federal law to small business enterprises, Historically Underutilized Businesses, and Disadvantaged Business Enterprises. The City of Denton encourages all awarded Contractors to seek qualification as a DBE and /or utilize DBE's as sub- contractors, where feasible, to meet the overall intent of the legislation. Disadvantaged Business Enterprises (DBE): are encouraged to participate in the City of Denton's procurement process. The Purchasing Department will provide additional clarification of specifications, assistance with Proposal Forms, and further explanation of procurement procedures to those DBEs who request it. Representatives (k,)irI, DBE companies should identify themselves as such and submit a copy of the Certification. `I°lie(( "ity recognizes the certifications of the State of Texas Building and Procurement sC "onirrirSSi(.') 1 111Al, "P,rogram. All companies seeking information concerning DBE certification rre urged t(i col)44i \ State of Texas HUB Program — TPA (Division " PO Box 13047, Austin, TX 787113' 147 ( ) ( ) .1._e . wtc txrllrr,.a rare 1���r. 512 463 -5872 or 888 863 -5881 t� 1�A /%w urrd� Instructions: If your company is a4cady certihed, atyi�Acli a copy of your certification to this form and return with the submission. If your compa v is not already certified, and could be considered as meeting certification requirements, I lea;se use the web link to obtain such. If you are submitting a response and plan to utilize DBE's, then use the form below to identify the business and include the business HUB certification. COMPANY REPRESEN' ADDRESS: CITY, STAI TELEPHONE NO, Indicate all that apply: RFP 5392 FAX NO, Minority -Owned Business Enterprise Women -Owned Business Enterprise Disadvantaged Business Enterprise PAGE 47 OF RFP # 5392 EXHIBIT D CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTION HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES ATTACHMENT J ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF DENTON The undersigned agrees this RFP becomes the property of the City of Denton after the official opening. The undersigned affirms he has familiarized himself with the local conditions under which the work is to be performed; satisfied himself of the conditions of delivery, handling and storage of equipment and all other matters that may be incidental to the work, before submitting a proposal. The undersigned agrees, if this proposal is accepted, to furnish any and all items /services upon which prices are offered, at the price(s) and upon the terms and conditions contained in the Specifications. The period for acceptance of this Proposal will be ninety (90) calendar days unless a different period is noted. The undersigned affirms that they are duly authorized to execute this contract, that this RFP has not been prepared in collusion with any other Bidder, nor any employee of the City of Denton, and that the contents of this RFP have not been communicated to any other proposer or to any employee of the City of Denton prior to the official opening of this bid. Respondent hereby assigns to the City any and all claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 USCA Section I et sea., and which arise under the antitrust laws of the State of Texas, Tex. Bus. & Com. Code, Section 15.01, et se . The undersigned affirms that they have read and do understand the specifications and any attachments contained in this RFP package. The undersigned agrees that the RFP posted on the website are the official specifications and shall not alter the electronic copy of the specifications and /or pricing sheet (Exhibit 1), without clearly identifying changes. The undersigned understands they will be responsible for monitoring the City of Denton Purchasing Website at: http:// www.cityofdenton.com/index.aspx ?page =397 to ensure they have downloaded and signed all addendum(s) required for submission with their proposal. Should a conflict arise between the PO, supplier terms, or contract; the terms and conditions set forth in this RFP shall prevail. I certify that I have made no willful misrepresentations in this Proposal Submission, nor have I withheld information in my statements and answers to questions. I am aware that the information given by me in this proposal will be investigated, with my full permission, and that any misrepresentations or omissions may cause my proposal to be rejected. NAME AND ADDRESS OF COMPANY ... Tel. No. ... - -- Emailrl PAGE 50 OF RFP # 5392 RFP 5392 AI. I'll ORIZl+ ES IT' ", TIVE: Signature Date' "µ� 3 Name Title.......;; ................ ...... Fax No.._ �_...... �_�� ................ CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND HD SUPPLY POWER SOLUTIONS (RFP # 5392) THIS CONTRACT is made and entered into this _ _ day of A.D. 20 , by and between HD Power Solutions a corporation, whose address is 2800 Ouail Run, Ste100, Corinth TX 76208, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule 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 # 5392 Supply of thle office of PurchasingrAged incorporated herein for all purpo a copy of which is s on file at ccLssoi es ses. The Contract consists of this written agreement and the following items which are attached hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A") (b) City of Denton's RFP 5392 (on file at the office of the Purchasing Agent) (c) Standard Terms and Conditions (Exhibit "B ") (d) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C"). (e) Supplier's Proposal. (Exhibit "D "); These documents make 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 5392 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY WN APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY RFP 5392 SUPPLIER PHONE NUMBER --Z"- - ydv - FAX NUMBER CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: Exhibit A Special Terms and Conditions The Ouantities indicated on Exhibit D are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the price. Individual purchase orders will be issued on an as needed basis. Product Chances During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasing _@cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. Contract Terms The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this contract for an additional two (2) 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. Price Escalation and De- escalation Prices quoted for the commodities must be firm for a period of one year from date of contract award. Any request for price adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI)* for other electrical equipment manufacturing (PCU33593359). The price will be increased or decreased based upon the annual percentage change in the PPI. The maximum escalation will not exceed +/- 8% for any individual year. The escalation will be determined annually at the renewal date. Should the PPI change exceed a minimum threshold value of + / -1 %, then the stated eligible bid prices shall be adjusted in accordance with the PPI change not to exceed the 8% limit per year. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for * Producer Price Index /PPI is defined by the U.S. Department of Labor: The Producer Price Index (PPI) Is a family of indexes that measures the average change over time in selling prices received by domestic producers of goods and services. PPI measures price change from the perspective of the seller. This contrasts with other measures, such as the Consumer Price Index (CPI), that measure price change from the purchaser's perspective. Sellers' and purchasers' prices may differ due to government subsidies, sales and excise taxes, and distribution costs. RFP 5392 consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. Upon receipt of such request, the City reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre -price increase prices must be honored on orders dated up to the official date of the City of Denton approval and /or cancellation. The request can be sent by e -mail to: purchasing@cityofdenton.con► Or mail to: Or call: City of Denton City of Denton Purchasing Attn: Purchasing Manager (940) 349 -7100 RFP # 5392 901B Texas Street Denton, Texas 76209 The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. Total Contract Amount The contract total shall not exceed $131,000. Pricing shall be per Exhibit D attached. Delivery Lead Time Product shall be delivered to the City per the days noted in Exhibit D after receipt of the order. RFP 5392 Exhibit B City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's solicitation are applicable to Contracts/Purchase Orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal response, Invoice or Statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the Contract/Purchase Order these written provisions will take precedence. By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall apply only to a Solicitation to purchase Services to be performed principally at the City's premises or on public rights -of -way. 1. SUPPLIER'S OBLIGATIONS. The Supplier shall fully and timely provide all deliverables described in the Solicitation and in the Supplier's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Supplier's name and address, (b) the City'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 4 boxes, and (d) the number of the container bearing the packing list. The Supplier shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non - conforming deliverables. If the City has the right to inspect the Supplier's, or the Supplier's Subcontractor's, facilities, or the deliverables at the Supplier's, or the Supplier's Subcontractor's, premises, the Supplier shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. RFP 5392 & NO REPLACE ENT OF D EFECTIVE'rENDEW 1,,",t�c"yteritteroi,delivei- with all l"ll-ovisions of tile y of defiverables must III fly comply Contract as to tinie of delivery, quality, and quantity, Any non-colliplying! tender shall c011stittitc I breach and tile Supplier shall not have the right to substitute I conl'orming ic"Ider; provided, where the time for Pertbrimince has not yet "Pircd, the Supplier may not4 111C City Or the intention tao cure and may then make it coillornlilig lender within the time allotled in the contract, 9 PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to the sites where the Suf)Plicr is 10 Peribriii (fie, services as required in order f'c')r tllc Supplier to I)erfiorril the, services in a timely atiod ell'icic"t 11181111cr, in accordance with and subject to the applicable security laws, rules, and regulations. 'I'lle Supplier acknowledges that it his sa(islied itself as I'(') tile nature of' the City "S service "c(lUirelnents and spceilicatiolls, the location and esseliti,11 chztr,,WtcriMics 01,tlie work sites, dle (luality and (, filcilities necessar lklataiiY 01' nlatcl-i<lls, c(itlipillent, labor antl y to perrotill tile Services, and any anther condition or state of' J;act which could in ,illy way affb,a perl'orma lice of tile Supplier's obligations Under the contract, I'lle Supplier hereby releases and holds the (:,k y � if the actual site or Service harnllc�" froill and against any liability or claill, lol� (l,,lnIagcS or any kind ("lr nature y conditions difIler ii•orn expected conditions. 10. WORKFORCE A. The SLIppliel, shall croalolt;ry ()lily orderly and competent workers, skilled in the performance of the services which they will perlimll under the contract. 11, The Supplier, its elilployccs, stilicontnictong, and subcontractor's employees may not while engaged in p I al-ticillating or responding to asolicitation ()I- while in the course and scope of delivering goods or services under a 0(Y 01 "Denton contract or on the City's property . i. use or possess a Firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; Or iL use or possess alcoholic or other intoxicating IlCVcl,,,Igcs, illegal drugs or controlled substances, nor may such workers be jntoxjckntc(,1, or ultdul� Ulc inill1clIcc of-lico , hol or drugs, oil (lie epl'eSenfativc notifies tile Supplier that any worker is incompetent, disorderly or C. If the City 01, the City's f Job. disobedient, has knowingly ()r IT10catedly violated safety regttlations, has possessed any firearms, or has possessed or was under tile ill IILIC11CC oI',JlCoJJ()l ()I, drugs oil tile J(q), tile Supplier, shall immediately remove such worker from Contract services, and may not employ such worker again till Colltrad services without the City's prior written consent, Immigration: The Supplier represents and warrants that it shall c()tllply with Elie requirenicills of, the hllnligrath)jl Reform and Control Act of 1986 and 199() rcgarLlillg cillilloyllient verilication,,ind retortion 0i'veritleation (brtlis f6r any individuals hired on or after November 6, 1986, who will perklrIll lairs 1,, 1996. -ant Act (it' 1996 (NIRMA) enacted On ScPtelliber 30, the Illegal Immigration Reform and hunfl9l 1b0` o` services Under (lie Contract anti I E COMJ1LIAN(,E WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier, it's SUhc0ntl','1el0r8, and their respective ernployces, sh,111 co health, safety, �Ijld envirourn "'Ply' rIIIY with ,III 311plicable federal, state, and local ental laws, ordinances, 1�tjlcs and regulations in the PCH"Ormance of the services, including but not fitllilecj to those promulgated by the (,,lily and by (lie, 0cCUPaUOMll Salety and Health Adminiql'ation (OSI IA). In case ()r coIlflict, (Ile ,lost ""less from and against �111 clain1s, illdelllnif�f mld hold the City hal stf-h1gent safety rcqui renien t slu H govern, The Supplier shall Miallics and I it'hilitY orevery kind arising fi,-orn tile br deMan(k, suits, actions, judgments, fines, cach olthc Sullillicr's Obligations under this paragraph. E"vil'O"Me"tAl Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 of seq.) and the Federal Water Pollution ('ontrol Act, as amended, (33 U.S.C. § 1251 of seq.). 12. INVOICES: A.The Supp.ahcr sloarll submit separate invoices in duplicate on each purchase order or purchase release after each cjVlivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be scat for each Shipment or delivery made. 11. Proper Invoices rijust include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the Point of contact for the Department. Invoices shall be itemized and transportation RFP 5392 charges, ifany, shall be listed separately. A copy ofthe bill oflading and the freight waybill, when appflenble, shall be attached to the invoice. The Supplier's nanie, reniihanca, address and, if` applicable, the tax identification n number on flic invoice must exactly match the information, in the Vendor's registration with the City. Unless otherwise instructed in writing, the City nnay rely on the rcrinittarnce address spe6fied on the Supplier's invoice. C. Invoices for labor shall include a copy of all time - sheets with trade labor mate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours ,sit thee aapl .iropriarte rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Supplier shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Supplier to such extent as may be necessary on account of: i. delivery of defective or non - conforming deliverables by the Supplier; ii. third party claims, which are not eovered by the insurance which the Supplier is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment; iw, dannnage to the property of the City or the City's agents, employees or suppliers, which is not covered by inr,nrranee required to be provided by the Supplier; V. reasonable evidence that the Supplier's obligations will not be completed within the time specified in [lie Contrac(, and that the unpaid balance would not be adequate to cover actual or Hquidaated damages tier the anticipated delay„ Vi. Whim of, the Supplier to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Supplier to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding, F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Supplier agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuaiticnra of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely li°om funds Appropriated and available for this contract. The absence of Appropriated or anther lawfully �nvanl blc kinds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Supplier. The City shall provide the Supplier written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Supplier, unless otherwise stated in the contract terms. 15. FINAL PAYMENT AND CLOSE -OUT: RFP 5392 A. If a DBE /MBE /WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier is required to submit a Contract Close -Out MBE /WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Supplier is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: L a waiver of all claims by the City atgainst the Supplier, awxccpt claims (1) which have, been previously asser tcd in waiting and not yet settled, (7) arising 11oaaa defective wank appearing after final inspection, (3) arising from frilurc of the Supplier to comply with the Contract or tlae terans ofany warranty specified hercin„ (4) arising froin the Supplier's continuing obligations under Mae Contract, including brat ntat limited to indemnity and warranty obligations, or (5) arising under the City's right: to audit; and ii, as waiver of aall claims by the Supplier aagaaiaast the City other than those previously assorted in writing and not yet settled. Ili. SPECIAL TOOLS & "'IES'r I +,(),I11PIVIENT': jr the price stated on the Offer includes the cost of any special tooling or special test ealtrilaaraerat lubricated or rea�loirc ] by the Supplier for the purpose of filling this order, such special ltrt'rling equipment anti auay paroccws sheets related thereto shall become the property of the City and shall be identified by the Supplier as such. 17. RIGHT TO AUDIT: A The City shall have the right to audit and rnalw copies of the books, records and computations pertaining to the Contr,rcl. The Supplier shall retain such books, records, documents and other evidence pertaining to the Contract period and five yc,ars thareatter, excerpt iraan audit is in progress or audit findings are yet unresolved, in which case records shall he kept until call audit tasks arc completed and resolved. These books, records, documents and other evidence shall be available, wvithin ten (10) business days of written request. Further, the Supplier shall also require all Subcontractors„ material sulaplicrs, araci oilier payc.es to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be madc available within ar 50 mile radians of the C"i(y of Denton. The cost of the audit will be borne by the City unless the audit reveals taaa overpayment of 1% or greater. li`an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs„ aaaust be borne by the Supplier which must be payable within five (5) business days ail receipt ol'aan invor,ce, B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion„ grounds liar termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence", aas used above„ shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If them Supplier identified Subcontractors In a 17BV /Mf3l ; /WBl1 agreed to Phan, the Suppolicr shall comply with all raquiremen'ts approved by the City, The Supplicr shall not inifiarlly emp loy aany Sul)cearatraaetoa° «scaept as parcrviafcd ir�a the Supplie'r's flair. `I'lle Supplier shall not substitute any Subcontractor identified in the Plan, unless tile strbstitrate. has been accepted by the City in writing. No acceptance by the City oaf° array Subcontractor Shall constitute as waiver of any rights or remedies ail' "the City with respect to deflective deliverables provided by as Subcontractor. II'a Plan has been approved, the Supplier is tadditionaally required to strbmil a rnonthIy Subcontract Awards and l.xpenditaares 11elaor°t to (tic Procurement Manager, no later than the tenth calendar day of caach naontla. B. Work performed for the Supplier by a Subcontractor shall be pursuant to a written contract between the Supplier and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: L require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; h. prohibit the Subcontractor from Harr the.r sarbe.ontracting any portion of the Contract without the prior written consent of" the City and [lie Supplier. The C;. "ity raaay r•egtrirc, as a condition to such further subcontracting, that the Subcontractor post a payment bond in lirrm„ substance and aanaount acceptable to the City; iii.. require Subcontractors to submit all involves and applications for payments, including any claims for additional payments, dxarruagcs ur otherwise, to tlae Supplier in sufficient time to enable the Supplier to include same with its invoice or al .)I�hcatie�an lbr payment to the City in accordance with the terms of the Contract; iv, require that all Sancccrntractors obi ain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Supplier, with the City being a named insured as its interest shall appear; and v, require that the Subcontractor indemnify and hold the City harmless to the same extent as the Supplier is required to indemnify the City. RFP 5392 C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Supplier is responsible for the Supplier's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY-PRICE: A. The Supplier warrants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. B. The Supplier certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, or otherwise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Supplier shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLE& The Supplier warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Supplier, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either repair the non- conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Supplier is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Supplier, and purchase conforming deliverables from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Supplier warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Supplier is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Supplier, and purchase conforming services from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non - conforming deliverables, the City prefers to accept it, the City may do so. The Supplier shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Supplier is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Supplier's Offer, or in any report or deliverable required to be submitted by the Supplier to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Supplier, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Supplier's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Supplier shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Supplier, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required to be submitted by the Supplier to the City shall be grounds for the termination of the Contract for cause by the City and 849MM may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Supplier if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Supplier shall negotiate an equitable adjustment for costs incurred by the Supplier in the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Supplier from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Supplier, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Supplier, the Supplier's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non - conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE SUPPLIER, OR THE SUPPLIER'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE SUPPLIER'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE SUPPLIER (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in the solicitation document. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements. i. The Supplier shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Supplier shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Supplier must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Supplier shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Supplier hereunder and shall not be construed to be a limitation of liability on the part of the Supplier. iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the RFP 5392 subcontractors commencing work on the project. v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Supplier, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Supplier. xi. The Supplier shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Supplier shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. All deductibles or self- insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Supplier. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under or concerns the Contract, or which could have a material adverse affect on the Supplier's ability to perform thereunder, the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Supplier. Such notice to the City 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 whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Supplier shall be sent to the address specified in the Supplier's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. r f 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the Supplier to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code, 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants to the City that: (i) the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Supplier in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Supplier does not know of any valid basis for any such claims. The Supplier shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Supplier's breach of any of Supplier's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co- counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Supplier. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Supplier may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know -how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information "). Supplier acknowledges and agrees that the Confidential Information is the valuable property of the City and /or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and /or its licensors. The Supplier (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Supplier promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Supplier agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Supplier agrees that upon their creation, such deliverables shall be considered as work made - for -hire by the Supplier for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made - for -hire, the Supplier hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- for -hire, the Supplier agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work - made- for -hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. RFP 5392 C. Additional Assignments. The Supplier further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and /or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Supplier's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Supplier agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Supplier shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Supplier, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Supplier or any agent or representative of the Supplier to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract, In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Supplier in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision - making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Supplier shall render the Contract voidable by the City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B). 44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The Supplier's services shall be those of an independent supplier. The Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City. Any attempted assignment or delegation by the Supplier shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it I�i�1.�CLyJ being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Supplier or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Supplier invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision - making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Supplier agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken 14,110 7��y] provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable, in addition to the specific federally funded requirements. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Supplier, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or M'li7Gi'7►a (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Supplier shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate ". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this solicitation, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded supplier or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the supplier. 59. PREVAILING WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. littp://www.access.P-DO.izov/davisbacon/tx.htmi 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Supplier must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Supplier shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Supplier is responsible for both federal and State unemployment insurance coverage and standard Worker's Compensation insurance coverage. Supplier shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Supplier or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Supplier's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug - free work environment; and the final rule, government -wide requirements for drug -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the supplier shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Supplier and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any 11;AN17tiyl performance pursuant to the Contract. The Supplier shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE AJEURE: The City of Denton, any Customer, and the Supplier shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Supplier shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non - performance or delay in performance. 65. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Supplier shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Supplier shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period 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 governmental entity that has authority to review records due to federal funds being spent under the Contract. EXHIBIT C CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doinq business with local governmental entity ...... ...... . This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental Received entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor, Name of person who has a business relationship with local governmental entity.. 2 E] Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7tt' business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? I ... Yes El No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? ED Yes [,� No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes E] No D. Describe each affiliation or business relationship. ... ..... .N......, Signature of person doing business with the Dat_..._- governmental to enft RFP 5392 (6 W_ 0 LLJ U z 0 z z 0 U 14� z 0 II— M 0 U —J! LU LL 0 (U Ln 13. 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E OO O 0 0 0 0 0 0 0 Z z N N w N r, N m N 0 117 " 'cl, 't 'T Irl " r-1 m H cn rq m rj r, 0 0 N 0 -%1' m lz:r cn �D -t m 0 Ln m N Ln m It Ln m w Ln m w m m m m m 0 0 Ln 0 0 Lf) 0 0 Ln 0 N r, -4 r, -4 " -4 r, 1, r-, 4 r, 4 r, I ,T r-, r co Ln C) Ln 0) Ln 0 Ln m r� r, r" rl r, " P., r- t, rl r, r, I, 0 r, 00 0 cc Ln co 0 00 m co Ln co m co Ln 00 0 00 0 co Ln 00 o 00 in co r, co r, co r-, 00 r' 00 00 ill 00 Irl Go I'l co r, 00 r, 00 r, 00 r, 00 r- 00 rlJ r�4 rN rq r-4 r4 r4, r4 r4 r-J r4 rl4 N rj N r1i N " r4 r14 C�4 C-4 r4 0 < Q < < < < < < Q < < < < < -CL -a. Q Q -k Q < < < < < . ......... . r C:) C4 Ln m 0) Ln ul 0 0 ul Ln Ln w Ln -I c Ln Ln Ln Lfi Ln Ln Ln Ln r, u) w L r M LJ Cf H m N M CN . . . . . .. . ....... E Ln Ch w 0) rl 0) w a) m m 0 0 N 0 N 0 m 0 a 0 Ln 0 w 0 r® 0 00 0 m 0 0 r- r-4 H N 1-1 m 14 IZT H 11) H w I'l 1-4 w r-f m •-i 0 " N " N N N m m m m m m m m m m m m m m m m m m m m z RFP 5392 N t — 0 r- - 2 2 r_ 0 , 0 a 0 0 0 m 0 'La CF) a) M 0) C) a) a) 0) a) 0) C) M 0 Lf) D Ln M LL 0 Ln V u H r-4 m Q) Ln F- CL J 00 a) J J J < < Ln N z 0 z 0 z 0 m LL < 0 Z Z Om l O 0 0 0 m 3, Ln 0 0 U) 00 N r, m x LQ 1p 1p li q N oq li . . . . . H li Lq " M N F- lL Ln Ln 0 ,1 r4 M r-, 0 N N M a) M M W M rn -I W kD W u >- 2 cy, w " m H 0 rn r, Lr� rq m 00 r4 m m w Ln m Lo w Ln w Ln LO -,t w m w m m Lr w to I-i w m w 0 Ln W u ocl� W LIS cooCOCO 0 Ln > ro,4 0 m 0:10 ZT Ln Ln w 0 w 0 N --I H U U Tt u- 0 0 u u u u Z z z z z u u u N r4 r4 N O S rq: N Cq N r4 a a a 0� 06 a oc: w 0 a 0 w _j O O 2 O S 2 D 2 C14 N V) (A 0 co ca co Ln m m m m V) Ln 11 V) 0 ul (D — — Iq V) V) wul V) Ld Ln 2 Ln La Ln La Ln L's o ,I v) a Ln La (n LL Ln U, LL Ln V) cr U u < CL U) =) LL :D D LL D k� =) n B4 D --) L" 0 0 Z) n Z) LL LL --- =) - —.— - 0 Lr, w m m m m m w m m m m m m 0 V Lq O� 0 M 0 rq Li) 0 0 0 E 0 Iq Iq ll� N �q 1p 1p 1p Iq lb H H H 0'.O CIJ 'IT r, M m " N w w 0 Ln N LO w m r- w w w w w 6 w wlw Ln m m w Ln m m m m m Ln m m Ln m m Ln m m Ln m m W m m W W m m m m 0 , , co Ln ILD W 1-4 �w H r-i H r-I H H T-1 Iq 1-1 H Ln w Ln w Ln m Ln w Ln w Ln in w w rl rl N N -A H li 11 H -1 1-1 1-4 H 4 1-1 rll r1l C N rll I < W < W�w < d w < w < w < w < w < w < w < W Q Ui < w < w < w < w < w < < w w N 2 2 r_ 0 X U u < 'La Q. 0 Lf) D Ln M LL 0 Ln V u H r-4 u Ln F- CL J 00 a) J J J < < Ln N z 0 z 0 z 0 m z 0 Z Z m co 0 Ln 0 0 U) 00 N U z Ln J W = U 4 m N < O o 0 u Z o z ID V u u A Q} u >- cy, LO to W W 0 N W �l W H W -I Lo �l W 0 z p w w > w U w m w 0 Ln W u ocl� W LIS cooCOCO 0 Ln > ro,4 0 m 0:10 ZT Ln Ln w 0 w 0 N --I H U U Tt u- 0 0 u u u u Z z z z z u u u N r4 r4 N O S rq: N Cq N r4 a a a 0� 06 a oc: w 0 a 0 w _j O O 2 O S 2 D 2 C14 N V) (A 0 co ca co Ln m m m m V) Ln 11 V) 0 ul (D — — Iq V) V) wul V) Ld Ln 2 Ln N W = C d 00 0 U) C Ln cr E 1-4 N m V m lo h C'4 " N N N N N N m m M M m m m m Z RFP 5392 mEmommummmuffic momollimmmmmmml 2 U < Lf) Q 0 Ln V r-4 u CL J 00 < < Of Qq W F- 'A C" U z z Ln J W = U O o 0 u Z o z ID I k'D N, N, - O h o Ln m 0 z p w w w w w w w 0 Ln W u ocl� W LIS z W 0 Ln No ro,4 0 m 0:10 ZT Ln Ln w 0 w 0 N --I H U U u- 0 0 u u u u u u u u u u u u F- O S S S 06 106 LS a a a 0� 06 a a a 0 a 0 N C14 N V) (A 0 Ul V) Ln Ln V) Ln V� V� �11 (D ul (D . (D . 0 . 0 LU .�s LO) wul V) Ld Ln 2 Ln La Ln La Ln L's o ,I v) a Ln La (n LL Ln U, LL Ln V) cr U u < CL U) =) LL :D D LL D k� =) n B4 D --) L" 0 0 Z) n Z) LL LL --- =) - —.— - U M A w 0 0 0 tn 0 LL 0 0 N 0 0 M 0 0 0 0 0 0 E 0 0 0 0 N 0 0 W u 10 0 0 H H H N CIJ 'IT W M 0 " N 0 m r, 0 Ln N 0 Ln r, w m r- w m r,-'r- w m w Ln N N It w 06 M m m m m m Ln m m 0 m m Ln m m m m m Ln m m Ln m m Ln m m Ln m m W m m W W m m m m 0 , , co I "0 , C', 1�1 w w , w I Li) w , w Ln w L, w Ln w Ln w Ln w Ln w Ln w Ln m Ln w Ln w Ln in w w rl rl N N N U) N rli N r4 C-4 C-4 r4 rll rll r1l N N rll < W < W�w < d w < w < w < w < w < w < w < W Q Ui < w < w < w < w < w < < w w N W = C d 00 0 U) C Ln cr E 1-4 N m V m lo h C'4 " N N N N N N m m M M m m m m Z RFP 5392 mEmommummmuffic momollimmmmmmml EXHIBIT D r i DISTRIBUTION Request for Proposals (RFP) # 5392 SUPPLY OF ELECTRIC UTILITY O ARMS, MIMEMM 2800 Quail Run 1 10-T(' Corinth, TX 76208 1 miamwommom VIRMINJU RFP 5392 To Whom It may Concern, We at HD Supply fully understand the requested services, important issues, and city requirements that the City of Denton has put forward, and we feel that we can handle any Issues that may arise in the coming future in dealing with this RFP. Thankyou irm� ARTMRMXCX BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS 1. Contractor Name: HD Supply Power Solutions 2. Address (Principal Place of Business): 2800 Quail Run, Ste. 100, Corinth, Texas 3. Does your company have an established physical presence in the State of Texas, or the City of Denton? Yes 4. Tax Payer ID #: 26- 0100651 5. Email Address of Primary contact: Bran dyn.MeNeal a hdsupply.corn 6. Website Address: HDSupplyPowerSolutions.com 7. Telephone: 940.270.7235 8. Fax: 855.469.2528 9. Other Locations: Nationwide 10. Organization Class: Partnership 11. Date Established: 50+ Years 12. Former Business Name: Hughes Supply 13. Date of Dissolution: N/A 14. Subsidiary of: HD Supply 15. Historically Underutilized Business: No 16, Principals and Officers: Rick McClure Chief Executive Officer Steve Margolius President Brian C.rutchfiekl Vice President & Chief Financial Officer Darla Lentz Vice President — Information Technology Warwick Johnston Vice President Sales & Business Development Tim Mills Vi � __....w � _ �ce President— Sales, North Region John Tisera Vice President — Sales, East Region John Mark Vice .President — Sales, South Region 1p(a Ja ksoti,, I)irector of Credit &wC Collections & Accounts Receivable Shelley Pavero Director of Accounts Payable 17, Key Personnel and Responsibilities:. Jason Irons — VP Public Power South Region Dan Brown — Regional Sales Manager Jason Leake — Outside Sales Rep Brandyn McNeal — Inside Sales Rep 18. Number of Personnel by Discipline: Discipline Number of Staff # Licensed or Certified Operations 15 Sales 10 19, Services Provided by Contractor: a. Please provide a detailed listing of all services that your company provides. i. Distribution, Kitting and Consulting b. Please detail your prior experience working on similar projects with Texas governmental entities. i. Semi - annual and annual bids with multiple municipalities and ra a ate° tl, rw�a tl a ��rc Ilr�atrt the Ma k of exaso over 11aµ Jarm 1241.` rw� °s �Id�iirrg back to the establishment of Temple, Inc.). Active participant in all annual hardware, transformer aaral automation bids for the followina entities: City of Garland, City of Greenville, City Public Service (San Antonio). and City of Lubbock. Coo nrative engragement includes Pederrrarkcs F'Ie :t.rie C( i 1•- hiy I +ledrit, tr ia « l sa is area) Ccntr•aI Texas F,Icctric. Favelte Electric. f .iylor Electric (Abilci..___.__.._.W.d .••__•_ ..._— _..�••�..�. Cooke County Electric, Lamar County Electric, et al. c. Please detail your similar services provided over the past two (2) years. i. Integrated Supply for all materials: CoSery Electric, Lamar County and Tri- County Electric ii. Annual bid blankets: CPS (San Antonio), City of Lubbock, Pedernales Electric, Central Texas Electric. d. Detail documented proof of at least three (3) projects in the past two (2) years. i. See Above e. Please detail these services, including, the nature of the services provided, the scope of the activities, the organizations for which the services were provided, the dates of the projects, and the documented benefit to the governmental entity. i. See Above 20. Has your company filed or been named in any litigation involving your company and the Owner on a contract within the last five years under your current company name or any other company name? If so provide details of the issues and resolution if available. Include lawsuits where Owner was involved. EXHIBIT D a. No 21. Please provide at least (3) three references (preferably municipalities) and contract amounts. Include project description, contact names, position, and organization name and telephone number for each reference listed. See attachment F. 22. Have you ever defaulted on or failed to complete a contract under your current company name or any other company name? If so, where and why? Give name and telephone number of Owner. a. No 23, Have you ever had a contract terminated by the Owner? If so, where and why? Give name and telephone number (s) of Owner (s). a. No 24. Has your company implemented an Employee Health and Safety Program compliant with 29 CFR 1910 "General Industry Standards" and/or 29 CFR 1926 "General Construction Standards" as they apply to your Company's customary activities? a. Yes RFP 5392 EXHIBIT D Smith, Karen E. From: Mcneal, Brandyn H [HDS] [Brandyn.McNeal @hdsupply.com] Sent: Monday, December 02, 2013 11:00 AM To: Smith, Karen E. Subject: RE: RFP 5392 - Electric Hardware Thanks Karen. You're a life saver. Resident /Non - Resident Bidder Determination: Texas Government Code Section 2252.002: Non - resident bidders. Texas law prohibits cities and other governmental units from awarding contracts to a non - resident firm unless the amount of such a bid is lower than the lowest bid by a Texas resident by the amount the Texas resident would be required to underbid in the non - resident bidders' state. In order to make this determination, please provide the name, and phone number of: a. Proposing firms principle place of business: 2800 Quail Run, Ste 100, Corinth, TX 75065 b. Company's majority owner principle place of business: 3100 Cumberland Blvd, Ste 1700, Atlanta, GA 30339 Ultimate Parent Company's principle place of business: Same as above From: Smith, Karen E. [ mallto :Karen.Smlth(acityofdenton.com] Sent: Monday, December 02, 2013 10:58 AM To: Mcneal, Brandyn H [HDS] Subject: RE: RFP 5392 - Electric Hardware Brandyn, I'll take it electronically, Regards, Karen E. Smith, A.P.P Assistant Purchasing Manager City of Denton 901B Texas Street Denton, TX 76209 P: 940 - 349 -7100 F: 940 - 293 -1837 www.dentonpurchasing.com From: Mcneal, Brandyn H [HDS] [ mai Ito: Bra ndyn.McNeal(aphdsupply.com] Sent: Monday, December 02, 2013 10:54 AM To: Smith, Karen E. Subject: RE: RFP 5392 - Electric Hardware EXHIBIT D CITY OF D( ON RFP FOR SUPQX g4",j Tl?,I� ILI&4 V, Signature Company 01111) y PAGE 45 OF RFP # 5392 RFP 5392 Date EXHIBIT D CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY DISTRIBUTIQT V41111,vi'J Please list three (3) Government references, other than the City oy Denton, who can verify the quality of service your company provides. The City prefers customers oy similar size and scope n[ work m this proposal, NAME: Lubbock Power uodLighL___ LOCATION 60O Municipal Drive, Lubbock, Texas CONTACT PERSON AND TITLE: Ronnie Dmvbre' Outside Sales Rep TELEPHONE NUMBER: 806.747.3128________________ SCOPE DFWORK: Utility Construction ___ C0NTR&CTP8DlOD: Transformer Contract -�moma�|�________ NAME: City Public Service _______ LOCATION: Multiple Locations, San Antonio, Texas ___ _______ CONTACT PERSON AND TITLE: SoottMuttkn Outside Sales Rep TELEPHONE NUMBER: 210.637.7435 _____________ SCOPE OFWORK: Utility Coostruotiou_________________ CONTR&C?P8DIOD: Transformer Contract - Annually ______ PAGE 4GOFRFP#53Q2 RFP 5392 EXHIBIT D CITY OF DENTON i I Oil a COUNTY OF DENTON The undersigned agrees this RFP becomes the property of the City of Denton after the official opening The undersigned affirms he has familiarized himself with the local conditions under which the work is to be performed; satisfied himself of the conditions of delivery, handling and storage of equipment and all other matters that may be incidental to the work, before submitting a proposal. The undersigned agrees, if this proposal is accepted, to furnish any and all items /services upon which prices are offered, at the price(s) and upon the terms and conditions contained in the Specifications. The period for acceptance of this Proposal will be ninety (90) calendar days unless a different period is noted. The undersigned affirms that they are duly authorized to execute this contract, that this RFP has not been prepared in collusion with any other Bidder, nor any employee of the City of Denton, and that the contents of this RFP have not been communicated to any other proposer or to any employee of the City of Denton prior to the official opening of this bid, Respondent hereby assigns to the City any and all claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 USCA Section 1 et sea., and which arise under the antitrust laws of the State of Texas, Tex, Bus. & Com. Code, Section 15.01, et sea. The undersigned affirms that they have read and do understand the specifications and any attachments contained in this RFP package. The undersigned agrees that the RFP posted on the website are the official specifications and shall not alter the electronic copy of the specifications and /or pricing sheet (Exhibit 1), without clearly identifying changes. The undersigned understands they will be responsible for monitoring the City of Denton Purchasing Website at: hltn: //www.cit ofdenton.com/index aspx ?page =397 to ensure they have downloaded and signed all addendum(s) required for submission with their proposal. Should a conflict arise between the PC, supplier terms, or contract; the terms and conditions set forth in this RFP shall prevail. I certify that I have made no willful misrepresentations in this Proposal Submission, nor have I withheld information in my statements and answers to questions. I am aware that the information given by me in this proposal will be investigated, with my full permission, and that any misrepresentations or omissions may cause my proposal to be rejected. NAME AND ADDRESS OF COMPANY: AUTHOR IZED R � R I � N'1' AT� I VE: HD Supply Power Solutions re Si g natu 2800 Quail Run Ste 100 Date 1 I -19 13 „ Corinth, TX 76208 Name Brandyn McNeal Title Inside Sales Rep Tel. No. 940.270.7200 or 940.270,7235 Fax No. 855.469.2528 Email. Jason.Leake@lidsupply.com or Brandyn.McNealaghdsupul .corn RFP 5392 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND TECHLINE, INC (RFP # 5392) rp f 2_, byland between �Te hlineaanc and a corporation, whose address a is 5401 Mart. Street, Ft. Worth. TX 76119., hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule 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 # 5392 Supply of I;° I immic 1 t tril �Ntit tt 6�ar °d te, C : n � cl: r_ t,is , ILd AaL�c sera s, 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 hereto, or on file, and incorporated herein by reference: (a) Special 9 ernes and �; °�rnelil�iw�ns (Exhibit "A ") (h) (I Ity (')l I)enton ,s ]�,Fl) ,5392 (on fie at the office of the Purchasing Agent) (c) 'Stancki d "l ernes and Conditions (Exhibit "B ") (d') 1 01 1t1 C lQ — Ce nllict o1` Inner st Questionnaire (Exhibit "C' "). (e) Supplier's Proposal. (Exhibit " "D"); These documents make up the Contract documents and what is called for by one shall be as binding as il' called for by till. III tile 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 111.st to the written agreenne�nt then to the contract documents in the order in which they are listed above. "I`hese docunicrits shall be referred to collectively as "Contract Documents." RFP 5392 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY IM APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY RFP 5392 SUPPLIER BY: ............. AUTHORIZED SIGNATURE Date: Name: Title: PHONE NUMBER FAX NUMBER CITY OF DENTON, TEXAS BY: GEORGE —"C-"–. –C " " .... "B""E1—'" ' A- ---- EMP1, CITY MANGR lum Exhibit A Special Terms and Conditions The Quantities indicated on Exhibit D are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the price. Individual purchase orders will be issued on an as needed basis. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasingD .cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. Contract Terms The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this contract for an additional two (2) 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. Price Escalation and De- escalation Prices quoted for the commodities must be firm for a period of one year from date of contract award. Any request for price adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI)* for other electrical equipment manufacturing (PCU33593359). The price will be increased or decreased based upon the annual percentage change in the PPI. The maximum escalation will not exceed +/- 8% for any individual year. The escalation will be determined annually at the renewal date. Should the PPI change exceed a minimum threshold value of +/ -1 %, then the stated eligible bid prices shall be adjusted in accordance with the PPI change not to exceed the 8% limit per year. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for * Producer Price Index /PPI is defined by the U.S. Department of Labor: The Producer Price Index (PPI) is a family of indexes that measures the average change over time in selling prices received by domestic producers of goods and services. PPI measures price change from the perspective of the seller. This contrasts with other measures, such as the Consumer Price Index (CPI), that measure price change from the purchaser's perspective. Sellers' and purchasers' prices may differ due to government subsidies, sales and excise taxes, and distribution costs. RFP 5392 consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. Upon receipt of such request, the City reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre -price increase prices must be honored on orders dated up to the official date of the City of Denton approval and /or cancellation. The request can be sent by e -mail to: purchasingncityofdenton.com Or mail to: City of Denton Attn: Purchasing Manager RFP 4 5392 901B Texas Street Denton, Texas 76209 Or call: City of Denton Purchasing (940) 349 -7100 The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. Total Contract Amount The contract total shall not exceed $3,600,000. Pricing shall be per Exhibit D attached. Delivery Lead Time Product shall be delivered to the City per the days noted in Exhibit D after receipt of the order. Cooperative Purchasing/ Pimback Option Supplier has taken exception to the original RFP terms regarding Cooperative Purchasing /Piggyback option. Supplier will only allow other governmental entities to purchase material on RFP 5392 if: a) the governmental entity is located with Techline -Fort Worth's authorized sales area b) all terms (price, lead time, payment, minimum order quantities, minimum order amount) must be met. RFP 5392 Exhibit B City of Denton Sta-Fdard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton`o solicitation are applicable to Orders issued by the City of Denton hereinafter referred to as the City m Buyer and the Seller herein after referred to as the Supplier. Any deviations must be io writing and signed hva representative ofthe City's Procurement Department and the Supplier. No Terms and Conditions contained io the Supplier's Proposal response, Invoice or Gto1enueut uba|| serve to modify the terms set D»Mb herein. If there is a conflict between the provisions on the face of the Contract/Purchase Order these written provisions will take precedence. By submitting an Offer in n:npouom to the Solicitation, the Supplier agrees that the contract obol| be governed bv the following terms and conditions, uo|cmm exceptions are duly noted and fully negotiated. Do|euo otherwise specified in the contract, 8eoiinoo 3, 4, 5, 6, 7, 8, 20, 21, and 36 oba|) apply only to u 8n|iuhu1ioo 1n pcocbuoe Goods, and Sections 9, lO` ll and 22 abu)| apply only to o Solicitation to purchase Services to be performed principally at the City's premises or on public rights-of-way. l. SUPPLIER'S OBLIGATIONS. The Supplier shall fully and timely provide all deliverables described in the Solicitation and in the Supplier's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federa|. State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective umwJ the date the contract is signed by the Ci\y, and shall continue in effect until all nbUgahnuo are pcdb,mxd in accordance with the Contract. 3. SUPPLIER TO PACKAGE S: The Supplier will package delb/unab|cw in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless cxhemdoe provided in the Specifications or Supplemental Tuon; and Conditions, each shipping container shall be clearly and permanently marked uofh|lop/x: (a) The Supplier's name and address, (b) the City's name, address and purchase order or yurobuoe ro|oaao number and the price agreement number if applicable, (o) Container number and total number ofcontainers, e.g. box l of boxes, and (d) the number of the container bearing the packing list. The Supplier ;ba|| bear oux/ of packaging. Deliverables shall be suitably packed to xocu,u |evrem transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier io not authorized m ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. actually receives and accepts the deliverables. will =11.1 ihe Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery ofdefivomhrmmust fully comply with all provisions of the Contract amm time ofdelivery, gmddy, and quantity. Any non-complying tender shall constitute ubreach and the Supplier shall not have the right m substitute aoouO/oning tender; provided, where the time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then make mconforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access mthe sites where the Supplier is to perform the services as required in order for the Supplier to perform the services in u timely and efficient manner, io accordance with and subject mthe applicable security laws, rules, and regulations. The Supplier acknowledges that it has satisfied itself as to the nature of the City's oomiuc requirements and upcoiDuutiona. the location and uuuenbu| characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the uurvic*o, and any other condition or state of fact `vbicb could in any way affect performance of the Supplier's obligations under the contract. The Supplier hereby releases and holds the City boroo|000 from and against any liability or claim for damages of any kind or oum,e if the actual site or service conditions differ from expected conditions. l& WORKFORCE A�The Supplier shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The SopyUmc its ump|ayo,u, ouboontrxomm, and xubuonmom/o znop\wyce» may not while coguQod in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract oroothe City's property . i. use or possess a firearm, including a concealed handgun that is licensed under »tmc law, except as required by the terms of the contract; ur ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled oubatunoco, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative uodfiza the Supplier that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, w, has possessed vr was under the iu0uunoo of alcohol or drugs on the job, the Supplier shall immediately remove such worker from Contract oe,,ioox, and may not employ such worker again on Contract nomicox without the City's prior v,dueo consent. Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act ofl98hand 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6. 1986, who will perform any labor or services under the Contract and the Illegal Immigration RoDnon and Immigrant Responsibility Act of 1996 (°ll8lR4) enacted on September 30, 1996. ll. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier, it's guboontsmtnm, and their respective employees, xhu|| comply D//|y with all applicable federal, o/u1e, and local health, safety, and uovimomeu/u| laws, on]inuncos, rules and ,egu|ouinov in the pc,&rmuuco of the oervicoo, including but not limited to those promulgated by the City and by the Qocoputioou| Safety and Health Administration (OSHA). lo case oy conflict, the most stringent safety requirement shall govern. The Supplier shall indemnify and hold the City bumieoo from and against all claims, demands, auitn, ucxivoo, judgmootu, fines, penalties and liability ofevery kind arising from the breach of the Supplier's obligations under this paragraph. Environmental Protection: The supplier shall bo in compliance with all applicable standards, orders, or regulations issued yuxuuum to the mandates of the Clean Air Act (42 U.S.C. W7401 o/ seq.) and the Federal xVutor Pollution Control Act, as amended, (33 U.S.C. § 1251 et seq.). M��� 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Supplier, unless otherwise stated in the contract terms. 992110M Nwl"� ®r WIN I "I. poil"I -CLU111 11101111011111119. l5fn ualenuaruayaRercornpleu 101 Lill worKun'tortuc nracl. rillul 'FujincIlL, I ULC, V-11-VIAll IIM-j UC--TTl1JJ1- if the Supplier is Dot in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Supplier, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Supplier to comply with the Contract or the terms of any warranty specified herein, (4) arisin-9 from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Supplier against the City other than those previously asserted in writing and not yet 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 this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Supplier as such. 17. RIGAT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Supplier shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Supplier shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Supplier which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "records", N51014-nbru such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18.SUBCONTRACTORS: A. If the Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply with all reguirements a roved 6 the City. The Sui I t vided in ilier shall not initially employ ani Subcontraci or excep as pro Maim US Deerl aCCepLe(I Dy Me k-Ity In Writing. 110 dUUCPLdllUC $11ALLCA-LLJ-111 lLFdUUVF SHUll UVWAILIAC d ITUFICT VI any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Supplier is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work perfonned for the Supplier by a Subcontractor shall be pursuant to a written contract between the Supplier and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Supplier. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for licr4t4&cl�--same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the terin of their contract, insurance in the type and amounts specified for the Supplier, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Supplier is required to indemnify the City. 20. WARRANTY ® TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Supplier shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 22. WARRANTY — SERVICES: The Supplier warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect, B. Unless otherwise specified in the Contract, the warranty period shall be at least one year fi-om the Acceptance upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs dental to such additional performance shall be borne by the Supplier. The City shall endeavor to warranty, but failure to give timely notice shall not impair the City's rights under this section. the above standard as reguired-b4,, the City, then in addition to any other available remedy, the City may reduce the amount of services it may be reXuired to (Xurchase under the Contract from the Su - "I'll, , and -curchase conforming services from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. immediate correction or removal and replacement of defective or non-conforming deliverables, the City prefers to accept it, the City may do so. The Supplier shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non-conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Supplier h! observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Supplier's Offer, or in any report or deliverable required to be submitted by the Supplier to the City. 1001131111iill� Twi� I MMM sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and ex enses incurred bv the Citv as a result of the Surmlier's default, includinp— without limitation, cost of co MINING` ; I'' 1111101 -1110" LUMMUL141H, L1lC_,�1A)llPl11C1 SHUll PPIUMP ! ! 9 - I alij specified in the notice of termination. The City shall pay the Supplier, to the extent of funds Appropriated or *therwise legally available for such purposes, for all goods delivered and services performed and obligatior.T. incurred prior to the date of termination in accordance with the terms hereof. I I I M�s lar"BLIMAMM 11 1AMM01 I I my, L" M I luol IMMA I City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the Supplier to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. or contribli , Jirili, ani Uiteni, trademark, coigiiht, trade secret, or an other intellectual rovert riehLof-any-kind It �UIQV, LIJUL 11W, UJUMIN HaTC 11G011 11JUTU UJ MIJ pri-i-9111 11:1 Q11L1LJ 111M 1-.V'C�A UV Lric of the deliverables and the Supplier does not know of any valid basis for any such claims. The Supplier shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Supplier's breach of any of Supplier's representations or warranties stated in this Contract. In the event of aM, syL!__cJaiwtbe_�y.&b1Lba_vP_t act as co-counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Supplier. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Supplier may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"), Supplier acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination. or other release of the Confidential Information will substanth .. iure, the, Citv and/or its licensors. The Supplier (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not ex�cress4�*ermitted under this AIreement. unless the Confidential Information is reiuired to be disclosed b]j_� or an order of any court or other governmental authority with proper jurisdiction, provided the Supplier promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate rotective order. The Sur)pfier agrees to use: nrotective measures no less strin ent than the Su )plier uses within its 38. OWNERSHIP AND USE OF DELIVERABLE& The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the defiverables, the Supplier agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its em!Qloyees to execute acknowledge and deliver an assignment of letters patent in a form to be reasonabiv approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Supplier agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Supplier for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the deliverables, Should by operation of law, such deliverables not be considered works made-for-hire, the Supplier hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made-for-hire, the Supplier agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Supplier further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specificatiODS, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work reiistration, trademark registration and/or rotection, letters patent, or any similar riihts in ani and all countries and i - V-1-1111MM interest in and to the defiverables. The Supplier's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the defiverables, but should desire to keep the same secret, the Supplier agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Conti-act. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Supplier shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, e e: m I s of bona fide established commercial or se me agencies sliall flavc LHC Frva, IN USIAL1011 Ut anj #L - C(lij U AIC, L* UUNUCI L11 from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Supplier, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Supplier or any agent or representative of the Supplier to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the erformin wJLcontrau– nt the. Contract is canceled by the Cit ursuant to this 12rovision i the Cit Mldl i W601 I 1-C CHLILICV, J11 by the Supplier in providing such gratuities. I MID 0 provision, wi e now e ge, exp esse or Impilea, oT me Sly ............ I L City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B). 44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or ajoint venture. The Supplier's services shall be those of an independent supplier. The Surmlier aarees and understands that the Contract does not �,,rant an� riihts or irivileies established for employees lnml�_ lowl 191CACHL6, TT1111 NCI �i tr afl".Lficr k-Itj employce 9-circl ran-] foL-1 the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. being the intention of the parties that there are no third party beneficiaries to the Contract. i Will I plimolliamiiiililil MAIACI L11C �_4111UUUL, *1 1 , o. similar or different character. ;,7. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No 1• prjnted or similar terms on any the Supplier invoice, order or other document shall have any force or effect t* change the terms, covenants, and conditions of the Contract. trade shall be relevant to su3• ,ylement or explain any term used in the Contract. Althou h the Contract mU have been substantialhvL v one it is the intent of the yarties that all yrovisions be c nstrued in a manner to be fair to both par-ties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between rei-gresentatives of each •a within fourteen ,j 1 Q, calendar daps after recei%it of the re4t uest or such la!Lr�#_criod as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the varties ma select within thirtIi WO) calendar dais, a mediator trained in mediation skills to assist with resolution of mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Pro-siram,fDCAP1% tarties a;%iree to %artici• ate in mediation in ood faith for u%, to thirtil QQ calendar daps from the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the �iarties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize U.- represent them or otherwise assist them in the mediation. I'll I'll 10 11,01 K1111111111 'I I e I III I'll ffslffil�� rxulll�9_11# 11 1 111 =,M771 I j� any I U)c V1 ynnulVIC Mat WVV4 ICICf Lf UFA d•PIJ UIC SUVSLUMVIC la?V V1 'aTFIVITM-N-11 jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. IWO [r rovision. The provisions of this section shall not prevent this entire Conti-act from being void should a provision which is the essence of the Contract be determined to be void. New Year's Day (observe MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving 0111 01=11mul it will be observed on the following Monday. Normal hours ► operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. A deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. survive the expiration or termination of the Contract. 54. NON-SUSPENSION OR DEBARMENT CERTIFICATIO I I : The City of Denton is prohibited from contracting with or making prime or sub -awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accq ' / tin.- a Contract with the Cit - the Vendor certifies that its firm and its %rinci%als are not currentl, sus[tended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of De-ito-t. performance pursuant to the Contract. The Supplier shall notify the City of Denton Procurement Manager in writin� of any such damage within one (1) calendar day, IUC *11U01 L11C %_*nL1'dQL S11OUTIt IL oc trelentel—nom pIrlivillialluc oy an acL +1 war, or'O'cr 01 legal nTrITM7, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Supplier shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception ► such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance. 65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future, No delay, failure, or waiver of either cancel, waive or otherwise affect such right or remedy. A waiver by a Party ► any breach ► any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 1 d1ij TTLL�-MAMWMIF L191 UVIINULULC Lt 71LU701 UY L11C �,A ► 1U11L011 V 111WAIL W 1111111 ifldlfffff MID the City of Denton may have by operation of law. EXHIBIT C CITY OF DENTON RFP FOR SUPPLY OF ELECTRIC UTILITY UTI HARDWARE, CONNECTORS, ARMS, AND ACCESSORIES --'-66-N'-F'LICT OF INTEREST QUESTIONNAIRE FORM d-Q For vendor or other person doing business with local governmental entity This questionnaire reflects changes � � � - -- ��- - �- q es made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person Datelleeeived who has a business relationship as defined by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be fled with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed, See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor, l irtma° of erson who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7"' business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) __ ...... .... 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the In ernment officer name is section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? Yes B. Is the file (:::]e questionnaire recei r likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes No C, Is the filer is questionnaire empl y a corporation or other business entity with respect to which the local government officer serves as it or director, or ho ownership of 10 percent or more? Yes NO D. Describe each affiliation or business relationship. l®I 1 _ _ . ..... ............ _... - ------ .. .......... 11 le /17Z Signature of person doing business with the governmental entity Date RFP 5392 EXHIBIT D T 0 C: . ..... . . ....... .. . ..... 0 0 0 W W tYPJ Y 1 1 m lel 0 0 - - W :D I w 0 0 R W Qt 0 N C) 0 M rJ co rl' to o a, 6 6 o o o o m ..... ........ .............. . . V J u u _A'.: S d d � tz t; t7l tn u u u u u 0 0 0 2 0 2 0 0 00 0 00 tz E R I I 0 IzIl ra 2 6 O o I z zw D u o w o 5,: A u 0 z u (1) D z T o 'A 2 z 0 (9 0 0 c2 u 5 u !� w m u z M O® 6 0 C� < < M M o M T 4 r, 6 T 0 1 IT o y �2 O o - 1;1 z 0 z z z z z o z li z :z z 0 0 0 V < j u Z T u -a E u In . d o < I!i < < -- a IL Q) Q) < Ll >.. < o I.) d- d d d d d d d < o o 0 D 0 IT,- - W 2 2 ymc 0 N u O .I 0 z a Z +V S 0 INiI 0 z 0 o 0 w<m ZA -j 1. 0 o o o v Z < u z D 0 0 0 L� u In z z z 0 0 E L 0 m 0 u �u CL cl D 0 Ck a < D D< <D o® z z o z IS z 5 z fn u 1 - 5; > 0 0 d 12� ci ci d 0 0 I� 11 u 0 u LU z z X 2 0 1, 0 u o coom Ic z z z "'''zz z w zddd 2 Z z z z z z :, a" C7 = r 70 - = , 2 2 < < Z r o a a o o 0 (} o u 0 2 0 u u u 2 z < < o ci 0 0 101r, b; b� d u u d o n o o o o Q T x L� In 0 o o o o c o o o o E O o In o o W . w I tM In o o o o o 0 o o o o o o o z o N m m m o N m m m m m m m o 0 . . ........ . .a 0 . . . 0 CL 0 0 of 0. — ----- --- -- -- Jl...- A- RFP 5392 EXHIBIT D -0 Ir " > T " I It " In In Ln In In -1 In m 0 0 A 1.11 In In In In a, Wcl 0 1.Q 0 0 1� �t, o o �q to In 1 0 o OR In In In 11 11 W ll� . 1. d 0 In P, 71 1 M I n n 11 1 0, IV 11; . Ln . . ..... . 0 .. . .... 1 n "1 0 "1 0 0 11 M 0 In '1 0 In 0 0 — — 0 — — 0 — — 0 0 f A . 't m I w In A m i In Ln In Iq In w 1, 1p 0 In ",.0,, In 1 Iq In 1* P, li 1� ---m3 VF Ah all. Li I? 'u- V U- -u u u - - u u u u u < u u z z . . . . . . . M < m < z: u u 0 U z z z z z z z Oc)0020 R, Z) u u z z z z z z z z In . ....... a2l !n a < < NNNNNN z z z z 9 �l W W W W n I, — 6 .:r, 0 0 < > 7 z Z Z Z 2! Z Z Ln d cu V, - 0 0 0 0 u �D 0 0 d u) U) 0 �D j 0 o < t3 I , " Cb Z- 5, 0 0 y T Z-- V, In 0 Z z z z z z z nxn 2 2 2 10 1, z z < > m K 1.1 xe 2. 2. 2 u u u u d 'a d 0 :D 0 z Z Z 0 U� u u u u u y 0 0 u 3 .31 R 2 0 < id < < Im DM DM 0 0 . . ...... M x Ps m Ln 12 o D ft z Zrq 0 I.n C, 0 0 0 C) 0 V, vi 0 0 D -D 0 0 " 0 o S u u u u z u u �7) 0 6 "t In 1, 0 mm) 0 M r5� C, Z Z 0 r, Z Z 0 zo Z it z z o o z z o o z z o o o z L LD 0 0 u 0 0 2 z o u u o u u w In In V� D, In uoi In C.) 0 0 0 2� z 2� 0 0 U) 0 �j 0 U 0 u -j -j -j In b 0 0 0 0 0 0 0 0 0 u u u u L) P L) :1 z z ww ww '.J.' z z u e'. U z z o o :7 o u 2L, '0 o o In C) z 0 0 ." , w u u u u u V'i In tn 1, V, I, (J Ij u U w 0 In 0 0 In 0 0 1.." 0 0 0 0 I.n 0 0 0 In 0 0 0 0 0 0 N 0 0 En Z 0 0 . o 0, 0 . 0 N to 't w �t In 0 1, w In w 'N' M� �N' MN M n Z M 11) In Ln -n W 0 n n Ln N I M m 0 0 I N In 0 I.n 1 0 In . . .1 11 In "I m m In A I I I , , , 0 w w . w w w ., . . , 0 M2 2 2 2 11 . ......... N < < < 99 �s ...... . ... ...... . .... w 0 tn Ln 0 m 0 n 1 1 I . . . M 0. I . n 1� E- E 4 fn U, vR 11, W CA 0 1.0 "1 0 11 It In In Ln Ic I a11 In WN wm 11 w m w 0 0 0 0 r, w 0 0 0 In In T rn ........... RFP 6392 EXHIBIT D . i T �t IT Nr r It Q ",I -,t 4 ® f Y� Ifi 0 IR N 0 C) 0 0 M 1.0 0 �11, 0 C., 0 w 11� .1 q 1� q N 0. "R t "4 � "1 1: 0 ;T 0 a 0� I� �l C; 1.11 0 11 0 1� I I I I 1" 1. ., o A " . " NI 4 r.� '4 4 w co "4 41 '1 VF Ul .a h a, w 0 . . Iq . . .... . ........ w 0 In m o. q 1� q 1" 19 O Imo. m M V�t Vl l7l 0 1 W I" N 't C, 1, ry 11 m III I I q . M 0 m V, an. N rq C) u V) 6 u u u O D D u I w I z 4 WI u rl U �d u o w m I < I z@. u < Yy 66 PE O > G. z m ID z z Z z z 0 6 m , z < moo *2 u J u d 2 0. :s m z 0 mu F;i M 11 u v3 ry PV Nl I .2 0 > aw M1'1 > z U 0 fV z z z d FT P J, 61 z ca 0 w m o o o 0 0 < 2 0 0 op Im , - - " < 9 9 1- 7 V 066 0 n Z z 0 0 0 z < < < < < r,.b on 'L� 0. 0 0 0 , >- > u u u u u < w w w 11 N z z < z m 2 2 2 2 2 2 2 2 2 2 2 2. 2 > z 5 z z 'D 'D 'D 0 0 0 0 nx Z: D MW L.Y WW w U _j 0 Z z < 0 < z 0 J +� K 0 c) co m 5 Vi T �T, I w < t; 0 0 0 2 m L) 15 15 pm Q Q > z W < z z z u u 2 u 5 mo wz I I M In 0 0 < 0 0 0 < < 0 < z 0 z 0 z 0 o Z. , m c'N a F_ z 0 0 u 0 - u u 0 13-3.3 z v" 13 10, 10, 00 <. 0 U L� W LZ 0 Q U `9 0 L>' ;�� , - LLI 0 2 z < u u u 0 �z 0 11 (L V2 z Z LIC, LU z 9 Z 5,; ---. w - . D D 0 0 0 0 D D D z u u u F_ 11� 15 U 4t 'r u 'i 0 0 0 0 0 z z 2� F- 0 I - 0 , I , f U u u u u u 3 3 2,,.:..?, 3 3 3 3 F r7, I:- F �7- 0 0 U 0 0 0 0 0 n 0 . 0 0 0 0 CD 0 0 0 0 LU 0 0 0 0 0 .A 0 1 0 E 0 m IT 0 1.11 m V. 'r w 0 In LU N rl N N 11 0 0 1 0 0 1 11 11 1 'M "I 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 I . . . . . . LL w - . . ....... . w w 11 w W - r� LL m w 1 m w 4 m . . . 0 0 a Na :3 ,a c E 0 V E 0 0 0 1 "1, C, m 0 I -I RFP 5392 EXHIBIT D n of In In 0 In LD E 0 .1 In In 0 1 0 w 0 N o c, In o o In N U. IS D r N III 1 11 ll� 1-n Iq In N N tD • 1 11 co ID 0) In , w o o C, w ol w 1.6 o "I o I I. N O 9 o. C, Al 1 4 1 , . � N In It Rn m a In q -1 `D m - - In m In o 11 c-� 6 In 'n `D 6 .,f 6 6 6 6 "i N 'i 4 16 16 1A4 "I ur c o o o o 0 o N ff� m N z o o o o O o 6'o c In o o o o o . S x m z try- cq < < < < u om E z z 0 0 0 0 0 0 It w i 2.. T...z 2L a ,2 In o z S�l N Z z In u z z �j z z -2 ON N 0 'A m t In l�- 2, T I, , ) V, In z) 0 0 0 0 to In n oo C5 6 o yl m u . . . ...... 6 C, u R, wm a', o o c . 11 �; In c, Q o In w Q o ,D �1. , u 12 2� w w In o ou o, It w . . < ft u < < Im, mw m z u z u Z z z z < �] z z z z �; z z z z 2 2 2 2 z cl z m a :5 - - - o In < < < < < < D, IS I � P P 0 0 M. .... [T- T m m: m U M m m a, u o x 0 SIT m m m Lu u u u u T S z u u 0 u Is > > > In < z O z N 0 < < 0 u X x x x u u x 0 8 o a 2 14, < < N < 7 q< vi u 't r < L) 24 u o N b Lu " C , ton 2 , !o 5 t < o < N x X < Z wz z, a.s 0 0 o 0 o F- 0 z z z z 1, M �D ce m-- 0 0 0 0 0 m 2 Z z ;i z z u u o LE a� m 1 1 U) V�i V� 0 0 0 0 LU C) 0 0 u z tz 6 6 . u) to Z 8 m m m fZ . 0 m z li < 0 0 u LLI I, In V, In L, I, In < 0 0 0 0 0 0 < t; �q m Lq m m m�o 0 In < u z �2 w �3 0 0 0 L 0 D D n D z) D 2 0 0 2 2 E olo o .0 c o (D o o o o o a o o o o o m o c o o c o o o o o o o o C, C, o 0 C, .1 o o o o c� o w , , 't W rl I K o In o o o 4 ig o o N w o a o o N 't o o N o N m 7� w o -4 1� t In z m I, 1� C, N N 11 N -, - D, n m It r 11 c o o o , I I N N N tm In In In "I =1 In C, U) w w f%) w ff, D m rn m 2 n N N N l . . A N � o o o o o o o o c 0 " " N n m o o o o o m 4TV o D ll� In In In In In m 'I III In MIA IS o c, c 'D o N 11 11 N o 0 o U. I I , w N �q N N N N m .s 11 w w �vl w w . w . . . . . w w w . . . u LL N w N Nl�IN ,4 l " N N a. «"J; ns 'Zo 9 �L- 9 g -< -m <w �5 �.,sj g Z� -;5, �L g • g Z� �6 li. n 0 CL 0 lo o, In o In N In In zf m W I N CL N N 0 q 11 1 N 1� 1 11 N q r� - l "�N N I'l N N IN rl E w o In w m N In w 0 In I 0. In (qll N w o "D In w cl ol ri m "I In RD In ............. . . ..... RFP 5392 EXHIBIT D 44 O rl� j Iq 10 14 1. Lq r,� 11 11 0 1! 0 11 lzs 0 4 IT 1 4 cr w It 0 0 �,6 0 0 w Li -R n Iq 0 ar 1i 0 llq w LL x q N N 11 0 IXS a 01 qD 0 M o m N ref i N w to 0 co r_ 0 u 0 t 0 0 w 0 0 U 2, 0 0 C., U &i ¢ < U < it 0 ui z ON vl 0 E2 0 z o u z 0 0 0 < 0 �wu ...... . ....... E- ¢ xu n J u ry z z Tr z 0 'CL z Z Z < 0 4, It < v, III !Z� u ON 7, 2 L9 L9 0 w z u 0 u 0 0 L) z u 0 u u U -oo - V w V w Ij 0 0 w o u u u u u u u V u u u �J U L) Z Z u u u w w wu In M1A G) z z Z < < z z < z 0 < 0 0 z z z z z z 2� z '14 z < z < 0 > z , < u z < 0 :E o T Z L9 U 11 u u u u ::r r. X �x 'i C, 'j-u aq: U x m u m x c UW 3 'z' Li z 0 < z . -,., D N w C� x ,- V, .2 X z z 2 Z s w o o 0 O .c CFI — ?< < . 4 u u u 0 0 Cr u z z z 0 X x x u o z o Vi w Z w 0 Z o < < x Z V w 0 1 w C') 0 o z 0 w > X u cy CR xu U z w w w 0 0 ww o C) o o U) u u 15 U U oa Vf 111 lo 0 w 0 0 0 0 LU r Iz 0 > , d 2 1= vi u Z, oo,M,r,i,)o 000 O Cy u V V-: S V2 5 < RZKK K00"Oumuo, 0 z z o , . z 0 - 2 m I z U z 2 0 —5L -, . .... ... !:El u c o o E o o w w N N o o m ::1 N o o M lo w o o q 13 o o �;l . o r� 14 o o W o o "I . o c 1.) o o o o c wr IT v o o c o o o o o o o o o o o o o o o o .E 0 , o c oo o c o c c o ID o o m .a.nn 2.2- a 2 Mjj L, =a, .2 0 0 . ..... . ..... ..... ... . . ......... ..... ..... ..... ... CL 0 't o n 0 0- 0 rl N 11 N N N rq rq M—N., r, w o 1. m ;1 0 w ?1�1 �11 �11 RFP 5392 EXHIBIT D —0 ......... . ..... .............................. . "t In n n In 74, Kf In E- 0 In N m to 0 ol J f9 0 In 1, r! K 0 Lq wj r� 0 0 IN o 11 0 In In 0 0 In o 0 0 In In C., - o 0 o 0 o 0 o 0 o ol 11 In ul q In m , w It "1 0 o 11 i ai Z t o A 'n, - — - - — — - 'n - YL I,M, IN, In, ID I r,, o oIa ..I 11 In , . . w o 1� m In ll� o o In 1p m 11 If! 14 o o o W �N 14 o o c 0 in 14 In IA I N 'i 11 1. 1 N I IN N rt} I, Jil 'A 0 or 6 :T-- In I? E. Lz id F. i Ll x o p IS cN z u It lir, o o < z < > 0 In z z a z OR :,-, < 0 U x x , F__ _ 9 CS 7 z Di u vI x Cj M 7-, 0 u lW z O ry z '0 z z a a 0 In In; , m z T w 20 K In I)t < In T 'F In D Ci F m M 0 z z z 0 IA IN IN 6 11 In 01 u u u > m n, 0 n < In x. ILI D -.-.) < In In 0 < 2 A Ln L' !L' I 0 is It 6 L IA 0 In . ?I n- -,:qq Ij IJ �j In a: u D eg < R -a, fn 0 T. 2 0) 03 Ell > 0 0 LN z " 0 w < < iJ . ..... ..... o > In r 6 :r 1: 1 , olls: p H :T a: 0 u, U !Lj M , F- T > z a d -) I < •T 'r. Z or LD T (D - 'n I. > z > 0 l: 19 z = (9 T T ID ID Z I.W. K 3� . 5, -, < z z U) LU 0 1�1: w 51 to M. r u D u :J u u u c) , 0 0 U Z 0 o 0 p < In D L,I z, IZ. It < 9 O 9 o o 0 It < ii LL O U E 0 0 0 In IT 0 0 n "1 0 . I .1 0 I In 0 0 m 0 0 N 0�� 0 0 'n o 0 0 0 0 N w 00 00 o 0 00 In o 's, 1, m o IN 0 P- , n 'A 0 a 0 kD ID w w 0 w 0 (�I 0 0 0 0 M N 0 0 0 0 M 'I 0 In 11 11, 0 0 0 0 0 0 ID 10 'D Wp It 0 0 '1 a w qD 0, IN .E- In 11 In 1, 11 Ln In n 0 0 0 0 0 "1 0 "1 On "1 0 0 0 Cl N .2 u IN N N N N IN N N IN, n, w It < ua < D U) CL 0 21, In 10, In IN 1 11 In In Ln CL 41 cr In It 0 Ci N 11 "1 m .1 N "I I, Iq m 01 IN 11 m 11 0 'n 0 0 m m 0 0 1 11 C C, M m 1 M, 11 11 �11 1 P1 n 1, :1,11 N IN 1 1 N 21 E `N�� IN IN It 0 N N 1 N N N In r, N IN W, I �l 11 , m IN N 1. 1 I , N N I IN 7, Y ' (A N N� N 1. 1� la r, rj) N 4 0 0 N I 'N 11 IN In "I .1 0 I In N N uY N RFP 5392 __11, _ o L. a. 0. a. a. EXHIBIT D RFP 5392 ....... ...... ... . In o In L9 IQ o 1, o o o IDO o 1.11 w o n o w In In w o a o m c o w m lo M In n4 n I I` In mi ti In uw La In IV 71 S oil �7 o In In LU ID rn tz Ln rq --L—LL --j — —L TH RFP 5392 CITY OF DENTON W,3011WAK XXXYMBIHME BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS 1. ContractorName: Terw-im" �wc. 2. Address (Principal Place • Business): 51+01 x'1 4f^ S1, T/<761 3. Does your company have an established physical presence in the State of Texas, or the City of Denton? s 4. Tax Payer ID #: I- 7Lf - >+90141 - Lj 5. Email Address of Primary contact: 6. WebsiteAddress: VNC • CAYLr.' / 7. Telephone: <811-541-1900 8. Fax: .2 \1- 56 l - 901 OL UNUMM W141111MA CITY OF DENTON CONNECTORS, ARMS, AND ACCESSORIES Please detail responsibilities with the name of each key personnel. I W1,111,11d a. Proposing firms principle place of bUsiness: b. Company's majority owner principle place of business: ftv\ I —5c UTTItTAE191141A 9"OSEMM CITY OF DENTON MW141I.-W-MI, RDWA CONNECTORS, ARMS, AND ACCESSORIES M*X9j"' NEI Any exceptions taken to this RFP must be listed on the lines below. If there are no exceptions, please sign where indicated at the bottom of the page. MMMMINE= 16 nL\-"%'jP 040VONK ow� . ........... uaoi . . . ........... . .. es" PJ- & —1--V - — --------- . . . ......... . . .... . . -- -- - ------- . .... ............. . . 16 nL\-"%'jP 040VONK Signature W= FrITUTMA—W Elel�kt M. I-Ac I Company Date o f — t Al , ke- "s 13 Signature W= FrITUTMA—W Elel�kt M. I-Ac I Company Date CITY OF DENTON �KOJQQ DIN K130-M W"A i W4013MR431011 Please list three. (3) Government references, other than the City of Denton, who can verify the quality of service your company provides. The City prefers customers of similar size and scope of work to this proposal. GOVERNMENT/COMPANY MIAMI' . . . . . .......... LOCATION, CONTACT PERSON AND TITLE: TELEPHONE NUMBER 14�sl SCOPE OF WORK: +r ...... CONTRACT PERIOD: )%t, II ��..e,e_ .......... . . . . ..........m...... .........r_ . . ........ . . . . ....... . ......... . .... . . GOVERNMENT/COMPANY NAME: x", . . ..... LOCATION: i�' I Z ),�- '��: �T' T ...... . . ........ 17� CONTACT PERSON AND TITLE: RYVA -"NV-Ms'L-- --------- TELEPHONE NUMBER : ..11-V- - ------ - I t -- . . .......... - - ---------- SCOPE OF WORK: . ...... . . .. . . . . . ...................... nA�gtw — ------- sk CONTRACT PERIOD ._ ..... . . . ............ .. .. .. .. .. .. .. .. .. .. . . . ........................... . --lovVI .. . . . . ............ ...... . REFERENCE T HREE WIN V92MON CITY OF DENTON CONNECTORS, ARMS, AND ACCESSORIES 14 H ILI 191 W'%m State of Texas r_ — TPASS Division PO Box 13047, Austin, TX 78711-3047 (512) 463-5872 or (888) 863-5881 or http://www.window.state.tx.us/procurement/prog/liLib/ Instructions: If your company is already certified, attach a copy of your Certification to this form and return with the submission. If your company is not already certified, and could be considered as meeting certification requirements, please use the web link to obtain such. If you are submitting a response and plan to utilize DBE's, then use the form below to identify the business and include the business HUB certification, ........................... Minority-Owned Business Enterprise Women Owned Business Enterprise Disadvantaged Business Enterprise CITY OF DENTON A-S-T-nrry—* -r—h—CE-UT Aa CONNECTORS, ARMS, AND ACCESSORIES AGMM:2�, �'x CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND._,_,,,_, For and in consideration of the covenants and agreements contained herein, and for the rnutual benefits to be obtained hereby, the parties agree as follows: Supplier shall provide products or services in accordance with the Supplier's proposal in response thereto, a copy of which is attached hereto and incorporated herein for all purposes as Exhibit "D". The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: 1".49 EXHIBIT D CITY OF DENTON U WIS11191 " . . . . . . . . . . FLYN 1140111MA 11 of tin DIU, 1 01 The undersigned agrees this RFP becomes the property of the City of Denton after the official opening. The undersigned affirms lie has familiarized himself with the local conditions under which the work is to be performed; satisfied himself of the conditions of delivery, handling and storage of equipment and all other inatters that may be incidental to the work, before submitting a proposal. I certify that I have made no willful misrepresentations in this Proposal Submission, nor have I withheld inforination in my statements and answers to questions. I am aware that the information given by me in this proposal will be investigated, with my full permission, and that any in isrepres entati Otis or omissions may cause my proposal to be rejected. NAME AND ADDRESS OF COMPANY; . .......... . . .. . ......... Tel, No, !911 - 591- 19 e) b . ....... ... Ernail. PAGE 50 OF RFP # 5392 [Zia AUTHORIZED Signature.""" Date /,I..k _- Name Title rV1<7J1e . ....... -------------- - Fax No. . . . . ....... CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND WESCO DISTRIBUTION, INC (RFP # 5392) THIS CONTRACT is made and entered into this day of ............................ --Al), mm 20___, by and between WESCO Distribution, Inc., a corporation, whose address is 9400 N Royal Lane, Irving, TX 75063, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule 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 # 5392 Supply of Electric Distribution Hardware, Connectors, Arms and Accessories, 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 hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A ") (b) City of Denton's RFP 5392 (on file at the office of the Purchasing Agent) (c) Standard Terms and Conditions (Exhibit "B ") (d) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C "). (e) Supplier's Proposal. (Exhibit "D "); These documents make 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 5392 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY IC APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ICM RFP 5392 SUPPLIER 1 61 `5 4 " BY, AUTHORIAD SI(INATURE Date: Nanie: Title:,, 1?71 PHONE NUMBER FAX NUMBER CITY OF DENTON, TEXAS BY: GEORGE C.CAMPBELL " . ......... .... " "',' C ITY MANAGER Date: Exhibit A Special Terms and Conditions The Quantities indicated on Exhibit D are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the price. Individual purchase orders will be issued on an as needed basis. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasin a,cityofdenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. Contract Terms The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this contract for an additional two (2) 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. Price Escalation and De- escalation Prices quoted for the commodities must be firm for a period of one year from date of contract award. Any request for price adjustment must be based on the, U.S Department of Labor, Bureau of Labor Statistics, Producer Price Index (PPI)* for other electrical equipment manufacturing (PCU33593359). The price will be increased or decreased based upon the annual percentage change in the PPI. The maximum escalation will not exceed +/- 8% for any individual year. The escalation will be determined annually at the renewal date. Should the PPI change exceed a minimum threshold value of + / -1 %, then the stated eligible bid prices shall be adjusted in accordance with the PPI change not to exceed the 8% limit per year. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for * Producer Price Index /PPI is defined by the U.S. Department of Labor: The Producer Price Index (PPI) is a family of indexes that measures the average change over time in selling prices received by domestic producers of goods and services. PPI measures price change from the perspective of the seller. This contrasts with other measures, such as the Consumer Price Index (CPI), that measure price change from the purchaser's perspective. Sellers' and purchasers' prices may differ due to government subsidies, sales and excise taxes, and distribution costs. RFP 5392 consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. Upon receipt of such request, the City reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre -price increase prices must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasingga,cityofdenton.com Or mail to: City of Denton Attn: Purchasing Manager RFP # 5392 901B Texas Street Denton, Texas 76209 Or call: City of Denton Purchasing (940) 349 -7100 The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. Total Contract Amount The contract total shall not exceed $60,000. Pricing shall be per Exhibit D attached. Delivery Lead Time Product shall be delivered to the City per the days noted in Exhibit D after receipt of the order. RFP 5392 Exhibit i City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's solicitation are applicable to Contracts/Purchase Orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal response, Invoice or Statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the Contract/Purchase Order these written provisions will take precedence. By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall apply only to a Solicitation to purchase Services to be performed principally at the City's premises or on public rights -of -way. 1. SUPPLIER'S OBLIGATIONS. The Supplier shall fully and timely provide all deliverables described in the Solicitation and in the Supplier's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Supplier's name and address, (b) the City'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 4 boxes, and (d) the number of the container bearing the packing list. The Supplier shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non - conforming deliverables. If the City has the right to inspect the Supplier's, or the Supplier's Subcontractor's, facilities, or the deliverables at the Supplier's, or the Supplier's Subcontractor's, premises, the Supplier shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. P 5392 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to the sites where the Supplier is to perform the services as required in order for the Supplier to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Supplier's obligations under the contract. The Supplier hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. 10. WORKFORCE A. The Supplier shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property. i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the Supplier that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( "IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Supplier shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph. Environmental Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Supplier shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation I: ' ;3J charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Supplier's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Supplier's invoice. C. Invoices for labor shall include a copy of all time - sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Supplier shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Supplier to such extent as may be necessary on account of- i. delivery of defective or non - conforming deliverables by the Supplier; ii. third party claims, which are not covered by the insurance which the Supplier is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment; iv, damage to the property of the City or the City's agents, employees or suppliers, which is not covered by insurance required to be provided by the Supplier; v. reasonable evidence that the Supplier's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Supplier to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii, failure of the Supplier to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Supplier agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Supplier. The City shall provide the Supplier written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Supplier, unless otherwise stated in the contract terms. I��allu�r�� «► r�r_�I��nr����T�lrl HIMUN A. If a DBE/MBE/WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier io required ho submit a Contract Close-Out MB2/WBB Compliance Report to the Purchasing Manager om later than the 15db calendar day after completion o[ all work under the contract. Final payment, ,otaivago,or both may buwithheld if the Supplier is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i u waiver of all claims by the City against the Supplier, except o/m6ms (}) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after fiool iuopcodou, (3) arising from failure u[the Supplier to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and vvmzouty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Supplier against the City other than those previously asserted io writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated ou the Offer includes the cost o[ any special tooling or special test equipment fabricated or required by the Supplier for the purpose of filling this order, such special tooling equipment and any process sheets related tbc/x0o shall become the property oCthe City and uboJ) be identified by the Supplier aosuch. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Supplier shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except i[oo audit ioio progress or audit findings are yet unresolved, io which case records mboU he kept uo61 all audit tasks are completed and resolved. These books, records, doounaouto and Nbor evidence shall be available, within ten (10) business days of written request. Further, the Supplier shall also require all Subcontractors, material suppliers, and other payees N retain all books, records, documents and other evidence pertaining 0othe Contract, and to allow the City similar access »o dmoo documents. All books and records will be made available within u50 mile radius of the City uyDenton. The cost nf the audit will ho borne 6y the City unless the audit reveals uu overpayment nfl%orgreater. lfuo overpayment nfl%or greater occurs, the reasonable cost of the audit, including any travel costs, must be hocuo by the Supplier which must be payable vrhhiu five (5) business days oy receipt ofuuinvoice. B. Failure 0o comply with the provisions of this mocdou obu|| be u material breach of the Contract and shall constitute, in the City's sole diaun:dou, gmuuJo for tuuuioudoo thereof. Each of the terms "books", "records", "documents" and "other evidouoc'', as used above, shall bn construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. : A. If the Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply with all requirements approved hythe City. The Supplier nbu| not initially employ any Subcontractor except umprovided in the Supplier's Plan. The Supplier nbol not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted hythe City in writing, No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies ofthe City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Supplier is additionally required 0o submit umonthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. 8. Work performed for the Supplier hyu Subcontractor shall hopursuant toa written contract between the Supplier and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent nfthe City and the Supplier. The City may require, as a condition 0n such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and upp|iomiioua for payments, including any u|uimm for additional payments, damages orotbcrvvioc,tnthe Supplier iu sufficient time 0o enable the Supplier to include same with its invoice ur application for payment /o the City iu accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Supplier, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent ua the Supplier iu required to indemnify the City. RFP 5392 C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Supplier is responsible for the Supplier's own acts and omissions. Nothing iu the Contract shall create for the benefit of any such Subcontractor any contractual relationship hooveeu the City and any such Subcontractor, nor shall it create any obligation no the pmt of the City to pay or 0n see 0n the payment of any moneys duo any such Subcontractor except um may otherwise be required hylaw. 11). The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than ten ()0) calendar days after receipt o[ payment from the City. 19. : A. The Supplier warrants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by others for like deliverables under similar terms ofpurchase. B. The Supplier certifies that the pdooy in the Offer have been arrived at independently without consultation, communication, or agreement fbrtbepurpooe of restricting competition, as to any matter relating 0m such fees with any other firm ur with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, or otherwise recover, any amounts paid for items iu excess of the Supplier's current prices uu orders ky others for like deliverables under similar terms ofpurchase. 20. WARRANTY — TDTLE: The Supplier warrants that it has good and indefeasible ddo to all deliverables furnished under the Contract, and that the deliverables are free and clear oy all liens, claims, security interests and encumbrances. The Supplier shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 2l. WARRANTY —DELIVERABLE& The Supplier warrants and represents that all deliverables sold the City under the Contract shall ho free from defects |n design, workmanship mmanufacture, and conform in all material respects mthe specifications, drawings, and descriptions in the Solicitation, to any samples furnished bythe Supplier, io the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local )awx, rules, and regulations, and industry codes and standards. Unless otherwise stated iu the Solicitation, the deliverables shall ho new or recycled merchandise, and not used orreconditioned. A. Recycled deliverables shall hu clearly identified aasuch. B. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by }m*; and any attempt 0ndono shall hewithout force oreffect. C. Du)cau otherwise specified in the Cootreo, the vvmzuoty period ybuU be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either repair the uou-ooutooniug deliverables, or mp}uuo the oou-xou0nmoiug deliverables with fully 000tbmuiug doUvcmb)no, at the CdY`o option and at no mdddiuuoJ cost to the City. All costs incidental to such repair or ,op)uuemcut� including but not limited 0n' any pookuQioA and shipping costs oboU he home exo|ouiro|y by the Supplier. The City shall endeavor togive the Supplier written notice nf the breach nf warranty within thirty (3O) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Supplier is unable or unwilling to repair or replace defective or non-conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity ofdeliverables it may he required to purchase under the Contract from the Supplier, and purchase conforming doUvo/uh\oo from other oomocn. In such event, the Supplier shall pay to the City upon demand the iuon:omeJ cost, if any, incurred bythe City on procure such deliverables from another source. E. If the Supplier is not the muoo8mUoocr, and the deliverables are covered by u separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred /othe City, the Supplier shall assist and cooperate with the City to the fullest extent tu enforce such manufacturer's warranty for the benefit o[ the City. 22. WARRANTY —SERVICES: The Supplier warrants and represents that all services to be/rovided the City under the Contract will be 8d|y and timely performed in uAnnd and workmanlike manner in ouonrd000e with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules orregulations. /\. The Supplier may not limit, exclude ur disclaim the foregoing vva000tyoruoyvvarnunt/impllcdhy|uw,aodauy attempt tod000 shall he without force oceffect. ����� B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Supplier is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Supplier, and purchase conforming services from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non - conforming deliverables, the City prefers to accept it, the City may do so. The Supplier shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non- conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non- conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Supplier is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Supplier's Offer, or in any report or deliverable required to be submitted by the Supplier to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Supplier, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Supplier's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Supplier shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Supplier, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required to be submitted by the Supplier to the City shall be grounds for the termination of the Contract for cause by the City and RFP 5392 may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery mother due dates by written notice to the Supplier if the City deems dis iu its best interest. {f such delay causes uu increase iu the cost of the work under the Contract, the City and the Supplier shall negotiate ou equitable adjustment for costs incurred by the Supplier /u the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an mdjuamzonU ndbio thirty (30) oo1eudur days from the date of receipt of the notice of delay. Fui/mr 0o agree on any adjusted price aboJ| be handled under the Dispute Resolution process opunUiod in paragraph 49. However, nothing in this provision shall excuse the Supplier from delaying the delivery aonotified. B. Neither party oboU be liable for any dobmh or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event oydefault or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an eve/t, a uun6:ruooe will be bo)d within three (3) huoiuony days 0o establish a mutually agreeable pudodnfdmeroaaouuhlyuoonooarytoovcronmodbuxffeotnyouobfai1um0opecGorm. 3l. INDEMNITY: A.Definitions: i"ludenunifiod Claims" shall include any and all claims, demands, suits, causes uf action, judgments and liability of every obuzuu&:r, type or description, including all ocumouu6le costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Supplier, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third partioa); and/or (2) death, bodily injury, U|oeou` disease, nm,ko/o compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees ofthe City, the Supplier, the Supplier's subcontractors, and third partieo), ii "Fault" oboJ) include the sale of defective or non-conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE SUPPLIER SHALL DEFEND (AT THE OPTION w* THE CrrY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING mu RESULTING FROM THE FAULT OF THE SUPPLIER, wRTHE SUPPLIER'S AGENTS, EMPLOYEES oa SUBCONTRACTORS, rwTHE PERFORMANCE omTHE S0PPLIER~m OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL mo DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE SUPPLIER (INCLUDING, BUT NOT LINUTED TO, THE RIGHT zm SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY om LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition 0o the specific insurance requirements detailed in the solicitation document. The successful firm shall procure and maintain insurance of the types and iuthe minimum amounts acceptable to the City of Denton. The insurance shall be written hyucompany licensed todo business iuthe State of Texas and satisfactory to the City ofDenton. A. General Requirements. L The Supplier oboU at u minimum carry insurance in the types and aomoute indicated and agreed k/, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period, d. The Supplier obuJl provide Certificates of Insurance with the coverage's and oudnrmemooum required to the City umvorifiuodonof coverage prior tocontract execution and within fourteen ()4) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Supplier must also forward a Certificate of Insurance to the City whenever u previously idenbfiedpolicy period has expired, orou extension option or hold over period ia exercised, uo verification of continuing coverage. iii. The Supplier shall not commence work until the required iuou,uuoc is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Supplier hereunder and u6u|1 not be construed 10 he u limitation of liability on the part of the Supplier. h/. The Supplier must submit certificates of insurance to the City for all ouh0003edum prior 0o the BJPP 5392 subcontractors commencing work nuthe project. v. The 3oppUex`u and all subcontractors' insurance coverage aboD be written hycompanies licensed to do business iu the State nf Texas a1 the time the policies are issued and shall he written hy companies with A.&Y. Best ratings oy/k- VII wr better. The City will accept workers' compensation coverage written hythe Texas Workers' Compensation Insurance Fund. vi All uudorocmnrkm naming the City as uddidnmd insured, n/oivcxo, and notices of uamcuUudou endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following /u0bnoudoo: City nCDenton Materials Management Department 9O)B Texas Street Denton, Texas 7t2Oy vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Supplier, shall he considered primary coverage uyapplicable. viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall carry Umbrella or Excess Liability luouruuuu for any differences in moumtm specified. If Euocso CimhUby Insurance /a provided, d shall follow the form of the primary coverage. ix. The City shall bcentitled, upon request, azaoagreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law ur regulations binding upon either ofthe parties hereto or the underwriter un any such policies. x. The City reserves the right 0n review the insurance requirements set forth during the effective period of the Contract and to make reuoouob}c adjustments N luouruuue coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Supplier. nL The Supplier shall not cause any insurance 1obe canceled nor permit any insurance to lapse during the term ny the Contract oram required io the Contract. xii.Tbe Supplier shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles nr self-insured retentions shall he disclosed ou the CertifivateofInsurance. xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract, xiv. The insurance coverage's specified iu within the solicitation and requirements are required minimums and are not intended 10 limit the responsibility or liability of the Supplier. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action &asserted against the Supplier which arises under or concerns the Contract, or which could have o material adverse affect nu the Supplier's ability W perform thereunder, the Supplier shall give written notice thereof totheCdyn/dbinteu()0)uoleudurduyuaftc receipt of notice 6ythe Supplier, Such notice 0o the City 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 whom such claim is being asserted. Such uodou abaU he delivered personally or by mail and abu]) be sent to the City and W the Denton City Attorney. Pnrouool delivery oothe City Attorney shall ho10 City 8aJL 215 East McKinney Street, Denton, Texas 76201. 11910��� 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the Supplier to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code, 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants to the City that: (i) the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Supplier in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Supplier does not know of any valid basis for any such claims. The Supplier shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Supplier's breach of any of Supplier's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co- counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Supplier. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Supplier may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know -how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information "). Supplier acknowledges and agrees that the Confidential Information is the valuable property of the City and /or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and /or its licensors. The Supplier (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Supplier promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Supplier agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Supplier agrees that upon their creation, such deliverables shall be considered as work made - for -hire by the Supplier for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made - for -hire, the Supplier hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made - for -hire, the Supplier agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work - made -for -hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. RFP 5392 C. Additional Assignments. The Supplier further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem uouommary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protecdon\|eUeropateut,oraoyoimUur6g}uniuouyuuduUuoumtrieeuud in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive righ� title, and interest in and to the deliverables. The 8opp|ior`o obligations to execute, uckunw|odgo, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 u., h., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not ucok to obtain copyright protection, ommk work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Supplier agrees to treat the same as Confidential Information under the terms of Paragraph 37above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included iuu report iu any form, the source shall he idou6God. 40. ADVERTISING: The Supplier shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except W the extent required bylaw. 41. NO CONTINGENT FEES: The Supplier warrants that no person or xeUia8 agency has been employed or retained to solicit or souun: the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial o, selling agencies maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City shall have the righ� in addition to any other remedy available, to cancel the Contract without liability and to deduct from any umnu,ko u*od to the Supplier, or otherwise recover, the full amount of such commission, percentage, brokerage orcontingent fee. 42. GRATUITIES: The City may, by written notice in the Supplier, ouuce1 the Contract without liability if it is determined by the City that gratuities were offered or given by the Supplier or any ugoo1 or royreneo1u1ivn of the Supplier to any officer or employee of the City of Denton with u view tovvm6 securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. lu the event the Contract io canceled hythe City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Supplier 6u providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST 0VCONTRACTS: No officer, employee, independent uououbout, or elected official of the City who is involved in the development, evaluation, or process of the pedo/muuuo of any solicitation obuU have u 6ounoioJ interest, direct or indirect, in the Contract resulting from that solicitation. Any *U1b/1 violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Supplier shall render the Contract voidable by the City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B). 44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Supplier's services shall be those of an independent supplier. The Supplier agrees and understands that the Contract does not grant any rights orprivileges established for employees of the City of Denton, Texas for the purposes ofincome tax, withholding, social security taxes, vacation or sick leave benefits, worker's oompcunubnu,oranymbcrCdyomp|oyeeheneUb.TbcCityyba)mtbuvcnupovioiouuuduootrn)of the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services hereunder according tothe attached specifications at the general direction ofthe City Manager ofthe City of Denton, Texas, or his designee under this agreement. 45. The Contract shall hebinding upon and ensure to the benefit ofthe City and the Supplier and their respective successors and mmigun provided however, that no right ocinterest in the Contract shall be assigned and unobligation shall 6e delegated 6y the Supplier without the prior written consent of the City. Any attempted uxxiAunueu1 or delegation by the Supplier shall be void unless uzudc in conformity with this paragraph. The Contract io not intended 0o confer rights orbcocfitsnu any person, fionor entity not u party hereto; it RFP 5392 being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Supplier or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Supplier invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision - making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Supplier agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken RFP 5392 provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which io the essence o[ the Contract hc determined tnhnvoid. 5I HOLIDAYS: The following holidays are observed hy the City Now Year's Day (omorvod) MLK Day Memorial Day 4th mfJuly Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (obocrvcd) Christmas Day (nhyorvnd) New Year's Day(observed) IfoLegal Holiday falls on Saturday, bwill be observed on the preceding Friday. IfuLegal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation wbu| he between 8:00 mu and 4{0 pm. Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries nr work performance not within the normal hours o{ operation must be approved hy the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions oC the Contract that impose continuing obligations oo the parties, including but not limited 0othe wuroonty, indemnity, and confidentiality obligations of the parties, obuU survive the expiration or termination of the Contract. 54. OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub-awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting o Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated hy the General Services Administration List o[ Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. EgnuJ Employment Opportunity: No 0Ofe/nr, or 0fferor'n agent, ohuU engage in any discriminatory employment practice. No person obnK on the grounds of race, sex, age, disubddy, creed, color, genetic teo6u& or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from dbioDFQ. B. Americans with Disabilities Act (ADA)Compliance: No Offeror, or0fferor`aagent, ebJl engage iu any discriminatory employment practice against individuals with disabilities uodcfined in the AD&. 5b. BUY AMERICAN ACT-SUPPLIES (Applicable ¢o certain federally funded requirements) The following federally funded requirements are uppOoub1n, in addition to the specific federally funded requirements. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (l) For components purchased hythe Supplier, the acquisition cost, iuo|mbog transportation costs 0n the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether oc not a duty-free entry certificate inimsued);or (2) For components manufactured by the Supplier, all costs associated with the manufacture of the component, including transportation costs as described iu paragraph ())oy this dofiudion` plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" meuon- (l)Aouomunubmturcd end product mined or produced iu the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Supplier shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate ", 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this solicitation, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded supplier or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the supplier. 59. PREVAILING WAGE TES: All suppliers will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. httD://www.access.er)o.v-ov/davisbacon/t,x.htinI 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Supplier must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Supplier shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Supplier is responsible for both federal and State unemployment insurance coverage and standard Worker's Compensation insurance coverage. Supplier shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Supplier or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Supplier's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug - free work environment; and the final rule, government -wide requirements for drug -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the supplier shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Supplier and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Supplier shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64, FORCE MAJEURE: The City of Denton, any Customer, and the Supplier shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Supplier shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance. 65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. FANOW "I EXHIBIT C CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. 7 OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a ,Date person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental ''Received entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Dame of person who has a business relationship with local governmental entity. 2 gry Check this box if you are filing an update to a previously filed questionnaire. L_9 (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 71" business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? El Yes D No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? El Yes El No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? 0 Yes E:] No D. Describe each affiliation or business relationship. 4 . . ...... .._._..... ....... ............... ............... .....�. Signature of person doing business with the governmental Date erttit RFP 5392 Y a W N 0: C m o a O a CL a .� � aoa o 0 0 0 N H N -4 0 ry Qi O 0 Z W W m w U U V U rn r, m Z 00 r4 r-I O O N y N W W m m co co a a ¢ Q '¢ Q O O N LU s > Q Y C13 Lr) 0 ci ap c I 0o O a o K J co a O O LL O Z cc O a N O a O LL m = a 0 O Q O W~ Z N w a w O o: LU Q D W ? °o g °o O Q�Q V% '.... 0 m CFO- 0 N u7 t ~ F H Fr,,:' N 0 V > > a = 0 0 0 0 Ur-11 � �n0uMU xe Q N m� d 0� 0 N 0 m m In m 00 00 00 '00 O 00 10000 m 000 000 0`00 0`00 U LL N N Q N N N N O W ',, W W W a N 7 Q m °1' 1D v `n � 'C WC G ems+ V1 l0 ri N m V 3 a--1 N N N N -4 d Z riswr� v a`r o QL 0 0 0 0 0 0 u ra �+ m m m c n d> p O O z 0 00 m m m .1 N 0n m N v1 00 .1 LL a a Ln a rn 00 r� m s RL :9M3o O � u th 3 M� c IR cq N O. U) N 1, 0) l0 C Y a W N 0: C m o a O a CL a .� � aoa o 0 0 0 N H N -4 0 ry Qi O 0 Z W W m w U U V U rn r, m Z 00 r4 r-I O O N y N W W m m co co a a ¢ Q '¢ Q O O N LU s > Q Y C13 Lr) 0 ci ap c I 0o O a o K J co a O O LL O Z cc O a N O a O LL m = a 0 O Q O W~ Z N w a w O o: LU Q D W ? °o g °o O Q�Q V% '.... 0 m CFO- 0 N u7 t ~ F H Fr,,:' N 0 V > > a = 0 0 0 0 Ur-11 � �n0uMU xe Q N m� d 0� 0 N 0 m m In m 00 00 00 '00 O 00 10000 m 000 000 0`00 0`00 U LL N N Q N N N N O W ',, W W W a N 7 Q m °1' 1D v `n � 'C WC G ems+ V1 l0 ri N m V 3 a--1 N N N N -4 d Z riswr� v Exhibit D O• . RFP #5392 — Distribution Hardware, Connectors, Arms, and Accessories Michael Hammers RFP 5392 Exhibit D City of Denton VVESCO RFP #5392 Distribution Hardware, Connectors, Arms, Accessories DU"'UTUUIS November 19, 2013 Introduction — Executive Summary WESCO is pleased to provide our proposal to the City of Denton for Distribution Hardware. Our team has thoroughly reviewed the requirements of this solicitation and will provide a fully compliant support model. This Executive Summary will address each Technical Specification listed in Exhibit 2. Purpose WESCO will provide shipment of the requested products to the City's centralized distribution center. We understand that orders will be placed on an as- needed basis over the contract terms. Proposals Our response includes information to address each question as listed. Our pricing includes all standard delivery costs to the City's distribution center. Special delivery services as may be required by the City will be quoted at the time of order. We understand that item pricing is mutually exclusive. Quality Control As a distributor, WESCO periodically reviews the quality of the products and services provided by our suppliers. Action will be taken, if needed, to ensure the City receives quality products and services. We understand the City's rights to inspect products and require additional documentation. Warranty WESCO will pass through all original manufacturer warranties to the City and assist in warranty resolution when needed. We will immediately replace any defective items upon notification by the City and work with the manufacturers to facilitate the returns process as needed. Special Delivery Requirements WESCO will provide delivery of all goods within two weeks. We have noted any exceptions to this policy in our response. Acceptable Manufacturers WESCO has provided quotes for only the specific manufacturers and part numbers provided in Exhibit 1. Our team will work with the City in managing updates to these part numbers or manufacturers. We can also proactively offer substitute products that may offer an advantage to the City. This will only be done with the City's approval. Page I 1 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton RFP X15392 Distribution Hardware, Connectors, Arms, Accessories 11119710RU110 "'1,1111 November 19, 2013 Relevant Experience and. Capabilities The responding individual or business shall provide pertinent information about the individual or business and related experiences) with the requested products or services. Indicate what resources the individual or business will have available to allocate to the project. The respondent must currently be licensed to perform work in the State of Texas. A copy of current licensing must be included in your proposal. Relevant experiences and capabilities of the individual or business team members and team as a whole will be rated by the City by a review of both completed and on -going assignments, years of relevant experience in communities of comparable size, and credentials; greater weight will be given to project experience within the past five (5) years containing the team members proposed: a. Five (5) years experience with similar products or services, provide a description. WESCO Distribution is one of the country's largest electrical distributors with over 90 years of experience providing distribution hardware and accessories. Recognizing the unique needs of the utility industry, the City will be supported through our Utility Group and a dedicated local utility branch. b. A standard license or certification, if applicable. We have attached our State of Texas certificate. c. A defined level of industry knowledge and understanding The City will be supported through WESCO's Utility Group and dedicated utility branch location on Irving, TX. The Utility Group conducts nearly $1 billion in business annually with public power and IOU customers across the country. WESCO's extensive experience in supplying distribution hardware also leads to opportunities for process improvements. WESCO utilizes LEAN Value Creation (LVC) as the continuous improvement program to identify process improvements and other value creation strategies. This program focuses our LEAN six sigma resources on specific optimization projects to achieve immediate and substantial results. LEAN has been applied Internally since 2003, and has led to an industry leading low cost operational expense as benchmarked by the industry association, NAED. LEAN is deployed externally, providing tens of millions of dollars' worth of savings to our clients. Page I 1 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton WESCO RFP #5392 Distribution Hardware, Connectors, Arms, Accessories DuMMUTIOW November 19, 2013 Based on this experience, WESCO is prepared to offer the City one free LEAN event as a way to demonstrate our value in providing process efficiencies. The overall strategy for LEAN is to leverage WESCO resources and best practices to drive incremental process improvement savings for the City. Below are examples of LVC programs recently completed with major customers: Inventory Optimization: Deployed Inventory Optimization program to reduce inventory by over $14M (9.3 %). Category Management: Deployed WESCO's Category Management program to deliver over $6M in annual savings through product standardization, substitution, and increased supplier leverage. LEAN Warehouse: Assisted in the material storage layout design, business process design, and material handling equipment specification to support moving to a new warehouse and operations center. d. The Proposing individual or business must be registered in the State of Texas, or the County of Denton, to provide the services required for the project, and the individual or business must have all licensure required by the State to provide any services required under this contact. Registration and licensing requirements for specialized services may be met through the use of subcontractors. If subcontractors are used, information on the subcontractor must be included in the response to this RFQ. Use of subcontractors does not relieve the general or primary contractor from full responsibility for the project performance. WESCO is registered and fully licensed to conduct business in Texas and has 30 company -wide branch locations in the state. WESCO will not be utilizing any subcontractors to perform the services of this contract. e. Certificate of Status — Issued by the Texas Secretary of State A "certificate of status" is a certificate issued by the secretary of state that serves as official evidence of an entity's existence or authority to transact business in Texas. A certificate of status provides a statement of an entity's status, as well as the entity's current legal name and date of formation or registration. How do I obtain information about filing with the State of Texas, or obtaining copies or certificates bona the Secretaty of Sfafe? U'ebp e; lit w w m S_o tate t �usl .or� Phone 512 - 463 -5578; or email ,cprpgett@sos. state- tx.us. We have attached our State of Texas certificate. Page 1 2 WESCO Distribution, Inc. Proprietary and Confidential 1:492* X Exhibit D City of Denton WESM RFP #15392 Distribution Hardware, Connectors, Arms, Accessories IMSTM[ v ONO November 19, 2013 a. Respondent shall detail any and all relevant history of litigation involving public projects. WESCO is not currently involved in any litigation that would affect our service to the City. b. Respondent shall detail any and all exceptions within the proposal response. We have identified any applicable exceptions as part of "Attachment M. c. The individual or business must disclose any business relationship that would have an effect, of a conflict of interest. A conflict of interest statement must be signed as part of the contract negotiated with the awardee(s). (Attachment G) WESCO is not involved in any business relationships that would be defined as a conflict of interest for this proposal. We have attached a signed "Conflict of Interest" Questionnaire. Page I 1 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton WESCO RFP #5392 Distribution Hardware, Connectors, Arms, Accessories DISFRIiBUTION" November 19, 2013 AffAtXffiN9XX- Business Overview 1. Contractor Name: WESCO Distribution, Inc. 2. Address (Principal Place of Business): WESCO's global headquarters address: 225 West Station Square Drive Suite 700 Pittsburgh, PA 15219 3. Does your company have an established physical presence in the State of Texas, or the City of Denton? Yes. WESCO operates 30 branch locations across Texas including 4 dedicated solely to supporting our utility customers. The Irving, TX utility branch will be the primary support location for the City. 4. Tax Payer ID#: 25- 1723345 5. Email Address of Primary contact: Michael Hammers, Outside Sales Representative a,,�, n,,,,,,,;,,,,, - ,,,,,,,,,;,,,,,,.,.esco.corn[ 6. Website Address: w.. n.wesco.com. (corporate) ,;,.vre�codirect.coni.. (e- commerce portal) 7. Telephone: (972) -765 -1948 Page 1 1 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton RFP 115392 Distribution Hardware, Connectors, Arms, Accessories DPWRIv UTIO O November 19, 2013 8. Fax., 9. Other Locations: The City will be served primarily from WESCO's Irving, TX branch. Backup support will be provided from WESCO's entire network of seven distribution centers and over 400 branch locations across the country. Fifty of these branch locations are dedicated solely to supporting the needs of utility customers. The following map details our utility- specific branch network: 10. Organization Class: Partnership Individual Corporation Association WESCO Distribution is a Corporation. 11. Date Established: WESCO was originally founded in 1922. The company has operated under its current name since 1994 ( WESCO Distribution, Inc.). Page 1 2 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton E 13CO RFP #x5392 Distribution Hardware, Connectors, Arms, Accessories DWRIBMIONG November 19, 2013 12. Former Business Name: WESCO was originally a division of Westinghouse until 1994. 13. Date of Dissolution: N/A 14. Subsidiary of WESCO Distribution, Inc. is a wholly owned subsidiary of WESCO International, Inc. 15. Historically Underutilized Business: Yes or No No. 16. Principals and Officers: Please detail responsibilities with the name of each principal or officer. President /CEO John Engel Chief Operating Officer Steve Van Oss Chief Financial Officer Ken Parks Treasurer Daniel Brailer 17. Key Personnel and Responsibilities: Please detail responsibilities with the name of each key personnel. Jim Cameron, Vice - President Central Region Each of our strategic alliance accounts receive executive level visibility through a standardized performance and review program designed to ensure high levels of success and promote personal accountability. Our experience has shown that Page 1 3 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton Mike Hammers, Outside Sales Representative Outside Representatives are trained to solve technical product issues in the field. They are our deepest resource for technical expertise. Representative responsibilities include the following: • New product introductions- onsite technical support • Onsite support for engineering and operations • Current regulatory, environmental, safety updates • Plan and execute outage support services • Product training and application guidance Daniel Copeland, Inside Sales Representative The Inside Service Representatives are the principal point of contact for the City's ordering processes. Representatives will be located at WESCO's Irving, TX branch and will have the following responsibilities: • Quote and process all assigned spot orders • Provide frontline technical product /service support • Expedite all assigned orders (manufacturer expediting) • Process /Ensure delivery of emergency orders • Assist in the inventory planning process • Plan and execute outage /emergency response support services • Resolve disputes and issue Return Materials Authorizations (BMA's) and credits • Deliver the highest levels of customer service through timely responses and focus on the details that mitigate unnecessary duplication. Bruce Foster, Branch Operations Manager The Branch Operations Manager oversees the day -to -day operations of the branch and ensures the branch -level key performance indicators are achieved. Duties include: ® Management of local branch inventory 0 Consolidation of materials for project shipment 0 Freight carrier selection and oversight 0 Performance and cost optimization 0 Customer and supplier interaction Page 1 4 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton WESM RFP #5392 Distribution Hardware, Connectors, Arms, Accessories Dis7 mr . oNo November 19, 2013 18. Number of Personnel by Discipline: WESCO employs over 7,000 people globally which includes nearly 150 in the State of Texas. The numbers below represent personnel assigned specifically to support this contract. Discipline Number of Staff # Licensed or Certified Sales 4 Operations 1 19. Services Provided by Contractor.• a. Please provide a detailed listing of all services that your company provides. WESCO is the nation's largest provider of products and supply chain services for the utility industry. Products Wire, Cable, Conduit, Raceway, Junction Boxes, Enclosures, Grounding Devices, Connectors & Lugs, Fittings & Fasteners, Tape, Cable Ties & Markers, Receptacles & Switches, Fuses, Circuit Breakers, Controls, Relays, Timers, Transformers, Fans & Ventilation, Hand & Power Tools, MRO Supplies, Surge & Power Protection, Lamps (bulbs) and Light Fixtures. Services • Dedicated alliance management • Back office systems integration • Emergency storm support • Facility outage support • Product sourcing and category management • Project services • Vendor managed inventory • Warehouse management and logistics • Kitting services • LEAN Value Creation Page 1 5 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton WESCO RFP #5392 Distribution Hardware, Connectors, Arms, Accessories u. ISAT .ffluriom November 19, 2013 b. Please detail your prior experience working on similar projects with Texas governmental entities. WESCO has extensive experience with service the needs of public and non - governmental utility customers in Texas. We have been a product and service supplier to Texas utilities, including: Lower Colorado River Authority: Substation and transmission hardware * CPS Energy: Distribution transformers, stocking items, inventory management VMI, partnering with ABB /PowerPartners. Pedernales Electric Cooperative: Blanket order business, inventory stocking. San Marcos Utilities: Utilizing Texas BuyBoard, transformers, lighting, wire, stocking wire or transfers * Austin Energy: Distribution hardware, Stocking and inventory man, LED roadway lighting. AEP: Transmission and generation MRO hardware and integrated supply services. Entergy: Transmission and generation hardware and integrated supply services. c. Please detail your similar services provided over the past two (2) years. Each of the customers listed above represents business conducted within the past two years. In addition to local governmental agencies, WESCO has extensive experience in the commercial sector with large utilities across the country. The following are some recent service examples: Tennessee Valley Authority WESCO is the Lead Integrator for all nuclear, hydro, and fossil generation MRO materials, including the management of eleven major second -tier suppliers. Duke Energy WESCO is the lead Integrator for all T &D tactical materials (including both electrical and gas utilities) and all nuclear, hydro, and fossil generation MRO materials, including the management of four major second -tier suppliers. Page 1 6 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton • CPS Energy - Distribution Transformer Partnership • Lower Colorado River Authority - Utility hardware and fiber optic cable • Austin Energy - LED lighting e. Please detail these services, including, the nature of the services provided, the scope of the activities, the organizations for which the services were provided, the dates of the projects, and the documented benefit to the governmental entity. CPS Distribution Transformer Partnership utilizing ABB and Power Partners Contract: #3047265 Start Date: Late 2012 End Date: Five years with a five year extension provision Services: VMI services with a requirement to stock both single phase pads and overhead transformers. We also use production planning for CPSE's Three Phase Transformer needs to deliver their units in 6 -8 weeks. Benefits: Improvement in on- time delivery of three phase pads. LCRA Contract for Utility Hardware and Fiber Optic Cable Contract: #3715 Start Date: June 2013 End Date: May 2016 Services: We have a partnership with LCRA on substation and transmission hardware that includes multiple vendors. We also supply fiber optic cable. Benefits: Production planning assistance to ensure that material arrives on time, especially with long lead time material like OPGW fiber. Austin Energy LED lighting contract Contract: MA- 1100- GA120000090 Page 1 7 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton WESCO RFP #5392 Distribution Hardware, Connectors, Arms, Accessories DSMBUTION November 19, 2013 Start Date: June 2012 End Date: June 2014 Services; This is a multimillion dollar contract for LED Roadway fixtures and we work with Austin Energy on lighting design layouts. We also utilize VMI for their fixtures and work with production planning to ensure that we have material on hand for their contractors. Benefits: Just in time inventory management and production planning assistance. 20. Has your company filed or been named in any litigation involving your company and the Owner on a contract within the last five years under your current company name or any other company name? If so provide details of the issues and resolution if available. Include lawsuits where Owner was involved. As a large Fortune 500 company, WESCO is sometimes named a party in ligation for various reasons. We are not currently involved in any litigation that would affect our support for the City. 2 i. Please provide at least (3) three references (preferably municipalities) and contract amounts. Include project description, contact names, position, and organization name and telephone number for each reference listed. See attachment F. We have provided our references as part of Attachment F. 22. Have you ever defaulted on or failed to complete a contract under your current company name or any other company name? If so, where and why? Give name and telephone number of Owner. To the best of our knowledge, no. As a large public company with many divisions, material contract defaults can be found in our public filings on www.wesco.com. 23. Have you ever had a contract terminated by the Owner? If so, where and why? Give name and telephone number (s) of Owner (s). To the best of our knowledge, WESCO has not had a contract terminated by a customer similar to the City. As a large public company with many divisions, material contract terminations can be found in our public filings on www.wesco.com. Page 1 8 WESCO Distribution, Inc. Proprietary and Confidential IV92*RX Exhibit D City of Denton VVESCO RFP #5392 Distribution Hardware, Connectors, Arms, Accessories MYrR,Iu. YTTON11 November 19, 2013 24. Has your company implemented an Employee Health and Safety Program compliant with 29 CFR 1910 "General Industry Standards" and /or 29 CFR 1926 "General Construction Standards" as they apply to your Company's customary activities? L. o.. y; ieve q = 1 Q a;lge 1 926 Yes. WESCO's Health and Safety program meets general OSHA industry standards. 25. Resident/Non- Resident Bidder Determination: Texas Government Code Section 2252.002. Non - resident bidders. Texas law prohibits cities and other governmental units from awarding contracts to a non- resident firm unless the amount of such a bid is lower than the lowest bid by a Texas resident by the amount the Texas resident would be required to underbid in the non - resident bidders' state. In order to make this determination, please provide the name, address and phone number of.• a. Proposing firms principle place of business: WESCO Distribution, Inc.'s headquarters is located in Pittsburgh, PA. b. Company's majority owner principle place of business: WESCO is a publicly traded corporation. Ultimate Parent Company's principle place of business: WESCO Distribution, Inc. is a subsidiary of WESCO International, Inc. whose headquarters is also located in Pittsburgh, PA. Page 1 9 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 LA Exhibit D City of Denton 'ESC RFP #5392 Distribution Hardware, Connectors, Arms, Accessories November 19, 2013 J :1 Please list three (3) Government references, other than the City of Denton. who can verify the quality of service your company provides. The City prefers customers of similar size and scope of work to this proposal. GOVERNMENT /COMPANY NAME: LOCATION: CONTACT PERSON AND TITLE: REFERENCE ONE Knoxville Utilities Board Knoxville, TN Philip Reed (CPM) Purchasing /Contracts TELEPHONE NUMBER: Office 865 - 558 -2512 philip.reed ®kub.org SCOPE OF WORK: Distribution Equipment (excluding trxfiners, poles, metering) CONTRACT PERIOD: Original Five (5) Year Contract (2008 -2012) Three (3) Year Extension (2013 -2015) REFERENCE TWO GOVERNMENT /COMPANY NAME: CPS Erier g LOCATION: San Antonio, CONTACT PERSON AND TITLE: Brenda Condrin TELEPHONE NUMBER: 210.353.2898 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Senior Buyer Page 1 1 Exhibit D City of Denton WESCO RFP #5392 Distribution Hardware, Connectors, Arms, Accessories DIM °s:BI °ION01 November 19, 2013 SCOPE OF WORK: Distribution Transformer Partnership with ABB /Power Partnersmmm mmITm w w_o CONTRACT PERIOD: 5 years extendible to 10 years REFERENCE THREE GOVERNMENT /COMPANY NAME: L(", LOCATION: Austin, TK , ...._�... _.._ .........._..� .........�...� CONTACT PERSON AND TITLE: Matthew Jan TELEPHONE NUMBER: 512.356.6446 SCOPE OF WORK: LTA Partnership on Substation and Transmission Hardware CONTRACT PERIOD: 3 Years Page 12 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton WESCO RFP #5392 Distribution Hardware, Connectors, Arms, Accessories DISTMMMON41 November 19, 2013 Submit pricing for requested products or services as provided in Exhibit 1. Pricing shall be provided in hard copy and emailed in Excel to .ellbl.lil.ld..s.@..c.i: i)ii.],(.-. ri.t co.ji[ before the proposal due date. Page I I WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton W IF RFP #5392 Distribution Hardware, Connectors, Arms, Accessories November 19, 2013 �M`..., TEXAS SALES AND USE TAX PERMIT Th19 r;r¢ c � rr�s1 If /rdr,Ira1I7Idi ri �c.-f l'n,, ,io« rril�,f Iro / o , ,, v f1�1 Zti.f� ",,, „ ✓61,91"rfnl, l+l --J&w rw, NOVO war,p6 oro,✓�{ Gz, ,.o rr, � rm�.�,c on l M.� 8 6 f1p °u D 111 5M A W F, S,l'li4's,'hWil"" 14' A r, xraref k is „ti lq 1, fiwlf Y"OPron� 'rr'rB r rc 7 i- r A r *;,ry I re rhN is 1# 91 fl 1 ) x "n ,,ODY "I :=d f,drl/,,f fIl,#,),wr /0/ ,1 'Jiw,. f G, vmlll"f1 AX)r(, 0", ii /f [of.f L, ra/,h q V,. Iovw, ,f ,,, �'v ,r!;ry r e1,//n�:ID „ ., 2!✓,, %p( f;,zN1, lq,o e n ;dm //, el ,f f, ;ry JV, r.:r1e/ /rr i,�n0- n v, avnv u„r-..<, Lai. /r ,;,, ri., r, .,;r ;a, !11111 /:Y �r ;";'.;. .0 (rrr, A ol, /N I,9 oOG2lrni/ ; Exhibit D City of Denton a. Prior to commencement of the services, the City and selected individual or business will conduct an initial meeting to review the overall scope, schedule, deliverables and planning process to implement a successful program. b. The awarded Contractor shall provide to the City of Denton, detailed reports of time and services provided to the City on a monthly basis. c. Staff available to assist the selected provider is limited; the proposals submitted should not anticipate extensive staff assistance during equipment repairs or maintenance. WESCO acknowledges the above requirements. Page 1 1 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D WESCO RFP #5392 Distribution Hardware, Connectors, Arms, Accessories DIVRIBUTION41' November 19, 2013 � ;j ZO) ;101-770 a WO) D) Z4 0 (OR Any exceptions taken to this RFP must be listed on the lines below. If there are no exceptions, please sign where indicated at the bottom of the page. Item # Description VVESCO Distribution, Inc ----------------- - - - - - - - - - - - - - - Signature Company Signature &� � RITIMMITMI RFP 5392 November 18, 2013 Date MI ME Exhibit D City of Denton WESCO RFP X15392 Distribution Hardware, Connectors, Arms, Accessories D r'WN a7rON" November 19, 2013 ,, - ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF DENTON The undersigned agrees this RFP becomes the property of the City of Denton after the official opening. The undersigned affirms he has familiarized himself with the local conditions under which the work is to be performed; satisfied himself of the conditions of delivery, handling and storage of equipment and all other matters that may be incidental to the work, before submitting a proposal. The undersigned agrees, if this proposal is accepted, to furnish any and all Items/services upon which prices are offered, at the price(s) and upon the terms and conditions contained in the Specifications. The period for acceptance of this Proposal will be ninety (90) calendar days unless a different period is noted, The undersigned affirms that they are duly authorized to execute this contract, that this RFP has not been prepared in collusion with any other Bidder, nor any employee of the City of Denton, and that the contents of this RFP have not been communicated to any other proposer or to any employee of the City of Denton prior to the official opening of this bid. Respondent hereby assigns to the City any and all claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 USCA Section 1 et sea., and which arise under the antitrust laws of the State of Texas, Tex. Bus. & Com. Code, Section 15.01, et seq. The undersigned affirms that they have read and do understand the specifications and any attachments contained in this RFP package. The undersigned agrees that the RFP posted on the website are the official specifications and shall not alter the electronic copy of the specifications and /or pricing sheet (Exhibit 1), without clearly identifying changes. Page 1 1 WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 Exhibit D City of Denton WESCO RFP #5392 Distribution Hardware, Connectors, Arms, Accessories MSTRIBUTION'D November 19, 2013 I certifv tbal I liave. made, no willfial in thiR Prnpn".1 Submision, nor havc I vVid-ffield information in Tny statements and answers to questions. I am ai%'Varc� (I'lal, tju- inform. ation Fpvertu by me in. this proposal wiJI be investigated, with my fill) perrnission, and that any inisreprew.ntatioins or omissioris may cause my pro rx,PsW to be rejected, NAMM AND ADM USS OF COMPANY: REIRMSENTATIVE: 57 7'X Tel. No. Email. . . .... z!'&�ee ce At WESCO Distribution, Inc. Proprietary and Confidential RFP 5392 AUTHORIZED Signatime 3 Date "" "( / a � , Name . ...... " -'" .... ....... Na' 4 Title Fax No. Page 1 2 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Curt Arndt at 349 -7342 ACM: Bryan Langley � -A SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding an initial one (1) year contract with the option to extend for two (2) additional one (1) year periods for the supply of traffic signal poles for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (RFP 5429 - awarded to Structural and Steel Products, Inc. in the annual estimated amount of $869,430 for a three (3) year not -to- exceed amount of $2,608,290). RFP INFORMATION This RFP is for traffic signal poles, mast arms, and associated hardware to be used for new Capital Improvement Project traffic signal constriction, replacement of aging and damaged poles, and any emergency needs for public safety. Requests for Proposals were sent to twenty two (22) prospective suppliers of this item. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Staff is not aware of any local vendors that supply this product. One (1) proposal was received from Structural and Steel Products, Inc. (Exhibit 1). The proposal was evaluated based upon published criteria including performance, delivery, quality, reliability, and price (Exhibit 2). Based upon this evaluation, and the proposer's history of providing quality products to the City, Structural and Steel Products, Inc. was determined to be the best value for the City. RECOMMENDATION Award to Structural and Steel Products, Inc. in the annual estimated amount of $869,430 for a three (3) year not -to- exceed amount of $2,608,290). PRINCIPAL PLACE OF BUSINESS Structural and Steel Products, Inc. Fort Worth, TX. Agenda Information Sheet February 4, 2014 Page 2 ESTIMATED SCHEDULE OF PROJECT This is an initial one year contract with options to extend the contract for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION Replacement of damaged poles will be funded from account 352001.6520. Installation of new poles relating to Capital Improvement Projects will be funded from the appropriate project account at the time the installation occurs. EXHIBITS Exhibit 1: Pricing sheet Exhibit 2: Evaluation Sheet Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance 1 -.CIS -File 5429 Exhibit 1 Structural and Steel Products, Respondent's Name: Inc. RFP 5429 - Pricing Sheet for SUPPLY OF TRAFFIC SIGNAL POLES The respondent shall complete the following section, which directly corresponds to the specifications. The contractor shall not make changes to this format. Product Proposal Pricing (FOB DESTINATION): Item EST. ANNUAL QTy UOM DESCRIPTION ZINC COATING ONLY ITEMS 1 -49 Unit Price Extended Price Estimated Delivery ARO (Days) 1 4 EA REPLACEMENT MAST ARM VERTICAL POLE, COMBINATION 30' POLE, 17" BOLT CIRCLE, FOR A 30 -A FOOTING, 80MPH $ 3,143.00 $ 12,572.00 70 -84 Days 2 2 EA MAST ARM 15', RIGID MOUNTED, FOR ITEM 1 $ 873.00 1 $ 1,746.00 70 -84 Days 3 2 EA MAST ARM 20', RIGID MOUNTED, FOR ITEM 1 $ 873.00 $ 1,746.00 70 -84 Days 4 2 EA MAST ARM 25', RIGID MOUNTED, FOR ITEM 1 $ 1,069.00 $ 2,138.00 70 -84 Days 5 2 EA MAST ARM 30', RIGID MOUNTED, FOR ITEM 1 $ 1,245.00 $ 2,490.00 70 -84 Days 6 2 EA MAST ARM 32', RIGID MOUNTED, FOR ITEM 1 $ 1,245.00 $ 2,490.00 70 -84 Days 7 4 EA LUMINAIRE 8' ARM FOR ITEMS 1 $ 244.00 $ 976.00 70 -84 Days 8 4 EA ILSN 9' ARM FOR ITEM 1 $ 1,029.00 $ 4,116.00 70 -84 Days 9 4 EA BASE COVER FOR ITEM 1 $ 317.00 $ 1,268.00 70 -84 Days 10 4 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 1 $ 408.00 $ 1,632.00 70 -84 Days 11 4 EA REPLACEMENT MAST ARM VERTICAL POLE, COMBINATION 30' POLE, 19" BOLT CIRCLE, FOR A 36 -A FOOTING, 80MPH $ 3,472.00 $ 13,888.00 70 -84 Days 12 2 EA MAST ARM 35', RIGID MOUNTED, FOR ITEM 11 $ 1,383.00 $ 2,766.00 70 -84 Days 13 2 EA MAST ARM 40', RIGID MOUNTED, FOR ITEM 11 $ 1,717.00 $ 3,434.00 70 -84 Days 14 2 EA MAST ARM 45', RIGID MOUNTED, FOR ITEM 11 $ 2,571.00 $ 5,142.00 70 -84 Days 15 2 EA MAST ARM 48', RIGID MOUNTED, FOR ITEM 11 $ 2,571.00 $ 5,142.00 70 -84 Days 16 4 EA LUMINAIRE 8' ARM FOR ITEMS 11 $ 244.00 $ 976.00 70 -84 Days 17 4 EA ILSN 9' ARM FOR ITEM 11 $ 1,032.00 $ 4,128.00 70 -84 Days 18 4 EA BASE COVER FOR ITEM 11 $ 317.00 $ 1,268.00 70 -84 Days 19 4 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 11 $ 759.00 $ 3,036.00 70 -84 Days 20 8 EA STRAIN POLE, 34' POLE, 21" BOLT CIRCLE, FOR A 36 -B FOOTING, 100 MPH $ 3,933.00 $ 31,464.00 70 -84 Days 21 8 EA LUMINAIRE 8' ARM FOR ITEM 20 $ 244.00 $ 1,952.00 70 -84 Days 22 8 EA ILSN 9' ARM FOR ITEM 20 $ 1,032.00 $ 8,256.00 70 -84 Days 23 8 EA BASE COVER FOR ITEM 20 $ 392.00 $ 3,136.00 70 -84 Days 24 8 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 20 $ 1,128.00 $ 9,024.00 70 -84 Days 25 4 EA REPLACEMENT MAST ARM VERTICAL POLE, COMBINATION 30' POLE, 27" BOLT CIRCLE, FOR A 48 -A FOOTING, 100 MPH $ 12,505.00 $ 50,020.00 70 -84 Days 26 2 EA MAST ARM 50', RIGID MOUNTED, FOR ITEM 25 $ 6,424.00 $ 12,848.00 70 -84 Days 27 2 EA MAST ARM 55', RIGID MOUNTED, FOR ITEM 25 $ 7,355.00 $ 14,710.00 70 -84 Days 28 2 EA MAST ARM 60', RIGID MOUNTED, FOR ITEM 25 $ 7,425.00 $ 14,850.00 70 -84 Days 29 2 EA MAST ARM 65', RIGID MOUNTED, FOR ITEM 25 $ 7,448.00 $ 14,896.00 70 -84 Days 30 4 EA LUMINAIRE 8' ARM FOR ITEMS 25 $ 244.00 $ 976.00 70 -84 Days 31 4 EA ILSN 9' ARM FOR ITEM 25 $ 1,032.00 $ 4,128.00 70 -84 Days 32 4 EA BASE COVER FOR ITEM 25 $ 383.00 $ 1,532.00 70 -84 Days 33 4 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 25 $ 1,773.00 $ 7,092.00 70 -84 Days 34 16 EA CITY STANDARD MAST ARM VERTICAL POLE $ 7,129.00 $ 114,064.00 70 -84 Days 35 16 EA 1st SECTION MAST ARM 20', FOR ITEM 34 $ 5,305.00 $ 84,880.00 70 -84 Days 36 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 25' $ 2,060.00 $ 4,120.00 70 -84 Days 37 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 30' $ 2,068.00 $ 4,136.00 70 -84 Days Exhibit 1 Structural and Steel Products, Respondent's Name: Inc. RFP 5429 - Pricing Sheet for SUPPLY OF TRAFFIC SIGNAL POLES The respondent shall complete the following section, which directly corresponds to the specifications. The contractor shall not make changes to this format. Product Proposal Pricing (FOB DESTINATION): Item EST. ANNUAL QTy UOM DESCRIPTION ZINC COATING ONLY ITEMS 1 -49 Unit Price Extended Price Estimated Delivery ARO (Days) 38 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 35' $ 2,215.00 $ 4,430.00 70 -84 Days 39 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 40' $ 2,367.00 $ 4,734.00 70 -84 Days 40 4 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 45' $ 2,589.00 $ 10,356.00 70 -84 Days 41 4 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 50' $ 2,815.00 $ 11,260.00 70 -84 Days 42 4 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 55' $ 3,040.00 $ 12,160.00 70 -84 Days 43 4 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 60' $ 3,265.00 $ 13,060.00 1 70 -84 Days 44 4 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 65' $ 3,492.00 $ 13,968.00 70 -84 Days 45 16 EA VERTICAL POLE LUMINAIRE SECTION FOR ITEM 34 $ 1,325.00 $ 21,200.00 70 -84 Days 46 16 EA ILSN 8' ARM FOR ITEM 34 $ 1,133.00 $ 18,128.00 70 -84 Days 47 16 EA LUMINAIRE TRUSS FOR ITEM 34 $ 1,304.00 $ 20,864.00 70 -84 Days 48 16 EA BASE COVER FOR ITEM 34 $ 388.00 $ 6,208.00 70 -84 Days 49 16 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 34 $ 2,013.00 $ 32,208.00 10 -14 Days Item ANNUAL QTy UOM DESCRIPTION POWDER COATING ONLY ITEMS 50 - 98 Unit Price Extended Price s ima e Delivery ARO (Days) 50 2 EA REPLACEMENT MAST ARM VERTICAL POLE, COMBINATION 30' POLE, 17" BOLT CIRCLE, FOR A 30 -A FOOTING, 80 MPH $ 3,275.00 $ 6,550.00 70 -84 Days 51 2 EA MAST ARM 15', RIGID MOUNTED, FOR ITEM 50 $ 929.00 $ 1,858.00 70 -84 Days 52 2 EA MAST ARM 20', RIGID MOUNTED, FOR ITEM 50 $ 929.00 $ 1,858.00 70 -84 Days 53 2 EA MAST ARM 25', RIGID MOUNTED, FOR ITEM 50 $ 1,163.00 $ 2,326.00 70 -84 Days 54 2 EA MAST ARM 30', RIGID MOUNTED, FOR ITEM 50 $ 1,364.00 $ 2,728.00 70 -84 Days 55 2 EA MAST ARM 32', RIGID MOUNTED, FOR ITEM 50 $ 1,364.00 $ 2,728.00 70 -84 Days 56 2 EA LUMINAIRE 8' ARM FOR ITEMS 50 $ 320.00 $ 640.00 70 -84 Days 57 2 EA ILSN 9' ARM FOR ITEM 50 $ 983.00 $ 1,966.00 70 -84 Days 58 2 EA BASE COVER FOR ITEM 50 $ 305.00 $ 610.00 70 -84 Days 59 2 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 50 $ 409.00 $ 818.00 10 -14 Days 60 2 EA REPLACEMENT MAST ARM VERTICAL POLE, COMBINATION 30' POLE, 19" BOLT CIRCLE, FOR A 36 -A FOOTING, 80MPH $ 3,615.00 $ 7,230.00 70 -84 Days 61 2 EA MAST ARM 35', RIGID MOUNTED, FOR ITEM 60 $ 1,520.00 $ 3,040.00 70 -84 Days 62 2 EA MAST ARM 40', RIGID MOUNTED, FOR ITEM 60 $ 1,875.00 $ 3,750.00 70 -84 Days 63 2 EA MAST ARM 45', RIGID MOUNTED, FOR ITEM 60 $ 2,777.00 $ 5,554.00 70 -84 Days 64 2 EA MAST ARM 48', RIGID MOUNTED, FOR ITEM 60 $ 2,777.00 $ 5,554.00 70 -84 Days 65 2 EA LUMINAIRE 8' ARM FOR ITEMS 60 $ 320.00 $ 640.00 70 -84 Days 66 2 EA ILSN 9' ARM FOR ITEM 60 $ 1,023.00 $ 2,046.00 70 -84 Days 67 2 EA BASE COVER FOR ITEM 60 $ 305.00 $ 610.00 70 -84 Days 68 2 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 60 $ 763.00 $ 1,526.00 10 -14 Days 69 2 EA STRAIN POLE, 34' POLE, 21" BOLT CIRCLE, FOR A 36 -B FOOTING, 100 MPH $ 4,196.00 $ 8,392.00 70 -84 Days 70 2 EA I LUMINAIRE 8' ARM FOR ITEM 69 $ 320.00 $ 640.00 70 -84 Days 71 2 EA ILSN 9' ARM FOR ITEM 69 $ 1,023.00 $ 2,046.00 70 -84 Days 72 2 EA BASE COVER FOR ITEM 69 $ 319.00 $ 638.00 70 -84 Days 73 2 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 69 $ 1,133.00 $ 2,266.00 10 -14 Days Exhibit 1 Structural and Steel Products, Respondent's Name: Inc. RFP 5429 - Pricing Sheet for SUPPLY OF TRAFFIC SIGNAL POLES The respondent shall complete the following section, which directly corresponds to the specifications. The contractor shall not make changes to this format. Product Proposal Pricing (FOB DESTINATION): Item EST. ANNUAL QTy UOM DESCRIPTION ZINC COATING ONLY ITEMS 1 -49 Unit Price Extended Price Estimated Delivery ARO (Days) 74 2 EA REPLACEMENT MAST ARM VERTICAL POLE, COMBINATION 30' POLE, 27" BOLT CIRCLE, FOR A 48 -A FOOTING, 100 MPH $ 12,456.00 $ 24,912.00 70 -84 Days 75 2 EA MAST ARM 50', RIGID MOUNTED, FOR ITEM 74 $ 6,696.00 $ 13,392.00 70 -84 Days 76 2 EA MAST ARM 55', RIGID MOUNTED, FOR ITEM 74 $ 7,696.00 $ 15,392.00 70 -84 Days 77 2 EA MAST ARM 60', RIGID MOUNTED, FOR ITEM 74 $ 7,804.00 $ 15,608.00 70 -84 Days 78 2 EA MAST ARM 65', RIGID MOUNTED, FOR ITEM 74 $ 7,860.00 $ 15,720.00 70 -84 Days 79 2 EA LUMINAIRE 8' ARM FOR ITEMS 74 $ 320.00 $ 640.00 70 -84 Days 80 2 EA ILSN 9' ARM FOR ITEM 74 $ 1,023.00 $ 2,046.00 70 -84 Days 81 2 EA BASE COVER FOR ITEM 74 $ 384.00 $ 768.00 70 -84 Days 82 2 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 74 $ 1,781.00 $ 3,562.00 10 -14 Days 83 2 EA CITY STANDARD MAST ARM VERTICAL POLE $ 7,152.00 $ 14,304.00 70 -84 Days 84 2 EA 1st SECTION MAST ARM 20', FOR ITEM 83 $ 5,448.00 $ 10,896.00 70 -84 Days 85 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 25' $ 2,212.00 $ 4,424.00 70 -84 Days 86 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 30' $ 2,243.00 $ 4,486.00 70 -84 Days 87 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 35' $ 2,412.00 $ 4,824.00 1 70 -84 Days 88 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 40' $ 2,585.00 $ 5,170.00 70 -84 Days 89 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 45' $ 2,828.00 $ 5,656.00 70 -84 Days 90 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 50' $ 3,072.00 $ 6,144.00 70 -84 Days 91 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 55' $ 3,315.00 $ 6,630.00 1 70 -84 Days 92 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 60' $ 3,557.00 $ 7,114.00 70 -84 Days 93 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 65' $ 3,799.00 $ 7,598.00 70 -84 Days 94 2 EA VERTICAL POLE LUMINAIRE SECTION FOR ITEM 83 $ 1,471.00 $ 2,942.00 70 -84 Days 95 2 EA ILSN 8' ARM FOR ITEM 83 $ 1,124.00 $ 2,248.00 70 -84 Days 96 2 EA LUMINAIRE TRUSS FOR ITEM 83 $ 1,249.00 $ 2,498.00 70 -84 Days 97 2 EA BASE COVER FOR ITEM 83 $ 391.00 $ 782.00 70 -84 Days 98 2 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 83 $ 2,023.00 $ 4,046.00 10 -14 Days Total Cost of Products $ 869,430.00 Payment Term Discounts Payment terms for the City of Denton are typically 30 days. Please indicate the additional discount extended to each monthly invoice that is paid within the time period indicated below Payment Terms Additional Discount % Invoice Paid in 20 days Invoice Paid in 15 days Invoice Paid in 10 days *NOTE: PRICING SHALL INCLUDE ALL COSTS TO DELIVER GOODS AS SPECIFIED FOB DESTINATION. RFP # 5429 - EVALUATION MATRIX EXHIBIT 2 Title: Supply of Traffic Signal Poles Response Date: 12 -31 -2013 @ 2:00 pm Buyer: Jody Word Respondents: Ranking Evaluation Factors = 100% Performance -10% Delivery -15% Compliance Spec -25% Price Score -50 % 1 Structural & Structural Steel Products 1 10.00% 15.00% 1 25.00% 50.00% Evaluation Team Member: 1 Traffic Operations Manager 2 Field Service Supervisor 3 Sr Civil Eng /Traffic EVALUATION CRITERIA a) Indicators of Probable Performance under contract (FACTOR: 10 %). Indicators of probable performance under the contract to include: past vendor performance, financial resources and ability to perform, experience or demonstrated capability and responsibility, references, and the vendor's ability to provide reliable maintenance agreements and support b) Delivery Timeframe (FACTOR: 15 %) The delivery time frame for goods after receipt of order (A.R.0) c) Compliance with Specifications, Quality, Reliability, Characteristics to meet stated or implied needs (FACTOR 25 %) Compliance with the stated specification (a) coupled with the quality and reliability of the goods and services, such as fitness for use that meets or exceeds customer's expectations, and the characteristics of the product or service that bear on its ability to meet the stated /implied needs. d) Price, Total Cost of Ownership (FACTOR: 50 %). The price of the items, to include total cost of ownership, such as installation costs, life cycle costs, and warranty provisions. ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING AN INITIAL ONE (1) YEAR CONTRACT WITH THE OPTION TO EXTEND FOR TWO (2) ADDITIONAL ONE (1) YEAR PERIODS FOR THE SUPPLY OF TRAFFIC SIGNAL POLES FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5429- AWARDED TO STRUCTURAL AND STEEL PRODUCTS, INC. IN THE ANNUAL ESTIMATED AMOUNT OF $869,430 FOR A THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $2,608,290). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of traffic signal poles 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 NUMBER VENDOR AMOUNT 5429 Structural Steel Products, Inc. $2,608,290 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 5429 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 , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY IC RFP 5429 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND STRUCTURAL AND STEEL PRODUCTS, INC. (RFP 5429) THIS CONTRACT is made and entered into this day of A.D., 2014, by and between Structural and Steel Products, Inc. a corporation, whose address is 1320 S. University Drive, Suite 701, Ft. Worth, TX 76107, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule 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 #5429 — Traffic Signal Poles, 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 hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A ") (b) City of Denton's RFP 5429 (on file at the office of the Purchasing Agent) (c) Standard Terms and Conditions (Exhibit "B ") (d) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C "). (e) Supplier's Proposal. (Exhibit "D "); These documents make 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." IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY SUPPLIER AIi I °IIf.7 l PI) SI ttNA 'TU' h'T Date: Name. z . �� � �q , a PHONE NUMBER . "µ FAX NUMBER CITY OF DENTON, TEXAS BY: GEORGE C. CAMPI3F..'.T L, CITY MANAGER. Date: Exhibit A Special Terms and Conditions The Quantities indicated on Exhibit D are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. Product Changes During Contract Term The supplier shall not change specifications during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to denconpurchasing @citvordenton.com, with the above file number in the subject line, for review. Products found to have changed specifications without notification, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. Contract Terms The contract term will be three (3) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this contract for an additional two (2) one -year periods. Price Escalation and De- escalation The City will implement an escalation/de- escalation price adjustment yearly. The escalation/de- escalation will be based upon manufacturer published pricing sheets to the vendor. The price will be increased or decreased based upon the yearly percentage change in the manufacturer's price list. The price adjustment will be determined quarterly from the award date. Should the change exceed or decrease a minimum threshold value of +/-I%, then the stated eligible bid prices shall be adjusted in accordance with the published price change. It is the supplier or the Cities responsibility to request a price adjustment yearly in writing. If no request is made, then it will be assumed that the bid price will be in effect. The supplier must submit or make available the manufacturers- nricing sheet used to calculate the bid Dronosal. to participate in the escalation /de- escalation clause. Total Contract Amount The contract total shall not exceed $2,608,290 for a three year period. Pricing shall be per Exhibit D attached. Delivery Lead Time Products or services will be delivered some items 10 -14 days other items 70 -80 days after the receipt of order from the City. Or Product or services shall be delivered to the City per the days /weeks noted in Exhibit D after receipt of the order. RFP 5429 City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's solicitation are applicable to Contracts /Purchase Orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal response, Invoice or Statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the Contract /Purchase Order these written provisions will take precedence. By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall apply only to a Solicitation to purchase Services to be performed principally at the City's premises or on public rights -of -way. 1. SUPPLIER'S OBLIGATIONS. The Supplier shall fully and timely provide all deliverables described in the Solicitation and in the Supplier's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Supplier's name and address, (b) the City'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 4 boxes, and (d) the number of the container bearing the packing list. The Supplier shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7, RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non - conforming deliverables. If the City has the right to inspect the Supplier's, or the Supplier's Subcontractor's, facilities, or the deliverables at the Supplier's, or the Supplier's Subcontractor's, premises, the Supplier shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non- complying tender shall constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to the sites where the Supplier is to perform the services as required in order for the Supplier to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Supplier's obligations under the contract. The Supplier hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. 10. WORKFORCE A. The Supplier shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the Supplier that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( "IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Supplier shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph. Environmental Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seg.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. § 1251 el seg.). 12. INVOICES: A. The Supplier shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Supplier's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Supplier's invoice. C. Invoices for labor shall include a copy of all time- sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Supplier shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Supplier to such extent as may be necessary on account of: i. delivery of defective or non - conforming deliverables by the Supplier; ii, third party claims, which are not covered by the insurance which the Supplier is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii, failure of the Supplier to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or suppliers, which is not covered by insurance required to be provided by the Supplier; v. reasonable evidence that the Supplier's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Supplier to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Supplier to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Supplier agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Supplier. The City shall provide the Supplier written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Supplier, unless otherwise stated in the contract terms. 15. FINAL PAYMENT AND CLOSE -OUT: A. If a DBE /MBE /WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier is required to submit a Contract Close -Out MBE /WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Supplier is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Supplier, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Supplier to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Supplier against the City other than those previously asserted in writing and not yet 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 this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Supplier as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Supplier shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Supplier shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Supplier which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Supplier identified Subcontractors in a DBE /MBE /WBE agreed to Plan, the Supplier shall comply with all requirements approved by the City. The Supplier shall not initially employ any Subcontractor except as provided in the Supplier's Plan. The Supplier shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Supplier is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Supplier by a Subcontractor shall be pursuant to a written contract between the Supplier and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Supplier. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii, require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Supplier in sufficient time to enable the Supplier to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv, require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Supplier, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Supplier is required to indemnify the City. C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Supplier is responsible for the Supplier's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY- PRICE: A. The Supplier warrants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. B. The Supplier certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, or otherwise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Supplier shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Supplier warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Supplier, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Supplier is unable or unwilling to repair or replace defective or non- conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Supplier, and purchase conforming deliverables from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Supplier warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Supplier is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Supplier, and purchase conforming services from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non - conforming deliverables, the City prefers to accept it, the City may do so. The Supplier shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non- conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Supplier is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Supplier's Offer, or in any report or deliverable required to be submitted by the Supplier to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Supplier, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Supplier's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Supplier shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Supplier, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required to be submitted by the Supplier to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Supplier if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Supplier shall negotiate an equitable adjustment for costs incurred by the Supplier in the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Supplier from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Supplier, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Supplier, the Supplier's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non - conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE SUPPLIER, OR THE SUPPLIER'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE SUPPLIER'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE SUPPLIER (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK ONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in the solicitation document. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements. i. The Supplier shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Supplier shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Supplier must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Supplier shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Supplier hereunder and shall not be construed to be a limitation of liability on the part of the Supplier. iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the 10 Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Supplier, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Supplier. xi. The Supplier shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Supplier shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. All deductibles or self - insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Supplier. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under or concerns the Contract, or which could have a material adverse affect on the Supplier's ability to perform thereunder, the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Supplier. Such notice to the City 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 whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Supplier shall be sent to the address specified in the Supplier's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the Supplier to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. m 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants to the City that: (i) the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Supplier in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Supplier does not know of any valid basis for any such claims. The Supplier shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Supplier's breach of any of Supplier's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co- counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Supplier. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Supplier may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know -how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information "). Supplier acknowledges and agrees that the Confidential Information is the valuable property of the City and /or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and /or its licensors. The Supplier (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Supplier promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLE& The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Supplier agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Supplier agrees that upon their creation, such deliverables shall be considered as work made - for -hire by the Supplier for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made - for -hire, the Supplier hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made- for -hire, the Supplier agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work - made- for -hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Supplier further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and /or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and 12 interest in and to the deliverables. The Supplier's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Supplier agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Supplier shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42, GRATUITIES: The City may, by written notice to the Supplier, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Supplier or any agent or representative of the Supplier to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Supplier in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision- making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Supplier shall render the Contract voidable by the City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B). 44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The Supplier's services shall be those of an independent supplier. The Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. 45. ASSIGNMENT- DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City. Any attempted assignment or delegation by the Supplier shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract, 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Supplier or the City of any one or more events of 13 default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Supplier invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision- making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Supplier agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 14 52. HOLIDAYS: The following holidays are observed by the City New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8 :00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable, in addition to the specific federally funded requirements. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Supplier, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap 15 generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Supplier shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate ". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this solicitation, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded supplier or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the supplier. 59. PREVAILING WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. littD://www.access.er)o.aov/davisbacoii/tx,htini 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Supplier must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Supplier shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Supplier is responsible for both federal and State unemployment insurance coverage and standard Worker's Compensation insurance coverage. Supplier shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Supplier or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Supplier's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug - free work environment; and the final rule, government -wide requirements for drug -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the supplier shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Supplier and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Supplier shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 16 64. FORCE AJEURE: The City of Denton, any Customer, and the Supplier shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Supplier shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non - performance or delay in performance. 65. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Supplier shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Supplier shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period 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 governmental entity that has authority to review records due to federal funds being spent under the Contract. 17 EXHIBIT C CONFLICT OF INTEREST QUESTIONNAIRE _ FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental Received entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity, 2L Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7`h business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? F---1 '' Yes F-1 No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental pp eny? tit C. Yes IL II No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? = Yes =1 No D. Describe each affiliation or business relationship. d.. W......._....._- ._....._......_________________ -- - - - - -- ......................... ............ ................ Signatu re of person doing business with the governmental Date _____ ........ entity, Date 18 CITY OFOENTON RFP FOR 5429 SOLICITATION CHECKLIST Checklist for RFP#5428 Title: ' TRAFF|CG|GNALPULES gTQUCTURAL& ST�ElPRODUCTS, INC 1A90 g U����AK�r��A SUITE Opening Date: 12/31/2013et2:00 PYN -~~ S. ^~ � ''' ' ~ '' ~ FORT WORTH T� 781O7 Contractor Name and Address: ' ,'`' Cnntao(� ' TXT 1. Submit one (1) original and two (2) WRITTEN copies of submittal (REQUIRED) a, Submit Written Proposal by courier, hand delivery, ormail ~/' b, Exhibit 1-Exce| Pricing Sheet, Review, complete, and return */ 2. Email Exhibit 1 in Excel format (u ebids 3. Submittal Content (Meet S ) ' Review all requirements ^Ensure your firm meets all stated minimum requirements ^Documentation included tnsupport the evaluation oiieha. /^ Company Information ^Relevant Experience and Qualifications «/ ^Quality Assurance / Quality Control ` Litigation History Statement `Addendum(a) Reviewed and return ^ Attachment A.Not Applicable ^ Attachment 13. Not Applicable ` Attachment C.Review, complete, and return � `Attachment D. Review, complete, and return __�_ ^Attachment E. Not Applicable ^ Attachment F. Rav(ow, oomp|eie, and return Attachment G, Revim*, oomp|ete, and return p/ Attachment H, Review, complete, and return Attachment 1, Review Attachment J, Review, comp|ete, and return 19 EXHIBIT "D", EXHIBIT "i Exhlbi. , Respondent's Name: Structural & Steel Products, Inc. RFP 5429 - Pricing Sheet for SUPPLY OF TRAFFIC SIGNAL POLES The respondent shall complete the fallowing section, which directly corresponds to the specifications. The contractor shall not make changes to this formal. Product Pn,4)oiinR Pricing (FOil DESTINA'1'10N): EST Estimated ROM ANNUAL Delivery ARO CITY DOM DESCRIPTION ZINC COATING ONLY ITEMS 1 •49 FREPLACEMENT Unit Price Extended Price (Days) MAST ARM VERTICAL POLE, COMBINATION 30- POLE, 17" BOLT 1 , 4 EA CIRCLE, FOR A30-A FOOTING, 8OMPH .......... . ..... . II $ 3,143.00 $ 12,572 00 70.84 Day, 2 2 EA MAST ARM 15', RIGID MOUNTED, FOR ITEM 1 . ........... ........ . . . . $ 873.00 $ 1,746.00 70-84 Days 3 2 FA MAST ARM 20', RIGID MOUNTED, FOR ITEM 1 ............... . .... . . . . ..... $ 873.00 1,746.00 70-84 Days 4 2 EA MAST' ARM 25, RIGID MOUNTED, FOR ITEM 1 - . . ............... $ 1,069.00 2,138,00 70-134 Days 5 2 EA MAST ARM 30', RIGID MOUNTFI), FOR ITEM 1 $ 1,245.00 2,490.00 1 70-84 Days 6 --- ..... . 2 EA MAST ARM 32', RIGID MOUNTED, FOR ITEM 1 ... .. .... . - ----- ......... . ......... ........... ... . .. $ 1,245.00 2,490.00 1 70-84 Days 7 4 EA LUMINAIRE 8' ARM FOR ITEMS 1 . ......... . .. .... ------- - 244X0 976.00 . ...... 70-84 Days 4 FA ILSN 9' ARM FOR ITEM 1 ... ..... .. 1,029.00 4,116.00 70-84 Days 9 4 EA BASE COVER FOR ITEM 1 317,00 1,268.00 70-84 Days 10 4 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 1 408,00 1,632.00 10-14 Days REPLACEMENT MAST ARM VERTICAL POLE, COMBINATION 30- POLE, 19" BOLT 11 4 EA CIRCLE, FOR A 36•A FOOTING, SOMPH 3,472.00 $ 13,888-00 70-84 Days 12 2 EA MAST ARM 35', RIGID MOUNTED, FOR ITEM 11 1,383.00 $ 2,76600 70-84 Days 1. 3 2 EA MAST ARM 40', RIGID MOUNTED, FOR ITEM 11 1,717.00 $ 3,434.00 70-84 Days 14 2 EA MAST ARM 45', RIGID MOUNTED, FOR ITEM 11 k2 2,571.00 5,142.00 70-84 Days 15 2 EA MAST ARM 48', RIGID MOUNTED, FOR ITEM 11 Is 2,57L00 5,14200 70-84 Days 16 4 EA LUMINAIRE 8' ARM FOR ITEMS 11 .. .... . . . .............. . . 24400 976-00 70-84 Days 17 4 EA ILSN 9' ARM FOR ITEM 11 $ 1,032.00 4,128.00 70-84 Days IS EA BASE COVER FOR ITEM 11 ----------- 1,268-00 70-84 Days 19 4 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 11 ............... . . . . .. .... . . . ......... 759.00 3,03600 10.14 Days 20 ...................... -- 8 EA STRAIN POLE, 34' POLE, 21" BOLT CIRCLE, FOR A 36-8 FOOTING, 100 MPH --- ---- $ 3,933.00 $ 31,464.00 70-84 Days 21 a EA LUMINAIRE WARM FOR ITEM 20 $ 244.00 $ 1,952-00 70-04 Days 22 ............. . . B EA ILSN 9' ARM FOR ITEM 20 . . . ... . ....................... . . ..... 1,032.0 8,256-00 70-84 Days 23 8 EA BASE COVER FOR ITEM 20 $ 392.00 3,13600 70-84 Days 24 6 [A ANCI-IfOR SOL P S, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 20 .... .. ...... $ 1,12&00 9,024.00 10-14 Days REPLACEMENT MAST ARM VERTICAL POLE, COMBINATION 30- POLE, 27" BOLT . . . ............... 25 p EA ICIRCLE, FOR A 48-A FOOTING, 100 MPH $ 12,505.00 $ 50,020-00 70 84 Day, 26 FA 2 ARM 50% RIGID MOUNTED, FOR ITEM 25 - ----------- - - - ----------- $ 6,424.00 - $ 12,848-00 70-84 Days 27 2 EA MAST ARM 55', RIGID MOUNTED, FOR ITEM 25 . .. ........ $ 7,355,00 S 14,720-00 ...... - 1 70-84 Days 28 2 EA MAST ARM 60% RIGID MOUN I r,[), FOR ITEM 25 $ 7,425.00 $ 14,850-00 70-84 Days 29 2 EA MAST ARM 65', RIGID MOUNTED, FOR ITEM 25 ....... . ........... ...... . $ 7,448.00 14,896.00 70-84 Days 30 . .. . I 4 EA I,UMINAIRE WARM FOR ITEMS 25 ................... 244.00 976.00 70.84 Days 31 4 EA ILSN 9' ARM FOR ITEM 25 1,032.00 4,128,00 70 -84 Days 32 13 4 EA BASE COVER FOR ITEM 25 ............. . . . 38.3= 5 1,532-00 70-84 Days 33 A 4 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 25 . .. ................. m -... -. ...................... . . . 1,773.00 $ 10-14 Days 3-1 16 EA CITY STANDARD MAST ARM VERTICAL POLE 7,129.00 $ 114,06C00 70-84 Days . 35 . . .......... EA 1st SECTION MAST ARM 2Y, FOR ITEM 34 ... 5,305.00 $ 84,880-00 7084 Days 36 2 EA 2rld SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 25' 2,060.00 $ 4,120-00 70-94 DayS 37 2 EA 2nd , 5ECTION, OLH BOARD, FOR ITEM 34 TO EQUAL. 30' 2,05,800 $ 4,136.00 70-84 Days 20 EXHIBIT "D" Exhibit 1 Respondent's Name: Structural & Steel Products, Inc. RFP 5429 - Pricing Sheet for SUPPLY OF TRAFFIC SIGNAL POLES The respondent shall complete the following section, which directly corresponds to the specifications. The contractorsholl not make changes to this format. Product Propos91 PrI flnS I'FOEI DESTINATION);; EST.. Est mate Ilan ANNUA6 I Delivery ARO QTY UOM DESCRIPTION ZINC COATING ONLY ITEMS 9 -49 Unit Price Extended Price (Days) 38 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 35' $ 2,215.00 $ 4,430.00 70 -84 Days 39 ''' 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 40' $ 2,36700 $ 4,734.00 70 -84 Days 40 4 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 45' $ 2,589.00 S 10,356.00 7084 Days 41 4 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 50' S 2,81.5.00 S 11,260.00 70 -84 Days 42 4 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 55' $ 3,040.00 $ 12,160,00 70 -84 Days 43 4 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 60' $ 3,26500 $ 13,060.00 70.84 Days 44 4 EA 2nd SECTION, OUTBOARD, FOR ITEM 34 TO EQUAL 65' $ 3,492.00 $ 13,968 00 70 -84 Days 45 16 EA VERTICAL POLE LUMINAIRE SECTION FOR ITEM 34 $ 1,325,00 5 21,200.00 70 -84 Days 46 16 EA ILSN 8' ARM FOR ITEM 34 $ 1,1.33. DO $ 18,128.00 70 -84 Days 47 16 EA LUMINAIRE TRUSS FOR ITEM 34 $ 1,304,00 $ 20,864 00 70 -84 Days 48 16 EA BASE COVER FOR ITEM 34 $ 388.00 $ 6,208.00 70 -84 Days 49 i6 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 34 $ 2,013.00 $ 32,208.00 10 -14 Days EST Estunatea Itam ANNUAL Delivery ARO QTY UOM DESCRIPTION POWDER COATING ONLY ITEMS 50.98 Unit Price Extended Price (Days) REPLACEMENT MAST ARM VERTICAL POLE, COMBINATION 30' POLE, 17' BOLT 50 2 EA CIRCLE, FOR A 30 -A FOOTING, 80 MPH $ 3,275.00 $ 6,550.00 70 -84 Days 51 2 EA MAST ARM 15', RIGID MOUNTED, FOR ITEM 50 $ 929.00 $ 1,858.00 70.84 Days 52 2 EA MAST ARM 20', RIGID MOUNTED, FOR ITEM 50 $ 929.00 $ 1,858.00 70 -84 Days 53 2 EA MAST ARM 25', RIGID MOUNTED, FOR ITEM 50 $ 1,16100 $ 2,326.00 70.84 Days 54 2 EA MAST ARM 30', RIGID MOUNTED, FOR ITEM 50 5 1364.00 $ 2,728.00 70 -84 Days 55 2 EA ',MAST ARM 32', RIGID MOUNTED, FOR ITEM 50 $ 1,364.00 S 2,728.00 70 -84 Days ' ;6 2 EA LUMINAIRE 8' ARM FOR 11 EMS 50 $ 320.00 S 640.00 70 -84 Days 57 2 EA ILSN 9' ARM FOR ITEM 50 $ 903,00 $ 1,966.00 70 -84 Days 58 2 EA BASE COVER FOR ITEM 50 $ 305,00 $ 610.00 70.84 Days 59 2 EA 'ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 50 $ 409.00 $ 818.00' 10 -14 Days .- . -.. —.— REPLACEMENT MA ST ARM VERTICAL POLE, COMBINATION 30' POLE, 19" BOLT _.�. 60 2 EA CIRCLE, FOR A 36 -A FOOTING, 80MPH $ 3,61.5.00 $ 7,23000 70 -84 Days 61 2 EA MAST ARM 35', RIGID MOUNTED, FOR ITEM 60 $ 1,520.D0 $ 3,040.00 70 -84 Days 62 2 EA MASTARM 40', RIGID MOUNTED, FOR ITEM 60 $ 1,875,00 $ 3,750.00 70 -84 Days 63 2 EA MAST ARM 45', RIGID MOUNTED, FOR ITEM 60 $ 2,777.00 $ 5,554.00 70 -84 Days 64 2 .. EA MAST ARM 48', RIGID MOUNTED, FOR ITEM 60 $ 2,777.00 $ 5,554.00 70 -84 Days 65 2 EA LUMINAIRE 8' ARM FOR ITEMS 60 $ 320.00 $ 640.00 70 -84 Days 6 L 2 EA ILSN T ARM FOR ITEM 60 $ 1,023.00 $ 2,046.00 70 -84 Days 67 2 EA BASE COVER FOR IIEM 60 $ 305 00 S 610.00 70 -84 Days 68 2 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 60 $ 763.00 $ 1,526.00 10 -14 Days 69 2 EA STRAIN POLE, 34' POLE, 21" BOLT CIRCLE, FOR A 36 -8 FOOTING, 100 MPH $ 4,196 00 $ 0,392.00 70 -84 Days 70 2 EA LUMINAIRE 8' ARM FOR ITEM 69 $ 320.00 S 64000 70 -84 Days 71 2 EA ILSN WARM FOR ITEM 69 $ 1,023.00 S 2,04600 7084 Days '72 2 EA SASE COVER FOR ITEM 69 $ 3.19.00 S 638.00 70 -84 Days 73 2 EA AN'Cq ^IOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 69 $ 1,133.00 $ 2,266.00 10 -fl4 Days 21 EXHIBIT "U" Exhibit I Respondent's Name: Structural & Steel Products, Inc. RFP 5429 ® Pricing Sheet for SUPPLY OF TRAFFIC SIGNAL POLES The respondent shall complete the fallowing section, which directly corresponds to the specificotions, The confroctorshannot make changes to thtsfofmot. Product Proposm Pricing iFOB DESTINATION)„ i EST, Est rmate J— Item ANNUAL Delivery ARO QTY UOMI DESCRIPTION ZINC COATING ONLY ITEMS 1-49 Unit Price Extended Price (Days) REPLACEMENT MAST ARM VERTICAL POLE, COMBINATION 30- POLE, 27" BOLT 74 2 EA CIRCLE, FOR A 48-A FOOTING, 100 MPH 12,45600 24,912-00 70.84 Days 75 2 EA MAST ARM 50', RIGID MOUNTED, FOR ITEM 74 6,696.00 13,392-00 70,84 Days 76 2 EA MAST ARM 55', RIGID MOUNTED, FOR ITEM 74 7,696o0 $ 15,392.00 70.84 Days 77 2 FA MAST ARM 60', RIGID MOUNTED, FOR ITEM 74 7,804.00 $ 15,608-00 70-84 Day, 78 2 EA ..... . ...... MAST ARM 65% RIGID MOUNTED, FOR ITEM 74 . ...... 7,860.00 15,720-00 70 84 Days 79 2 EA LUMINAIRE 8' ARM FOR ITEMS 74 320= 640-00 70-84 Days 80 2 EA ILSN 9' ARM FOR ITEM 74 1,023.00 2,046.00 70-84 Days 81 2 EA BASE COVER FOR ITEM 74 384.00 768,00 70-84 Days 82 2 FA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 74 S 1,781.00 $ 3,562.00 10-14 Days 83 2 EA CITY STANDARD MAST ARM VERTICAL POLE -1,152.00 $ 14,304.00 70.84 Days 84 2 —— EA . . . . ...... ... 1st SECTION MAST ARM 20', FOR ITEM 83 .... . .. 5,448.00 $ 10,896-00 70-84 Days 85 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 25' 2,212.00 $ 4,424-00 70-94 Days 86 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 30' 2,24100 4,486-00 ----------- — 70-134 Days 87 2 ..................... . EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 35' 2,412.00 S 4,1124-00 70.84 Days 813 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 40' ... . ....... . ............... 2,585.00 5,170-00 70-84 Days 89 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 93 10 EQUAL 45' . . . ............... . . $ 2,828,00 5 5,656-00 70-84 Days 90 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 50' S 3,072 00 $ 6,144-00 70-84 Days 91 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 55' 3,315.00 6,630-00 70-84 Days 92 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 'TO EQUAL 60' . . . ..... . . .. . . .. ...... . . 3,557 00 5 7,11400 70-84 Days 93 2 EA 2nd SECTION, OUTBOARD, FOR ITEM 83 TO EQUAL 65' ...... . ....... $ . . . 3,799.00 . . ..................... . .. 7,59800 70-84 Days 94 2 EA VERTICAL POLE LUMINAIRE SECTION FOR ITEM 83 . . . ..... . .... 1,471.00 2,942-00 70-84 Days 95 2 EA ILSN 8' ARM FOR ITEM 83 1,124.00 5 2,248.00 70-84 Days 96 2 . ........ . .... . ... ... . EA LUMINAIRE TRUSS FOR ITEM 83 1,249.00 2,498-00 70.84 Days 97 2 EA BASE COVER FOR ITEM 83 391.00 . . 7132,00 . .............. .. 70-84 Days 98 2 EA ANCHOR BOLTS, SET OF 4 WITH HARDWARE AND TEMPLATES FOR ITEM 83 2,02100 $ 4,046.00 10-14 Days Total Cost of Products (Annual) $ 869,430.00 Payment Term Discounts Payment terms for the City of Denton are typically 30 days. Please indicate the additional discount extended to each monthly invoice that Is paid within the time porimf indicated below. �Addltiionaj Discount % Invoice Paid in 20 days 0.00% invoice Paid in 15 days 0 00% invoice Pan in 10 days *NOTE: PRICING SHALL INCLUDE ALL COSTS TO DELIVER GOODS AS SPECIFIED FOB DESTINATION, Z 4 22 ATTACHMENTC LISILLIkk "-vIN—I.LUUYMTd—/IN 7. Telephone: 7,1.1,7 8. Fax: g,11•- gj,�*-- 7,5, 9. Other Locations: 10, Organization Class: Partnership Individual Coij)oratioav", Association IL Date Established: 1` 4 b' 12, Former Business Name: 104 13. Date of Dissolution: IVI;4 14, Subsidiary of. 15. Historically Underutilized Business: Yes O(S) 16• Principals and Officers: Please detail responsibilities with the name of each principal or officer, 17. Key Personnel and Responsibilities: 111},,vje 72.-,dvr, Please detail responsibilities with the name of each key person.11c], tal 1 18, Number of Personnel by Discipline: l 4 Discipline ✓;r�Lca' Number of Staff J # Licensed or Certified 19. Services Provided by Contractor: a. Please provide a detailed listing of all services that your company provides. b, Please detail your prior experience working on similar projects with Texas governmental entities, c. Please detail your similar services provided over the past two (2) years, d, Detail documented proof of at least three (3) projects in the past two (2) years, e. Please detail these services, including, the nature of the services provided, the scope of the activities, the organizations for which the services were provided, the dates of the projects, and the documented benefit to the governmental entity. 20. Has your' company filed or been named in any litigation involving your company and the Owner on a contract within the last five years under your current company name or any other company name'? If so provide details of the issues and resolution if available, Include lawsuits where Owner was involved. Alle. ' 21. Please provide at least (3) three references (preel °ahl)i sirruTicipalrties) and contract amounts. Include project description, contact names, position, and organization name and telephone number for each reference listed. See attachment F. 22. 1 lave you ever defaulted on or failed to complete a contract under your current company name or any other company name'? If so, where and wily',' Give name and telephone number of Owner. / 23, Il.ave you ever had a contract terminated by the Owner'? If.'so, where and why'? Give .name and telephone number (s) of Owner (s). 24. Has your company iMplClllented all Employee Health and Safety Program compliant with 29 CFR 1910 "General Industry Standards" and /or 29 CFR 1926 "General Construction Standards" as they apply to your Company's customary activities'? r °1? "t''µ iµ97 Ian E ,I' t4.?.c let`ei=l &Ii due- -192( � 24 EXHIBIT OvD" CITY OF DENTON RFP FOR 5429 ATTACHMENT I) PROPOSAL EXCEPTIONS Any exceptions taken to this RFP ilitist be listed on the lines below. if there are no exceptions, please sign where indicated at the bottom of the page, Item ff Description Sigiiature Company Date No Exceptions taken to this RFP. t. 4;, S ig n4 lute Cot pasty Date 25 EXHIBIT "Div CITY OF DENTON RFP FOR 5429 ATTACHMENT REFERENCES company provides. Tho City prders customers of similar �in and scope of work to this proposal. REFERENCE ONE GOVERN M EN'r/cwivi PANY NAME: nc-: Z /s; - LOCATION CONTACT MRSON AND Tffl-El�, T E 1, E P H ON E N L I M B E R: SCOPE OF' WORK:-,��,,,.., �.!5'-�- CONT RAC TPERIOD REFERENCE TWO GOVERNMENT/COMPANY NAME ;�, y' -/`, A<", , I- , 9r , / = LOCATION: 2-1 CONTACT PERSON AND TITLE :. T[ : L E P t t 0 N E. N U M B UR: . . .. . ............. SCOPE OI-WORI<:Z"�,,.'--l"--,-.r-----.,/,.I, CONTRACTPERIOD: REFERENCE THREE GOVERNMENT/COMPANYNAME: LOCATION: A CONTAC'T PERSON AND TITLE: 'I'L-'LL,'PIIONI;NUMBL-'R:,-✓-t ? ?,e, b' SCOPE OF WORK: CONTRACT PF"RIOD: 26 EXHIBIT "D" CITY OF DENTON RFP FOR 5429 ATTACHMENT G CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or (iflier jjvrs on dons busiucss with local 1 ovcirnmentall entit y 'I'llis questionnaire reflects changes made to the law by H.B. 1491, Toth Leg, Regular Session, h OFFIC1.3 USE ONLY This qlleStiffll[lail-C is being filed in accordance with chapter ) 76 of the Local (iovernnient Code by a person j<uvm,T�i who has a bu,,inc." relakon,,fliip as defined by Section 176.001(1 -a) with a local governmental clil ity and the person Meets requirements under Section 176.006(a)• By law this questionnaire 1111-1st be fled with the records administrator of the local government entity not later than the 7th business day after the date the pet-soil becomes aware of fact" that require the statement to be filed See Section 176.006, Local Govemmeni Code. A person. conirnits all offense iftlic person knowingly violates Section 176.006, Local GoVC1-11DIent Code. All offense under this section is a Class C misdenicinm% Naine of person wim has it business relationship with local governmental entity. IV /V"'? E] Cheek this box II you tire I'lling an update to it previously filed questionnaire. (The law wqUi['C•q tI1,11 YOU file all updilled completed questionnaire with the appropi We Ming, authority not Istler than the 7"' business day after the dole (lie originally filed queslionnuire becomes incomplete or illaceuralQ.) Name oflocnl oveini mnew � t of business reliltionship. Narne of0fificer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? Yes No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? ED Yes E] No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves ash an officer or director, or holds an ownership of 10 percent or more? —D Yes E-] No D Describe each affiliation or business relationship, ... ........ /X" /Y ) c Signature of person doing siness with the governmental entity Date 27 as] - ATTACHMENT R The City of Denton will ensure that purchases of equipment, ]Materials, supplies, and /or services comply with Texas Local Government Code 252.0215, in regards to competitive requirements in relation to Disadvantaged Business Enterprises (DBE), The City will ensure that all procurement opportunities are cost effective, and contributable to tl.le competitiveness of the City, and its customers. All ht "OCUreillent activities will be conducted in an open and fair manner with equal opportunity provided for all qualified parties. The City of Denton will provide equal contracting opportunities as provided by State and Federal law to small business enterprisers, Historically Underutilized Businesses, and Disadvantaged Business Enterprises, The City of Denton encourages all awarded Contractors to seek qualification as a DBE and /or utilize DBE's as sub - contractors, where feasible, to meet the overall intent of' the legislation. Disadvantaged Business .Entei °prises (DBE): are encouraged to participate in the City of Denton's procurement process. The Purchasing Department will provide additional clarification ol'specilications, assistance with Proposal Forms, and further explanation of procurement procedures to those DBEs who request it. Representatives from DBE companies should identify themselves as such and submit a copy of the Certification. The City recognizes the certifications of the State of Texas Building and PrOCLII'CI11e11t Commission NUB Program. All companies seeking information concerning DBE certification are urged to contact. State of Texas HUB Program TPASS Division 110 Box 13047, Austin, TX 757 11-3047 (512) 463 -5572 or (SSS) 563 -5551 or 6itt'ls �'4 � .a �iiC.lrtitYata t�.. ua, ala�� ,Rtgdlic °iutiiti�4'IN1nA1i,� Instructions: If your company is already certified, attach a copy of your certification to this form and return with the submission, If your company is not already certified, anti could be considered as Meeting certification requirements, please use the web lint: to obtain such. If you are submitting a response and plan to utilize DBE's, then use the form below to identify the business and include the business HUB certification. COMPANY NAME: REPRESENTATIVE :; /=\7010 CITY, STATE, ZIP: TELEPI ION.E NO, FAX NO Indicate all that apply: Minority -Owned Business i:nterprise Women -Owned Business Enterprise ` Disadvantaged Business Enterprise �� I 28 CITY OFDENTON RFP FOR 5429 ArTACHMENTJ ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF DENTON EXHIBIT M", The undersigned at�rces this Rl-'P becomes the property of the City of Denton after the official opening. The undersigned npOnnx |m hm Etimi|iohzcd himself with the local uondihmm Under Which the work in to be pnrkmnu];xmivOedhinwo|rv[thecondiUvnoo0c|ivo,y,hond\iugundsmraXon[cquipmmntnndo|| other matters that may bciocidonm|m (lie work, before xobudoingnpmpvx|, The undomigud xgmcs, if this proposal is accepted, mfunnixh any and all itoms/smrioo, upon which prices om nffexod, at the p,icc(s)and opun tile terms and conditions contained in the Specifications. The Period for acceptance of this Proposal will hc ninety (Y0) calendar days unless u different period is noted. The Undersigned nOirn that they are duly authorized m execute this contract, that this RFP has not been prepared in collusion Willi any other Bidder, nor any employee oy the City nl'Drmum. and that the contents uDhis RFPhuvcnot been communicated to any other proposer or to tiny emptoyce Of (lie City of Denton prior to the official opening of this bid, Respondent hmcby assigns m the City any and all o|oinm for overcharges associated with this mmunot which arise ondcr the onhtumt laws nf the United States, 15 U3CASmctinu | �/��. and vNkb arise Under the mnhcrum|uwxvt the State ^[Trxas, Tex. Uus. & Corti. Code, Section |5.0|.s��� The ondnmi8nodn�nnvtho they have ,o� �ddo vndemmod �copvv(Oohonoand unyomuhme^�cnomimd in this UPpackage, The w,dvuiQnc4 ugwox that the K|,P posted nn the wohoim are the o0uiu| ,pcuiDcutivux and xhuU not alter the electronic copy urth« opcoi5oudmv, and/or pricing sheet (E'xhihit \). Wkbomdcody identifying changes. The undersigned umdmqt^ocb [)ley will be responsible hx monitoring the City of Denton Purchasing Web site m: to cnm/rc (hey have dvnm!nndvd ood signed all addendum(s) required for SUbmission willi their proposal. 8houNo conflict xri,v bcwmuu the PQt supplier terms, v,contract; the terms and conditions set forth in this KyP shall prevail. ! certify that | have made no *i!\[v| misrepresentations in this Proposal Svhmbxi^n. nor have | withheld information in illy statements and answers mquestions. lum aware that the information given by mein this proposal will be investigated, with my full prnniooinn. and Um/ any misrepresentations oromiuyivno may camnc my proposal to be re.iceted. NAME AND ADDRESS 0yCOMPANY: a��' S I)Z Date "k�������� Tel. No. 2nuii 29 Name Title AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 Questions concerning this acquisition may be directed to DEPARTMENT: Materials Management Mike Beutner 349 -7900 ACM: Bryan Langley �_A SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply and installation of a moveable wall system (funded 100 percent by a United States Department of Justice Congressionally Selected Award) for the City of Denton Public Training Facility; providing for the expenditure of funds therefor; and providing an effective date (RFP 5301- awarded to Hufcor Texas Group in the not -to- exceed amount of $330,529.76). RFP INFORMATION The Denton Public Safety Training Center is a public safety training center for the Denton Police and Fire Departments. The facility will also serve as the training center for the Denton County Sheriff's Department under a five (5) year lease. Tasked with providing public safety training courses to law enforcement and fire personnel throughout the area, the facility features four classrooms, six offices, a meeting area, a break room, a library, a defensive tactics room, a cardio /fitness /weight room, a locker room with restrooms and shower facilities, storage space, and two recently purchased driving simulators. The facility is located in the east end of City Hall East (719 E. Hickory). Constriction is currently wrapping up. In 2010, the Police Department was awarded $1,000,000 from a Congressionally Selected Award funded through the United States Department of Justice for equipment to use in the new training facility. The grant funds cannot be used to fund direct constriction. The grant did approve a request for a reconfigurable /movable wall system. The Hufcor F1exTrac system is a series of configurable panels, doors, and windows that allow training staff to create any number of room designs with varying degrees of tactical challenges. The training center contains a (58' X 35') room designed to contain this type of configurable wall system. This `force on force' training enhancer allows for training in building searches, active shooter, and defensive tactic techniques. Reality Based Training (RBT) is directly applicable to the critical thinking skills utilized by officers on the street regarding the use of force. Illustrations of sample configurations that can be used for training are shown in Exhibit 1. While the main idea is to provide different settings for simulation training, the unit will also be useful for any number of training scenarios created by the Center's training staff. Staff could set up `sample crime scenes' to teach crime scene photography, students could be run through multiple scenario training, or the Fire Department could suit up in full gear, turn off the lights, and learn to navigate in environments where sight is not an option. Agenda Information Sheet February 4, 2014 Page 2 RFP INFORMATION(CONTINUED) On November 22, 2013, the City issued a Request for Proposal (R-FP 5301) soliciting proposals for the purchase and installation of a reconfigurable /movable wall system that would install into the designated area. Standard purchasing procedures were followed to solicit the proposals. Request for Proposals (RFP) were sent to 208 prospective suppliers. In addition, the notice was advertised in the local newspaper, and the specifications were placed on the City of Denton Materials Management website for prospective suppliers to download. Despite multiple inquiries from the three (3) comprehensive vendor sources, only (1) one response meeting the minimum qualifications, from Hufcor Texas Group, was received. A Best and Final Offer (BAFO) was solicited which resulted in a very nominal price reduction of less than one dollar (Exhibit 2). The final award amount is within the budgeted grant fund allocation. RECOMMENDATION Award the purchase of a reconfigurable /movable wall system for the Denton Public Safety Training Center to Hufcor Texas Group in the not —to- exceed amount of $330,529.76. PRINCIPAL PLACE OF BUSINESS Hufcor Texas Group Dallas, Texas ESTIMATED SCHEDULE OF PROJECT A final budget for the Congressionally Selected Award funds will be sent to the Department of Justice for approval, which usually takes six to eight weeks. Upon approval of the expenditure, a purchase order will be issued. Approximately ninety (90) days after the supplier's receipt of the order, the manufactured goods will be delivered and installed. FISCAL INFORMATION The movable wall system will be funded 100% by the Department of Justice Congressionally Selected Awards Program 2010- H7154- TX -D1. EXHIBITS Exhibit 1: Illustrations of Sample Room Configurations Exhibit 2: Best and Final Offer Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance O r O 0 Exhibit 1 48' -11 1/4" 0 10HUMOR DESIGN STUDY PANELS USED: 52 Basic 4 Window 8 Pass Door Denton P.D. PARTITION HEIGHT: 8' -3" HUFCOR #: 4908165 DRAWN: 6/20/12 BY: KJS SHEET: 1 OF 5 IIl� IIl� IIl� 1� ILL 10HUMOR DESIGN STUDY PANELS USED: 52 Basic 4 Window 8 Pass Door Denton P.D. PARTITION HEIGHT: 8' -3" HUFCOR #: 4908165 DRAWN: 6/20/12 BY: KJS SHEET: 1 OF 5 O r O `T Exhibit 1 48' -11 1/8" 10HUMOR DESIGN STUDY RFSIf1FN(:F I Avni IT PANELS USED: 51 Basic 4 Window 8 Pass Door Denton P.D. PARTITION HEIGHT: 8' -3" HUFCOR #: 4908165 DRAWN: 6/20/12 BY: KJS SHEET: 2 OF 5 O r O `T Exhibit 1 48' -11 1/8" 10HUMOR DESIGN STUDY APARTMFNT I AVOI IT PANELS USED: 52 Basic 4 Window 8 Pass Door Denton P.D. PARTITION HEIGHT: 8' -3" HUFCOR #: 4908165 DRAWN: 6/20/12 BY: KJS SHEET: 3 OF 5 r O `T Exhibit 1 48' -11 1/8" 10HUMOR DESIGN STUDY ri ACSRnr)RA I Avni IT PANELS USED: 52 Basic 1 Wind - 8 Pass Door Denton P.D. PARTITION HEIGHT: 8' -3" HUFCOR #: 4908165 DRAWN: 6/20/12 BY: KJS SHEET: 4 OF 5 Exhibit 1 3" [76] LATERAL SUPPORT CHANNEL UNISPAN TRUSS ASSEMBLY SUSPENSION BRACKET BY HUFCOR 7 3/8'. [187] X 2 1/2' [64] 3/8" [10] 0 HANGER RODS BY HUFCOR SUSPENSION BRACKET BY HUECOR 7 3/8" [187] X 2 1/2" [64] 3 1/2 ' [89] O BASE 2" [50] TOP OF FIN. FLOOR DETAIL 'A': VERTICAL SECTION NO SCALE 10HUFCOR DESIGN STUDY nFTAII I Avni IT PANELS USED: 0 Basic 0 Window 0 Pass Door Denton P.D. PARTITION HEIGHT: 8' -3" HUFCOR #: 4908165 DRAWN: 6/20/12 BY: KJS SHEET: 5 OF 5 Exhibit 2 - Best and Final Offer (BAFO) Respondent's Name: Hufcor Texas Group RFP 5301 - Pricing Sheet for SUPPLY AND INSTALLATION OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY The respondent shall complete the following section, which directly corresponds to the specification. The con troctorshall not make changes to this format. NOTE: The dimensions for the specified equipment are not firm. The sizes may be varied os per the specification. Exceptions to the estimated dimensions shall be CLEARLY indicated on this pricing sheet. Product Proposal Pricing (FOB DESTINATION): MOVABLE WALL SYSTEM FOR FOUR (4) TRAINING CLASSROOMS: Original Proposal BAFO Proposal Item # QTY UOM Product Description Description 2 Unit Price* Extended Price Estimated Delivery ARO (Days) Unit Price* Extended Price Estimated Delivery ARO (Days) SECTION A - WALL PANELS 1 5q 4 EA Solid panels, 4' wide by 8'3" tall S 1,546.55 $ 83,513.65 56 $ 1,546.55 $ 83,513.70 56 2 4 EA 1 Open air window insert panels Minimum of 30 "W x 36 "H frame $ 2,305.62 $ 9,222.46 56 $ 2,305.62 $ 9,222.48 56 3 8 EA jPass through door panels lWith specified hardware $ 4,481.90 $ 35,855.21 56 $ 4,481.90 $ 35,855.20 56 SECTION B - TRACK AND SUPPORT HARDWARE FOR PANELS 4 1 EA Overhead Track Grid and Support System Includes 48' 11.25" x 40'7 15/15" creating 120 ea. 4'x4' grid sections. Installed at 10' height. $ 47,686.56 $ 47,686.56 35 $ 47,686.56 $ 47,686.56 35 5 128 EA Two (2) counter - rotating top carriers per panel With self lube steel ball bearing wheels with Delron covered tires $ 22.27 $ 2s51.18 35 S 22.27 $ 2s50.56 35 6 1 EA Self- support structure for track system Every 4' on center $ 68,050.38 $ 68,050.38 35 $ 68,050.38 $ 68,050.38 35 $ - $ - SECTION C - CLOSEOUT MATERIAL 7 1 1 1 EA ISafety and Operations Manual for wall system lincludes specified items $ 140.00 $ 140.00 $ 140.00 $ 140.00 SECTION D - WARRANTY 8 1 YR Required Parts and Labor Warranty, effective upon 1completion of installation $ 16,369.74 $ 16,369.74 $ 16,369.74 $ 16,369.74 9 1 YR Optional Extended Warranty, including parts jandlabor $ 22,291.14 $ 22,291.14 $ 22,291.14 $ 22,291.14 S SECTION E -MISCELLANEOUS PRODUCTS 10 EA Miscellaneous equipment, hardware, etc. as needed to complete turn -key 1project $ - S - Total Cost of Products $ 285,980.31 $ 285,979.76 'NOTE: PRICING SHALL INCLUDE ALL C05T5 TO DELIVER GOOD5 As SPECIFIED FOB DESTINATION. Exhibit 2 - Best and Final Offer (BAFO) Respondent's Name: Hufcor Texas Group RFP 5301 - Pricing Sheet for SUPPLY AND INSTALLATION OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY The respondent shall complete the following section, which directly corresponds to the specification. The con troctorshall not make changes to this format. SECTION F - REQUIRED LABOR RATES Original Proposal BAFO Proposal Item # CITY UOM Description Description 2 Unit Price Extended Price Unit Price Extended Price 11 1 EA Installation of Movable Wall System in the specified (In -depth demonstration and training 14 40 HR locations. Pricing is based on Turn -Key Install $ 40,500.00 $ 40,500.00 $ 40,500.00 $ 40500.00 12 1 EA high- liability special operations team members. system) S 421.88 $ 16,875.00 S 421.88 $ 16,875.20 Testing /Troubleshooting of installed equipment. Testing Completed at Final Walk -Thru $ 1,350.00 $ 1,350.00 $ 1,350.00 $ 1,350.00 Use -of- equipment demonstration and training for (Basic operational functions of the wall 13 1 EA designated public safety instructors. Isysterm $ 2,700.00 1 $ 2,700.00 1 $ 2,700.00 1 $ 2,700.00 Total Cost of Labor $ 44,550.00 1 $ 44,550.00 SECTION G - OPTIONAL LABOR RATES Original Proposal BAFO Proposal Item # CITY UOM Description Description 2 Unit Price Extended Price Unit Price Extended Price Supervised demonstration & training of system's (In -depth demonstration and training 14 40 HR operational procedures by minimum of 3 experienced to show full capabilities of the wall high- liability special operations team members. system) S 421.88 $ 16,875.00 S 421.88 $ 16,875.20 Payment Term Discounts Payment terms for the City of Denton are typically 30 days. Please indicate the additional discount extended to each monthly invoice that is paid within the time period indicated below. Payment Terms' Original Additional Discount /, BAFO Additional Discount % Invoice Paid in 20 days NA NA Invoice Paid in 15 days NA NA Invoice Paid in 10 days NA NA Contract total: $ 330,529.76 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE SUPPLY AND INSTALLATION OF A MOVEABLE WALL SYSTEM (FUNDED 100 PERCENT BY A UNITED STATES DEPARTMENT OF JUSTICE CONGRESSIONALLY SELECTED AWARD) FOR THE CITY OF DENTON PUBLIC SAFETY TRAINING FACILITY; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5301- AWARDED TO HUFCOR TEXAS GROUP IN THE NOT -TO- EXCEED AMOUNT OF $330,529.76). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply and installation of a moveable wall system for the City of Denton Public Safety Training Facility 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 NT l M R RR VRND OR AMOUNT 5301 Hufcor Texas Group $330,529.76 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 5301 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 , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY IC RFP 5301 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND HUFCOR TEXAS GROUP (RFP #5301) THIS CONTRACT is made and entered into this day of A.D., 2014, by and between Hufcor Texas Group, a corporation, whose address is 454 West Mockingbird Lane, Dallas, Texas 75247, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule 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 #5301 Purchase and Installation of a Moveable Wall System for the City of Denton's Public Safety Training Facility, 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 hereto, or on file, and incorporated herein by reference: (a) City of Denton's RFP 5301 (on file at the office of the Purchasing Agent) (b) Standard Terms and Conditions (Exhibit "A ") (c) Special Terms and Conditions (Exhibit "B ") (d) RFP 5301 Technical Specifications and Scope of Work and Supplier's Statement of Work (Exhibit "C ") (e) Form CIQ Conflict of Interest Questionnaire (Exhibit "D ") (f} Supplier's Response to RFP 5301 - Best and Final Offer (BAFO) Pricing (Exhibit "E ") (g) City of Denton's Insurance Requirements (Exhibit "F ") These documents make 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 5301 Page 1 of 18 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ROM SUPPLIER BY: AUTH RI ED IGNATURE Date: Name; Title: lo� -W10 PHONE NUMBER 7z- X24 . 769 FAX NUMBER CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: RFP 5301 Page 2 of 18 Exhibit A Contract # 5301 Standard Terms and Conditions Exhibit A City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's solicitation are applicable to Contracts /Purchase Orders issued by the Citv of Denton hereinafter referred to as the Citv or Buver and the Seller herein after referred to as the Supplier. Any deviations must be in Nvriting and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal response, Invoice or Statement shall serve to modIA- the terms set forth herein. If there is a conflict between the provisions on the face of the Contract/Purchase Order these Nvritten provisions Nvill take precedence. By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be governed by the folloNving terms and conditions, unless exceptions are duly* noted and fully* negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply* only to a Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall apply* only to a Solicitation to purchase Services to be performed principally* at the City's premises or on public rights- of -Nvay. 1. SUPPLIER'S OBLIGATIONS. The Supplier shall fiilly and timely provide all deliverables described in the Solicitation and in the Supplier's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws. rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless other ise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier will package deliverables in accordance with good commercial practice and shall include a packing list shoeing the description of each item the quantity and unit price unless other ise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Supplier's name and address, (b) the City'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 4 boxes, and (d) the number of the container bearing the packing list. The Supplier shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier is not authorized to ship the deliverables under reserti -ation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless other ise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserN -es all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non - conforming deliverables. If the City has the right to inspect the Supplier's, or the Supplier's Subcontractor's, facilities, or the deliverables at the Supplier's, or the Supplier's Subcontractor's, premises, the Supplier shall furnish, or cause to be Iu nished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. RFP 5301 Page 3 of 18 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must ftilly comply with all provisions of the Contract as to time of deliveiv, quality, and quantity. Any non - complying tender shall constitute a breach and the Supplier shall not have the right to substitute a conforming tender: provided, where the time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to the sites where the Supplier is to perform the seixices as required in order for the Supplier to perform the seixices in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier acknowledges that it has satisfied itself as to the nature of the City's seixice requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the seixices, and any other condition or state of fact which could in any way affect performance of the Supplier's obligations under the contract. The Supplier hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or seixice conditions differ from expected conditions. 10. WORKFORCE A. The Supplier shall employ only orderly and competent workers, spilled in the performance of the seivices which they will perform under the Contract. B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or seixices under a City of Denton contract or on the City's property . i. use or possess a firearm including a concealed handgun that is licensed under state law, except as required by the terms of the contract: or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the Supplier that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worker from Contract seivices, and may not employ such worker again on Contract seivices without the City's prior written consent. Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or seivices under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (`IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and enviromnental laws, ordinances, rules and regulations in the performance of the seixices, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Supplier shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph. Environmental Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Supplier shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation RFP 5301 Page 4 of 18 charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Supplier's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Supplier's invoice. C. Invoices for labor shall include a copy of all time- sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Supplier shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or Cit - sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial shipment or delivery, as stated above. provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Supplier to such extent as may be necessary on account of: i. delivery of defective or non - conforming deliverables by the Supplier: ii. third party claims, which are not covered by the insurance which the Supplier is required to provide, are filed or reasonable evidence indicating probable filing of such claims: iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment: iv. damage to the property of the City or the City's agents, employees or suppliers, which is not covered by insurance required to be provided by the Supplier: v. reasonable evidence that the Supplier's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay: vi. failure of the Supplier to submit proper invoices with purchase order number, with all required attachments and supporting documentation: or vii. failure of the Supplier to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Supplier agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available finds shall render the Contract null and void to the extent fluids are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Supplier. The City shall provide the Supplier written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Supplier, unless otherwise stated in the contract terms. 15. FINAL PAYMENT AND CLOSE -OUT: RFP 5301 Page 5 of 18 A. If a DBE/MBE /WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier is required to submit a Contract Close -Out MBEAVBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Supplier is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Supplier, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Supplier to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit: and ii. a waiver of all claims by the Supplier against the City other than those previously asserted in writing and not yet 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 this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Supplier as such. 17. RIGHT TO AUDIT: A. The City shall haN -e the right to audit and make copies of the books, records and computations pertaining to the Contract. The Supplier shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, withun ten (10) business days of written request. Further, the Supplier shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made aN- ailable withun a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Supplier which must be payable withun five (5) business days of receipt of an inwice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ". "records ". *'documents" and "other evidence ", as used above. shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply with all requirements approved by the City. The Supplier shall not initially employ any Subcontractor except as provided in the Supplier's Plan. The Supplier shall not substitute any Subcontractor identified in the P1aiL unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Supplier is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Supplier by a Subcontractor shall be pursuant to a written contract between the Supplier and Subcontractor. The terms of the subcontract mai- not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract: ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Supplier. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City: iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or other ise, to the Supplier in sufficient time to enable the Supplier to include same with its invoice or application for payment to the City in accordance with the terms of the Contract: iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Supplier, with the City being a named insured as its interest shall appear: and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Supplier is required to indemnify the City. RFP 5301 Page 6 of 18 C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Supplier is responsible for the Supplier's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may other ise be required by law. D. The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY- PRICE: A. The Supplier warrants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. B. The Supplier certifies that the prices in the Offer haN -e been arrived at independently without consultation- communication, or agreement for the purpose of restricting competition- as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy aN- ailable, the City may deduct from any amounts owed to the Supplier, or other ise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables ftu-nished under the Contract, and that the deliverables are free and clear of all liens, claims, securit-v interests and encumbrances. The Supplier shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Supplier warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Supplier, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local lams. rules, and regulations, and industry codes and standards. Unless other ise stated in the Solicitation, the deliverables shall be new or reci-cled merchandise, and not used or reconditioned. A. Reci-cled deliverables shall be clearly- identified as such. B. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law: and any attempt to do so shall be without force or effect. C. Unless other ise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non - conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty withun thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Supplier is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Supplier, and purchase conforming deliverables from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be ftrlly transferred to the City, the Supplier shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Supplier warrants and represents that all serti -ices to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local lams, rules or regulations. A. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. RFP 5301 Page 7 of 18 B. Unless other ise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand perform the seivices again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Supplier is unable or unwilling to perform its seivices in accordance with the above standard as required by the City then in addition to anti- other available remedy, the City mai- reduce the amount of seivices it mal- be required to purchase under the Contract from the Supplier, and purchase conforming seivices from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such seivices from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non - conforming deliverables, the City prefers to accept it, the City may do so. The Supplier shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given withun the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Supplier is obseived performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification- the Supplier will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to firlly, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy lams of the United States or (d) makes a material misrepresentation in Supplier's Offer, or in any report or deliverable required to be submitted by the Supplier to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Supplier, withun such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Supplier's default, including, without limitation- cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post - judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall haN -e the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination- the Supplier shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Supplier, to the extent of fiends Appropriated or other ise legally aN- ailable for such purposes, for all goods delivered and seivices performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required to be submitted by the Supplier to the City shall be grounds for the termination of the Contract for cause by the City and RFP 5301 Page 8 of 18 may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Supplier if the City deems it is in its best interest. If such delay- causes an increase in the cost of the work under the Contract, the Cit-v and the Supplier shall negotiate an equitable agjustment for costs incurred by the Supplier in the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an agjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any agjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Supplier from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the seivices will be extended: provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Supplier, their respective agents, officers, employees and subcontractors: the officers, agents, and employees of such subcontractors: and third parties): and /or (2) death bodily injmv, illness, disease, worker's compensation, loss of seivices, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Supplier, the Supplier's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non - conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CITI), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE SUPPLIER, OR THE SUPPLIER'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE SUPPLIER'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE SUPPLIER (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY wTIO ALkY BE LIABLE FOR AN INDE1\4NIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in the solicitation document. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory- to the City of Denton. A. General Requirements. i. The Supplier shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Supplier shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Supplier must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Supplier shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Supplier hereunder and shall not be construed to be a limitation of liability on the part of the Supplier. iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the RFP 5301 Page 9 of 18 subcontractors commencing work on the project. v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: Cit-v of Denton Materials Management Department 901B Texas Street Denton. Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Supplier, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall cant' Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reseives the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutoiv law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Supplier. xi. The Supplier shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Supplier shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. All deductibles or self - insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated withun the Contract. xiv. The insurance coverage's specified in withun the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Supplier. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under or concerns the Contract, or which could have a material adverse affect on the Supplier's ability to perform thereunder, the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Supplier. Such notice to the City 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 whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton Cit-v Attornev. Personal deliveiv to the Cit-v Attornev shall be to Cit-v Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Seri-ice Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Supplier shall be sent to the address specified in the Supplier's Offer, or at such other address as a party may notify the other in writing. Notices to the Cit-v shall be addressed to the Cit-v at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. RFP 5301 Page 10 of 18 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the Supplier to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants to the City that: (i) the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Supplier in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party: that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Supplier does not know of any valid basis for any such claims. The Supplier shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise am-where in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party: or (ii) the Supplier's breach of any of Supplier's representations or warranties stated in this Contract. In the event of any such claim the City shall haN -e the right to monitor such claim or at its option engage its own separate counsel to act as co- counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Supplier. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Supplier may require access to certain of the City's and /or its licensors' confidential information (including ins- entions, employee information, trade secrets, confidential know-how, confidential business information. and other information which the Cit-v or its licensors consider confidential) (collectively, *'Confidential hnformation"). Supplier acknowledges and agrees that the Confidential Information is the valuable property of the City and /or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and /or its licensors. The Supplier (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or other ise use the Confidential Information without the prior written consent of the City or in a marmer not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by lay or an order of any court or other governmental authority with proper jurisdiction, provided the Supplier promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses withun its own business to protect its own most valuable information. which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentialit-v of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Supplier agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Supplier agrees that upon their creation, such deliverables shall be considered as work made - for -hire by the Supplier for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made - for -hire, the Supplier hereby assigns to the City (and agrees to cause each of its employees providing seivices to the City hereunder to execute, acknowledge, and deliver an assigmnent to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to such work made - for -hire, the Supplier agrees to execute, acknowledge, and deliver and cause each of its employees providing seivices to the City hereunder to execute, acknowledge, and deliver a work- made- for -hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. RFP 5301 Page 11 of 18 C. Additional Assignments. The Supplier finther agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and /or protection, letters patent, or any similar rights in any and all countries and in order to assign and cony -ey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Supplier's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Supplier agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless other ise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Supplier shall not advertise or publish without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Supplier, or other ise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The Cite may, by written notice to the Supplier, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Supplier or any agent or representative of the Supplier to any officer or employee of the City of Denton with a viers toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision- the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Supplier in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is ins -olved in the development, evaluation, or decision - making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Supplier shall render the Contract voidable by the City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B). 44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The Supplier's seivices shall be those of an independent supplier. The Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation- or any other City employee benefit. The City shall not haw superb -ision and control of the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the serti -ices hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton- Texas, or his designee under this agreement. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City. Any attempted assigmnent or delegation by the Supplier shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person- firm or entity not a party hereto: it RFP 5301 Page 12 of 18 being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Supplier or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or fixture default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Supplier ins -oice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the ruining of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party withun fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision - making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly- to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Supplier agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken RFP 5301 Page 13 of 18 provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are obseii -ed by the City New Year's Day (obseii -ed) MLK Day Memorial Dai- 4th of Juli- Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (obserti -ed) Christmas Day (obsewed) New Year's Dai- (obserti -ed) If a Legal Holiday falls on Saturday, it will be obserti -ed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be obserti -ed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall suivive the expiration or termination of the Contract. 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or malting prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Serti -ices Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed. color, genetic testing, or national origin, be refirsed the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements) The following federally fimded requirements are applicable, in addition to the specific federally funded requirements. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued): or (2) For components manufactured by the Supplier, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An umnanufactured end product mined or produced in the United States: or RFP 5301 Page 14 of 18 (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract: but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Supplier shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate ". 57. RIGHT TO INFORMATION: The City of Denton reseives the right to use any and all information presented in any response to this solicitation- whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded supplier or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the supplier. 59. PREVAILING WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. littl): / /ii-ii-ii-. access. �,i)o. �,oN- /daN-isbacoii/tx.litiiil 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Supplier must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery: (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public seii -ants. The Supplier shall give all notices and comply with all laws and regulations applicable to finririshing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Supplier is responsible for both federal and State unemployment insurance coverage and standard Worker's Compensation insurance coverage. Supplier shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Supplier or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Supplier's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V. Subtitle D: 41 U.S.C. 701 ET SEQ.) and maintain a drug - free work eiwiromnent and the final rule, govern anent -wide requirements for ding -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the supplier shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable for all damages to govermitent- owned, leased, or occupied property and equipment caused by the Supplier and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any RFP 5301 Page 15 of 18 performance pursuant to the Contract. The Supplier shall notify the City of Denton Procurement Manager in writing of any such damage withm one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Supplier shall not be responsible for performance under the Contract should it be prevented from performance by an act of rear, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any finther performance or obserti -ance of the requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially reasonable efforts to recommence performance or obserti -ance whenever and to whatever extent possible without delay. The Supplier shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing withm five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non - performance or delay in performance. 65. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit impair, preclude, cancel, naive or other ise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in anti- wai- intended to constitute a waiver by the City of Denton of anti- immunities from suit or from liabilit-v that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Supplier shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Supplier shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period 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 governmental entity that has authority to review records due to federal fiords being spent under the Contract. RFP 5301 Page 16 of 18 Exhibit B Contract # 5301 Special Terms and Conditions Exhibit B Special Terms and Conditions A purchase order will be issued upon final execution of the contract documents and will serve as the notice to proceed with the order of the material. This is a one -time purchase agreement based upon the quantities and pricing in Exhibit E. Authorized Distributor The supplier shall be the manufacturer or authorized distributor of the proposed products. The distributor shall be authorized to sell to the City of Denton, and make available the manufacturer's representative as needed by the City. Total Contract Amount The contact total shall not exceed $330,529.76. Pricing shall be per Exhibit E attached. Item 14 will be excluded. The supplier's 40 -hour optional tactical training will not be utilized. Delivery and Installation Delivery of material shall be 56 days after receipt of the purchase order. The City shall reserve the right to amend the onsite delivery date, as needed to coordinate with the Public Safety Training Facility's training schedule. Delivery shall be coordinated with the City's equipment project managers prior to the delivery date. The moveable wall system and their associated hardware and accessories shall be installed around the end of March 2014 or early April 2014, with the scheduled testing, and four (4) training and demonstration session immediately following thereafter. RFP 5301 Page 17 of 18 Exhibit C Contract # 5301 RFP 5301 Technical Specifications and Scope of Work CITY OF DENTON RFP FOR PURCHASE AND INSTALLATION OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY EXHIBIT 2 SCOPE OF WORK AND TECHNICAL SPECIFICATIONS The scope of work and /or technical specifications shall be finalized upon the selection of the Firm. The proposal submission shall have accurately described your understanding of the objectives and scope of the requested products and services and provided an outline of your process to implement the requirements of the scope of work and /or technical specification below. It is anticipated that the scope proposal submission will include, at a minimum, the following: Overall The city seeks a vendor to provide a reconfigurable /movable wall system from a manufacturer with a minimum of five (5) years experience supplying similar equipment for use in a law enforcement training environment. The movable wall system should have the following performance characteristics: Panel Characteristics • Provide a total panel count of nominally sized systems (4' wide x 8' 3" tall): o 54 Basic Panels 0 4 window insert panels (no glass) o 8 pass door panels 66 panels total • Panel construction to be minimum 16 gauge welded steel frames with a minimum 3" thick Medium Density Fiberboard (MDF) faces with High Pressure Laminate (HPL) finishes, or equivalent. The finish must be easy to maintain including cleaning of the material. Note: Steel -type finishes will not be accepted. • Each movable panel must contain bottom seals that apply 100 Ibs of downward seal pressure when extended, and have a minimum travel of 2" in either direction. This will allow flexibility when the panels are being moved over an uneven floor surface. Note: The 100 Ibs downward seal pressure will be required to reasonably withstand the force of a lateral force collision by an average large male, yet give slightly to prevent injury. • In order to facilitate quick set -up times, panel seals must be mechanically activated on the edge of the panel with a maximum 190 - degree quick -set action. o Minimum of five (5) operating handles to be supplied with system. • Panel vertical seals must have enough mass to stop simunitions (marker or rubber pellet rounds) from penetrating between panel intersections. PAGE 1 OF RFP #5301 EXHIBIT 2 CITY OF DENTON RFP FOR PURCHASE AND INSTALLATION OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY • Panel vertical seals must allow panels to pass through the intersections between panels without the need to reset adjacent panels. This will allow quicker set up times for ancillary training. Door Panels • Pass through door panels must have manufacturer's standard lever "commercial action" hardware on one side and standard turn /twist knob on other side allowing any pass door to be used to mimic both commercial and residential openings. The turn /twist door knob shall be recessed to allow easier pass through access. • Pass through door panels must have adjustable automatic door closures to automatically bring doors closed when not propped open. • Pass through doors need to be breachable (break through without causing any damages to equipment or training personnel). • Pass through door panels must have integrated seals with enough force to stabilize the doors without the need for floor bolts. This will allow flexibility to place the pass through door panels in other locations than where the preset door bolts are located. • Pass through door panels must not require any thresholds to minimize any tripping hazards. • Pass through door panels must have the ability to be moved between intersections without resetting the adjacent panels. Window Panels • Window panels must contain a pre- finished, aluminum framed cutout that is a minimum of 30" wide x 36" tall. • Window panels must be reinforced to support an additional 300 Ibs of personnel and equipment to breach through the window openings. • Window panels do not require glass or plexiglass and shall be open air windows. Color Selection • Color selection of finishes to be from manufacturer's standard selection. o Panel construction must contain pre - painted /powder coated in grey metal protective edge trim to protect finishes. Untrimmed panels will not be accepted. PAGE 2 OF RFP #5301 EXHIBIT 2 CITY OF DENTON RFP FOR PURCHASE AND INSTALLATION OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY Color Option • Supplier must supply an alternate price using MDF faces pre - painted with rotogravure, 5 -layer paint coat in lieu of HPL finishes. Track and Support Characteristics • Panels shall be operated on an overhead tracking system, which create a 4' x 4' grid pattern. • Panels must have two (2) counter - rotating top carriers per panel to allow travel through 90- degree intersections of the track grid. • Carriers to be self - lubricating steel ball bear wheels with Delron covered tires for smooth movement. • Track grid is overall nominally 48' 11 %" x 40' 7 15/15 ", creating 120, 4' x 4' sections. The track grid shall be installed at a 10' height. This track grid dimension is required due to the design and layout of the training rooms. Please refer to Exhibit 3 — City of Denton Public Training Facility's Tactical Room Floorplans. o Note: the floorplan provided is not to scale. The pricing proposed on the pricing sheet (Exhibit 1) shall be based on the floorplan provided in Exhibit 3. The selected contractor will be responsible for measuring the room prior to fabricating the movable wall system materials to ensure accurate fitting. • Track must be made from architectural grade aluminum with precision alignment. Roll- formed steel track and steel tired carriers will not be accepted. • Track grid must accommodate pre- existing jobsite load- bearing columns and must not interfere with panel movement and layout combinations. o The location of the four (4) load- bearing columns are indicated on page 2 of Exhibit 3 - City of Denton Public Training Facility's Tactical Room Floorplans. • Track must support up to 600 Ibs total weight per panel. • Track must be self supporting using a pre- engineered structural support by the supplier. • Pre - engineered overhead support structure with 4' on center required with system. In other words, there shall be a truss over each 4' x 4' section to hang the unit from the ceiling and give the system balance. PAGE 3 OF RFP #5301 EXHIBIT 2 CITY OF DENTON RFP FOR PURCHASE AND INSTALLATION OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY • Track grid and support must be designed with a minimum of eight (8) separate 4' deep stacking bays to allow all panels to stack at one side of room. This will allow sufficient clearance from the general area. • Self- support structure must have minimum loads ratings to meet the requirements of the track, stacks, and panel weights for the overall system. • Self- support is the responsibility of reconfigurable wall system supplier only. This is a turn -key project. Closeout Requirements • Supplier must provide a Safety Manual for the wall system, which reviews the following items: • Safety Hazards • Personal Protective Equipment • "No Shoot" Areas & Rules • Supplier must provide removable and repositionable "No Shoot" graphics for each pass door and window insert panels. (minimum of 24 required) • Graphics must be bright red and be minimum 42" wide x 12" tall. • Muzzle Discipline • Conditions of Weapons Carry • Go Dry First Recommendations • Qualified Range Safety Officer Discipline • Denial Barriers • Target Placement • Training Weapons • Ammunition Concerns • Diversion Devices, Chemical Munitions, Smoke, Flangible Windows • Observation Safety • System Overall Do's & Don'ts • Supplier shall perform all necessary testing to ensure the full compliance of all the specifications agreed upon under this contract and the full operatability of the movable wall system as it was designed and advertised to perform. • Demonstrators must have a minimum of two (2) years experience in working with a movable wall system to be installed and be represented by at least two (2) currently licensed law enforcement entities in any U.S. jurisdiction. o At the four (4) hour use -of- equipment demonstration and training session, all training - related questions shall be addressed to the satisfaction of the system operators or interested parties. PAGE 4 OF RFP #5301 EXHIBIT 2 CITY OF DENTON RFP FOR PURCHASE AND INSTALLATION OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY o Assist and supervise the City- designated system operators in a run - through to acquaint them with "hands on" operation of the equipment. ■ Ensure satisfactory demonstration by the City- designated system operators of the intended use of the installed equipment. Optional Training • Supplier must provide a minimum 40 -hour supervised in -depth demonstration and training of the system's operational procedures by a minimum of three (3) experienced high - liability special operations team members. The public safety facility operations personnel will be designated by the Denton Police Department to receive the in -depth training on how to properly operate the movable wall system to its fullest capabilities. Warranty • System must be backed with minimum one -year (both parts and labor) warranty from the time of installation. • Describe, in the proposal, any optional extended warranty available including what will be covered under the warranty. Provide annual pricing on the provided pricing sheet (Exhibit 1). PAGE 5 OF RFP #5301 EXHIBIT 2 RFP #5301 The attached are the highlighted changes to Exhibit 2 — SOW- Specifications. Please replace page 3 with the attached revised page 3. This form should be signed and returned with your proposal. Name: JOSHLIA L PAIMme-,a, Signature: Company: !�A T-K 64?OL40 Title: Date: /A - 17 -- -2- 0 13 CITY OF DENTON RFP FOR PURCHASE AND INSTALLATION OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY Color Option • Supplier must supply an alternate price using MDF faces pre - painted with rotogravure, 5 -layer paint coat in lieu of HPL finishes. Track and Support Characteristics • Panels shall be operated on an overhead tracking system, which create a 4' x 4' grid pattern. • Panels must have two (2) counter - rotating top carriers per panel to allow travel through 90- degree intersections of the track grid. • Carriers to be self - lubricating steel ball bear wheels with Delron covered tires for smooth movement. • Track grid is overall nominally 48' 11 %" x40' 7 15/15 ", creating 120,4' x4' sections. Hhtl d��rd:,u�IP�nru��� a,a,un�runu a,uuir�ir�d:�u�uuir�rJ u'll���n� uu�;��:ll<a,IP�;�llll ifuu uuir���d:ru� 1 �." -�" ". �II���ii�:IP� ua, ulP�d��r IP�n�urJll���u: d�lf n��u�,u:iiu���u u n -u illuu„ Ilu „Il a „i.Il n ..�� wuu,Il w ua N 11 wullll & ww:� && mi wu.� ietl w Il �:o This track grid dimension is required due to the design and layout of the training rooms. Please refer to Exhibit 3 — City of Denton Public Training Facility's Tactical Room Floorplans. o Note: the floorplan provided is not to scale. The pricing proposed on the pricing sheet (Exhibit 1) shall be based on the floorplan provided in Exhibit 3. The selected contractor will be responsible for measuring the room prior to fabricating the movable wall system materials to ensure accurate fitting. • Track must be made from architectural grade aluminum with precision alignment. Roll- formed steel track and steel tired carriers will not be accepted. • Track grid must accommodate pre- existing jobsite load- bearing columns and must not interfere with panel movement and layout combinations. o The location of the four (4) load- bearing columns are indicated on page 2 of Exhibit 3 - City of Denton Public Training Facility's Tactical Room Floorplans. • Track must support up to 600 Ibs total weight per panel. • Track must be self supporting using a pre- engineered structural support by the supplier. � 1htl,, uauniiu ...btl' o, 1- �d�u�u�ii „pin „�� aun..d sIhal1 unou uu un IfCu 'All Y„ ,�iskin m s�huucwir' odheir VIIh dhl� ain , ifllooir. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Pre - engineered overhead support structure with 4' on center required with system. PAGE 3 OF RFP #5301 EXHIBIT 2 Exhibit D Contract # 5301 Conflict of Interest Questionnaire CITY • DENTON RFP FOR PURCHASE OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY ATTACHMENT G CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE' USE ()NI.,Y This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person Date Received who has a business relationship as defined by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. T Name of person who has a business relationship with local governmental entity. 2 ❑ Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7"' business clay after the (late the originally filed questionnaire becomes incomplete or inaccurate.) 3] Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? F-1 Yes No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? F-1 Yes � No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? 1:1 0 Yes No D. Describe each affiliation or business relationship. 4 'Z Signature of person doing business with the governmental entity Date PAGE 56 OF RFP #5301 Exhibit E Contract # 5301 Supplier's Best and Final Offer Pricing Exhibit 1 - Best and Final Offer (BAFO) Respondent's Name: Hufcor Texas Group RFP 5301 - Pricing Sheet for SUPPLY AND INSTALLATION OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY The respondent shall complete the following section, which directly corresponds to the specification. The con troctorshall not make changes to this format. NOTE: The dimensions forthespecified equipment are not firm. The sizes maybe varied riper the specification. Exceptions to the estimated dimensions shall be CLEARLYindicoted on this pricing sheet. Product Proposal Pricina (FOB DESTINATION): MOVABLE WALL SYSTEM FOR FOUR (4) TRAINING CLASSROOMS: Original Proposal BAFO Proposal Item # QTY UOM Product Description Description 2 Unit Price* Extended Price Estimated Delivery ARO (Days) Unit Price* Extended Price Estimated Delivery ARO (Days) SECTION A - WALL PANELS 1 54 EA Solid panels, 4' wide by 8'3" tall S 1,546.55 $ 83,513.65 56 $ 1,546.55 $ 83,513.70 56 2 4 EA 1 lopen air window insert panels Iminimurn of 30 "W x 36 "H frame $ 2,305.62 $ 9,222.46 56 $ 2,305.62 $ 9,222.48 56 3 8 EA jPass through door panels lWith specified hardware $ 4,481.90 $ 35,855.21 56 $ 4,481.90 $ 35,855.20 56 SECTION B - TRACK AND SUPPORT HARDWARE FOR PANELS 4 1 EA Overhead Track Grid and Support System Includes 48'11.25" x 40'7 15/15" creating 120 ea. 4'x4' grid sections. Installed at 10' height. $ 47,686.56 $ 47,686.56 35 $ 47,686.56 $ 47,686.56 35 5 128 EA Two (2) counter - rotating top carriers per panel With self lube steel ball bearing wheels with Delron covered tires $ 22.27 $ 2,851.18 35 $ 22.27 $ 2,850.56 35 6 1 EA Self- support structure for track system Every 4' on center $ 68,050.38 $ 68,050.38 35 $ 68,050.38 $ 68,050.38 35 S S SECTION C - CLOSEOUT MATERIAL 7 1 1 1 EA ISafety and Operations Manual for wall system lincludes specified items $ 140.00 $ 140.00 $ 140.00 $ 140.00 SECTION D - WARRANTY 8 1 1 YR lRequired Parts and Labor Warranty, effective upon lcompletion of installation $ 16,369.74 $ 16,369.74 $ 16,369.74 $ 16,369.74 9 1 1 YR 10ptional Extended Warranty, including parts jandlabor $ 22,291.14 $ 22,291.14 $ 22,291.14 $ 22,291.14 S SECTION E - MISCELLANEOUS PRODUCTS 10 EA Miscellaneous equipment, hardware, etc. as needed to complete turn -key project Total Cost of Products $ 285,980.31 $ 285,979.76 NV I t: PHIL INU SHALL INU LU UC ALL UUS 1 S 1 V LE UVE N UUUUS AS SNCC:Ih II=U F-Qb UE 5I INAI IVN. Exhibit 1 - Best and Final Offer (BAFO) Respondent's Name: Hufcor Texas Group RFP 5301 - Pricing Sheet for SUPPLY AND INSTALLATION OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY The respondent shall complete the following section, which directly corresponds to the specification. The con troctorshall not make changes to this format. SECTION F - REQUIRED LABOR RATES Original Proposal BAFO Proposal Item # CITY UOM Description Description 2 Unit Price Extended Price Unit Price Extended Price 11 1 EA Installation of Movable Wall System in the specified (In -depth demonstration and training 14 40 HR locations. Pricing is based on Turn -Key Install $ 40,500.00 $ 40,500.00 $ 40,500.00 $ 40 500.00 12 1 EA high- liability special operations team members. system) S 421.88 S 16,875.00 S 421.88 S 16,875.20 Testing /Troubleshooting of installed equipment. Testing Completed at Final Walk -Thru $ 1,350.00 $ 1,350.00 $ 1,350.00 $ 1,350.00 Use -of- equipment demonstration and training for (Basic operational functions of the wall 13 1 EA designated public safety instructors. system) $ 2,700.00 1 S 2,700.00 $ 2,700.00 1 $ 2,700.00 Total Cost of Labor $ 44,550.00 $ 44,550.00 SECTION G - OPTIONAL LABOR RATES Original Proposal BAFO Proposal Item # CITY UOM Description Description 2 Unit Price Extended Price Unit Price Extended Price Supervised demonstration & training of system's (In -depth demonstration and training 14 40 HR operational procedures by minimum of 3 experienced to show full capabilities of the wall high- liability special operations team members. system) S 421.88 S 16,875.00 S 421.88 S 16,875.20 Payment Term Discounts Payment terms for the City of Denton are typically 30 days. Please indicate the additional discount extended to each monthly invoice that is paid within the time period indicated below. Payment Terms' Original Additional Discount % SAFO Additional Discount % " Invoice Paid in 20 days NA NA Invoice Paid in 15 days NA NA Invoice Paid in 10 days NA NA Contract total: $ 330,529.76 Exhibit F Contract # 5301 City of Denton's Insurance Requirements CITY OF DENTON RFP FOR PURCHASE OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY ATTACHMENT A INSURANCE REQUIREMENTS AND WORKERS' COMPENSENTATION REQUIREMENTS Respondent's attention is directed to the insurance requirements below. It is highly recommended that respondents confer with their respective insurance carriers or brokers to determine in advance of Proposal /Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low respondent fails to comply strictly with the insurance requirements, that respondent may be disqualified from award of the contract. Upon contract award, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of contract award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractors are strongly advised to make such requests prior to proposal /bid opening, since the insurance requirements may not be modified or waived after proposalybid opening unless a written exception has been submitted with the proposal /bid. Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted. Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A- VII or better. Any deductibles or self- insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self- insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Liability policies shall be endorsed to provide the following: ■ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. ■ That such insurance is primary to any other insurance available to the Additional PAGE 43 OF RFP #5301 CITY OF DENTON RFP FOR PURCHASE OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition PAGE 44 OF RFP #5301 CITY OF DENTON RFP FOR PURCHASE OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [X] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance PAGE 45 OF RFP #5301 CITY OF DENTON RFP FOR PURCHASE OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. Professional Liability Insurance Professional liability insurance with limits not respect to negligent acts, errors or omissions in required under this Agreement. Builders' Risk Insurance less than $1,000,000.00 per claim with connection with professional services is Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. PAGE 46 OF RFP #5301 CITY OF DENTON RFP FOR PURCHASE OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY ATTACHMENT A [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate ")-A copy of a certificate of insurance, a certificate of authority to self - insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing PAGE 47 OF RFP #5301 CITY OF DENTON RFP FOR PURCHASE OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY coverage for all persons providing services on the project; and 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified snail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; PAGE 48 OF RFP #5301 CITY OF DENTON RFP FOR PURCHASE OF MOVABLE WALL SYSTEM FOR PUBLIC SAFETY TRAINING FACILITY 6, notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self - insured, with the commission's Division of Self - Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. PAGE 49 OF RFP #5301 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Lance Cunningham at 349 -7140 ACM: Bryan Langley � -A SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase by the City of Denton, Texas of Forward Marketing Modeling Software in support of the Energy Marketing Organization of Denton Municipal Electric from LCG Consulting in an amount not -to- exceed $309,000; providing for the expenditure of funds therefor; and providing an effective date (RFP 5424- awarded to LCG Consulting in the not -to- exceed amount of $309,000). The Public Utilities Board recommends approval (6 -0). RFP INFORMATION This RFP is for the purchase of software which is required by the Energy Management Organization (EMO) of Denton Municipal Electric to provide the ability to "fundamentally" model the electric forward market, model forward congestion, and project future load zones prices due to changes in transmission topology and generation. The software is a required step in the implementation of the EMO. In order to ensure that the EMO staff can make the best possible decision regarding market purchases, sales, and interpreting future transmission congestion, this software is required. The total contract cost for the software and three (3) years of licensing is $309,000. The annual contract can be broken down into the following items: 1. UPLAN Network Power Model, Licensing $ 80,000 2. Application Programming Interface (API) $ 8,000 3. 2014 ERCOT Database $ 10 000 4. ERCOT Market Tools $ 5,000 Total first year Cost $ 103,000 5. Year 2, cost $ 103,000 6. Year 3, cost $ 103,000 Three year total contract cost $ 309,000 Agenda Information Sheet February 4, 2014 Page 2 RFP INFORMATION (CONTIUNED) Requests for Proposals were sent to four hundred forty -two (442) prospective suppliers of this item. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Staff is not aware of any local vendors that supply this product. Two responsive (2) proposals were received (Exhibit 1- Initial Pricing Sheet). Proposals were evaluated based upon published criteria, including price, delivery and probable performance by the supplier. Both vendors were contacted to provide a Best and Final Offer (BAFO) which is shown on Exhibit 2. The BAFO Evaluation amounts on Exhibit 2 are based on a quantity of two (2) software licenses. The BAFO resulted in LCG Consulting waiving the $5,000 on -site training fee. Staff will not require training and elected not to include the proposed travel expense of $1,000 as part of the contract. In addition, LCG Consulting offered a 2% early payment discount, which will result in a $6,180 savings annually over the three year period. LCG provided the lowest overall price and had the highest technical evaluation based upon the published technical requirements such as: 1. Model inputs; generation, transmission, load, special protection schemes, fuel prices, and other defined inputs. 2. The ease of use for the Application Programming Interface (API) 3. User Reporting to include standard and customized reports 4. Model complexity of use Additionally, the software provided by LCG Consulting (UPLAN) is used by the ERCOT ISO and several other entities within ERCOT and has a better technical solution to the specifics of the ERCOT market. In summary, the evaluation team determined that LCG's software most effectively meets the technical requirements of the RFP, and will provide the best value for the City of Denton. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On January 27, 2014, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Award the purchase of Forward Marketing Modeling Software in support of the Energy Marketing Organization of Denton Municipal Electric from LCG Consulting in an amount not - to- exceed $309,000. Agenda information Sheet February 4, 2014 Page 3 PRINCIPAL PLACE OF BUSINESS LCG Consulting Los Altos, CA ESTIMATED SCHEDULE OF PROJECT This contract will be in effect through February 4, 2017. FISCAL INFORMATION The software and licensing will be funded from operating account 600002.7804.5750A. Requisition 4117374 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: Pricing Sheet Exhibit 2: Evaluation Ranking /Best and Final Offer Exhibit 3: Public Utilities Board Draft Minutes Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance 1 -.CIS -File 5424 Exhibit 1 RFP 5424 - Pricing Sheet for Forward Market Modeling Software for the Energy Management Organization Item # EST. QTY I DOM I Product Description Section 1: Cost of Required Services as listed in the RFP 1 1 LS System Hardware and Llcense.(TWO Concurrent users) - UPLAN NPM, Volatility & Maintenance Model +ORDC Logic Z LS Travel Expenses (number of trips and cost per trip) One-year Warranty (Lump Sum) 3 Alternative offerred by LGC- 2 day web based training In lieu of on site training Support (One year concurrent with warranty) 4 100 Software Upgrade at end of Warranty (OPTIONAL) 5 Application Programming Interface Cnrfinn 9. r—t of rinfinnal Cnnrirnc Item # EST. QTY DOM Product Description 6 1 LS On -Site Training 7 1 LS Travel Expenses (number of trips and cost per trip) ALT 50 Alternative offerred by LGC- 2 day web based training In lieu of on site training TOTAL iectlon 3: Cost of Optional Database: em #1 EST. QTY I DOM 1 Product Description OPT 1 1 1 ITS JOPTION Offerred by LGC Consulting- 2014 ERCOT Database (Generation, Loads, Transmission, Contingencies, Fuel Forecast) TOTAL Payment Terms. Invoice Paid in 20 days Invoice Paid in 15 days Invoice Paid in 10 days Grand Total: c a° a a° LGC Consulting Ins Alt., _ rA Unit Cost TOTAL S 5,000.00 '3 Day on -site training $ 5,000.00 $ 1,000.00 $ 1,000.00 free free $ 6,000.00 y4,000.UU Unit Cost TOTAL S 10,000.00 $ 10,000.00 Is 10,000.00 Additional Discount% 2.00% 2.00% 2.00% Energy Exemplar, LLC Rnsavilla_ rA Unit Cost TOTAL S 8,000.00 01 Doysunspac[f"" $ 8,000.00 $ 1,500.00 $ 1,500.00 10 $ 9,500.00 40 —®"' 50 Unit Cost TOTAL S 8,000.00 01 Doysunspac[f"" $ 8,000.00 $ 1,500.00 $ 1,500.00 10 $ 9,500.00 i.�iwrawnn Additional Discount % 0.00% 0.00% 0.00% EVALUATION 10 10 40 40 50 50 100 100 Exhibit 2 RFP 5424 - Pricing Sheet for Forward Market Modeling Software for the Energy Management Organization BAFO EVALUATION Item# EST.QTY I UOM Product Description Section 1: Required System Components - 1 3 AN System Hardware and Licenses )TWO C,n went ,$) 2 ' AN One -year Warranty iLU pS—) 3 AN Support iOne year co ncu,r with warranty) 4 AN Software Upgrade at e nd of Warranty )OPTIONAL) 5 3 AN Application Programming In— f-6 3 AN PLEXOS Connect Client Server 7 3 AN 2014 ERCOT Database iGenerari Loads, Transm n, Contingencies, F-1 Forecast) Section 1 TOTAL: Section 2: Trainina: =MMProduct TOTAL toas Naived :TOTAL 8,000.00 OEM� $ 1,000.00 ' 4'I3iir.LYJPIG\i Grand Total: Section 3: Optional: Item# EST.QTY I UOM Product Description OPT 1 3 1 AN JOPTION - ERCOTMarlcet Took Section 3 TOTAL: LCG Consulting Los Altos. CA $ 294,000.00 Unit Cost TOTAL toas Naived :TOTAL 8,000.00 $ 1,000.00 $ 1,000.00 Is 1,000.00 $ 295,000.00 Energy Exemplar, LLC Roseville. CA u Unit Cost :TOTAL 8,000.00 1,500.00 $ 317,375.00 Unit Cost I TOTAL I Unit Cost TOTAL 5 5,000.00 $ 15,000oo I not available Payment Term Discounts Payment Terms Additional OISOQUnt % Ad dlttonal Dlscuunt % Invoice Paid in 20 days 2.00% 0.00 Invoice Paid in 15 days 2.00% 1 0.00% Invoice Paid in 10 days [�2.00% 1 0.00% 1 2 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 38 39 40 41 42 43 44 45 46 47 Exhibit 3 DRAFT MINUTES PUBLIC UTILITIES BOARD January 27, 2014 After determining that a quorum 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, January 27, 2014 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901A Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy Robinson, Phil Gallivan Barbara Russell and Leonard Herring Absent: Lilia Bynum Ex Officio Members: Howard Martin, ACM Utilities Absent: George Campbell City Manager OPEN MEETING: CONSENT AGENDA: 8) Consider a recommendation of approval of an ordinance approving the purchase by the City of Denton, Texas of Forward Marketing Modeling Software from LCG Consulting, Incorporated (LCG) in the not -to- exceed amount of $ 309,000, in support of the Energy Marketing Organization of Denton Municipal Electric (File No. 4 RFP 5424). Chair Smith pulled this item to give Mike Grim a chance to remind the Board what this software will accomplish. Mike Grim, Executive Manager Power Legislative and Regulatory Affairs, had a brief presentation for this item. To recap there has been a briefing on August 12 and December 9 regarding the tools needed for this project including personnel, software & hardware and sound management execution. The discussions regarding the tools needed started in June 2013. The Board approved a total $1,148,490 for software packages that staff would need. The dollar amount for this item has already been approved. The software is UPLAN, it is forward market modeling software that is used by ERCOT. Purchasing wanted DME to contract for three years that is why the amount is $309,000. This isn't anything new but has already been approved. Grim asked Lance Cunningham, xxx, if this is the last software to be purchased. Cunningham answered there is one more that is a large dollar item that is the settlement piece. An RFP will be put together for this item it will be competitively bid. Grim added this software was also competitively bid and two companies responded. Smith asked what this software will accomplish. Grim stated it will provide forward market modeling. It will take a look at the future markets, natural gas and power. It will allow for anticipation. Draft Minutes of the Public Utilities Board Meeting January 27, 2014 Page 2 of 2 1 Herring then stated that he knows money was budgeted and people have been hired, is 2 DME still in budget. Grim answered absolutely. Grim then explained that staff that is being 3 hired is competitive there is a great market for these people. DME is not higher than others but 4 actually on the low end. DME has been fortunate with getting some of the new people. 5 6 Motion was made to approve item 8 by Board Member Cheek with the second by Board 7 Member Gallivan. The vote was 6 -0 approved 8 9 Adjournment 10:43 a.m. ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE BY THE CITY OF DENTON, TEXAS OF FORWARD MARKETING MODELING SOFTWARE IN SUPPORT OF THE ENERGY MARKETING ORGANIZATION OF DENTON MUNICIPAL ELECTRIC FROM LCG CONSULTING IN AN AMOUNT NOT -TO- EXCEED $309,000; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5424- AWARDED TO LCG CONSULTING IN THE NOT -TO- EXCEED AMOUNT OF $309,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the purchase of Forward Marketing Modeling Software 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 NUMBER VENDOR AMOUNT 5424 LCG Consulting $309,000 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 5424 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 , 2014 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY MIN APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: RFP 5424 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND FORWARD MARKET MODELING SOFTWARE (RFP 5424 ) THIS CONTRACT is made and entered into this day of A.D., 2014, by and between 1�CG CONSUI. ;IN(:i a corporation, whose address is 4962 El Camino Real, Suite 112, Los Altos, CA 94022, hereinafter referred to as "Supplier," and the CITY OF DENTON, TEXAS, a home rule 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 45424 Forward Market Modeling Software, 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 hereto, or on file, and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A ") (b) City of Denton's RFP 5424 (on file at the office of the Purchasing Agent) (c) Standard Terms and Conditions (Exhibit "B ") (d) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C "). (e) Supplier's Proposal. (Exhibit "D "); These documents make 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 5424 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY RFP 5424 1 C "ta(sul .l BY" AtJ 1 1 O10Zt;.D SIGNATURE Date: January 17, 2014 Name: Rajat Deb o.l. "itie: President 650 - 962 -9670 PHONE NUMBER 650 - 962 -9615 FAX NUMBER CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: Exhibit A Special Terms and Conditions Total Contract Amount The contract total shall not exceed $309,000. Pricing shall be per Exhibit D attached. Delivery Lead Time Products or services will be delivered within 15 days after the receipt of order from the City. Additional Items Supplier agrees to provide a resulting data only view user, at no additional cost. Exception Supplier has taken exception to Item 7 on page 8 of the RFP. The item has been revised as follows: LCG's proprietary UPLAN software model, as well as all other models and databases commercially developed and offered to the City in this proposal, will remain the sole property of LCG Consulting. Specifically, the City will receive the right to use these models and databases during the license term with payment of the agreed upon license fees, the City will not become the owner of these models, databases or any confidential and proprietary information contained therein. Term The contract term will be one (1) year, effective from date of award. The City and the Supplier shall have the option to renew this contract for an additional two (2) one -year periods. The contract shall commence upon the date of signature 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. RFP 5424 Exhibit B City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's solicitation are applicable to Contracts /Purchase Orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal response, Invoice or Statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the Contract /Purchase Order these written provisions will take precedence. By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall apply only to a Solicitation to purchase Services to be performed principally at the City's premises or on public rights -of -way. 1. SUPPLIER'S OBLIGATIONS. The Supplier shall fully and timely provide all deliverables described in the Solicitation and in the Supplier's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Supplier's name and address, (b) the City'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 4 boxes, and (d) the number of the container bearing the packing list. The Supplier shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Supplier grants to the City a non - exclusive, limited term, and entity specific license for the use of the deliverables. Title to the deliverables shall remain with Supplier. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non - conforming deliverables. If the City has the right to inspect the Supplier's, or the Supplier's Subcontractor's, facilities, or the deliverables at the Supplier's, or the Supplier's Subcontractor's, premises, the Supplier shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. RFP 5424 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non - complying tender shall constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to the sites where the Supplier is to perform the services as required in order for the Supplier to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Supplier's obligations under the contract. The Supplier hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. 10. WORKFORCE A. The Supplier shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the Supplier that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( "IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Supplier shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph. Environmental Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Supplier shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation RFP 5424 charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Supplier's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Supplier's invoice. C. Invoices for labor shall include a copy of all time- sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Supplier shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Supplier to such extent as may be necessary on account of- i. delivery of defective or non - conforming deliverables by the Supplier; ii. third party claims, which are not covered by the insurance which the Supplier is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or suppliers, which is not covered by insurance required to be provided by the Supplier; v. reasonable evidence that the Supplier's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Supplier to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Supplier to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Supplier agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Supplier. The City shall provide the Supplier written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Supplier, unless otherwise stated in the contract terms. RFP 5424 15. FINAL PAYMENT AND CLOSE -OUT: A. If a DBE /MBE /WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier is required to submit a Contract Close -Out MBE /WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Supplier is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Supplier, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Supplier to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Supplier against the City other than those previously asserted in writing and not yet 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 this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Supplier as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Supplier shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Supplier shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Supplier which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Supplier identified Subcontractors in a DBE /MBE /WBE agreed to Plan, the Supplier shall comply with all requirements approved by the City. The Supplier shall not initially employ any Subcontractor except as provided in the Supplier's Plan. The Supplier shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Supplier is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Supplier by a Subcontractor shall be pursuant to a written contract between the Supplier and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Supplier. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Supplier in sufficient time to enable the Supplier to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Supplier, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Supplier is RFP 5424 required to indemnify the City. C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Supplier is responsible for the Supplier's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY - PRICE: A. The Supplier warrants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. B. The Supplier certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, or otherwise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Supplier shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Supplier warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Supplier, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either repair the non - conforming deliverables, or replace the non- conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Supplier is unable or unwilling to repair or replace defective or non - conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Supplier, and purchase conforming deliverables from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Supplier warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any RFP 5424 attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Supplier is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Supplier, and purchase conforming services from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Supplier shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. if any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Supplier is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Supplier will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Supplier's Offer, or in any report or deliverable required to be submitted by the Supplier to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Supplier, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Supplier's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Supplier shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Supplier, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required to be RFP 5424 submitted by the Supplier to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Supplier if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Supplier shall negotiate an equitable adjustment for costs incurred by the Supplier in the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Supplier from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Supplier, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and /or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Supplier, the Supplier's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non - conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE SUPPLIER, OR THE SUPPLIER'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE SUPPLIER'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE SUPPLIER (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in the solicitation document. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements. i. The Supplier shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Supplier shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Supplier must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Supplier shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Supplier hereunder and shall not be construed to be a limitation of liability on the part of the Supplier. iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. RFP 5424 v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Supplier, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Supplier. xi. The Supplier shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Supplier shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. All deductibles or self - insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Supplier. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under or concerns the Contract, or which could have a material adverse affect on the Supplier's ability to perform thereunder, the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Supplier. Such notice to the City 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 whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Supplier shall be sent to the address specified in the Supplier's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. RFP 5424 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the Supplier to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants to the City that: (i) the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Supplier in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Supplier does not know of any valid basis for any such claims. The Supplier shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Supplier's breach of any of Supplier's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co- counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Supplier. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Supplier may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know -how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information "). Supplier acknowledges and agrees that the Confidential Information is the valuable property of the City and /or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and /or its licensors. The Supplier (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Supplier promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City, by entering into this Contract, receives the right to use the deliverables — UPLAN models, database and related documentation — during the contract period, but does not become the owner of the deliverables in any manner whatsoever. The City shall not copy, modify, duplicate, reproduce, license, sublicense, assign, or otherwise transfer or convey in any manner the deliverables or any right in the deliverables, in whole or in part, to any other entity without the prior written consent of Supplier. The deliverables are protected by copyright, trade secrets, and trademark law. The City acknowledges that the deliverables - UPLAN models, database and related documentation — are the property of Supplier and contain valuable confidential, unpublished information developed by Supplier at great expense, including data processing algorithms, innovations, and concepts. The City agrees to use all reasonable efforts to protect the deliverables - UPLAN models, database and related documentation — from any unauthorized reproduction, distribution, disclosure, use, or publication. Upon expiration or termination of the Contract, the City shall discontinue its use of the deliverables and all user - accessible copies of the deliverables shall be immediately removed from the City's network and /or stand -alone computers. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Supplier shall not advertise or publish, without the City's prior consent, the fact that the RFP 5424 City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Supplier, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Supplier or any agent or representative of the Supplier to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Supplier in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision- making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Supplier shall render the Contract voidable by the City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B). 44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The Supplier's services shall be those of an independent supplier. The Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. 45. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City. Any attempted assignment or delegation by the Supplier shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Supplier or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre - printed or similar terms on any the Supplier invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair RFP 5424 to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision- making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Supplier agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, RFP 5424 it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable, in addition to the specific federally funded requirements. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Supplier, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - l0d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Supplier shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate ". RFP 5424 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this solicitation, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded supplier or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the supplier. 59. PREVAILING WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. htti)://www.access.sit)o.P-ov/davisbacon/tx.htniI 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Supplier must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Supplier shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Supplier is responsible for both federal and State unemployment insurance coverage and standard Worker's Compensation insurance coverage. Supplier shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Supplier or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Supplier's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug - free work environment; and the final rule, government -wide requirements for drug -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the supplier shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Supplier and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Supplier shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Supplier shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Supplier shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non - performance or delay in performance. 65. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the RFP 5424 Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Supplier shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Supplier shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period 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 governmental entity that has authority to review records due to federal funds being spent under the Contract. RFP 5424 EXHIBIT C CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doinq business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental Received entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. LCG CONSULTING 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7'h business day after the date the .)riginally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. None Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? 0 Yes KI No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? El Yes I x I No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? EJ Yes 1" I No D. Describe each affiliation or business relationship. 4 ajja Deb, President of LCG Consulting January 17, 2014 Signature of person doing business with the governmental Date entity RFP 5424 Exhibit D RFP 5424 - Forward Market Modeling Software for the Energy Management Organization Product Prolaosal Pricing: LCG Consulting Item # EST. QTY uom Product Description Unit Price Section 1: Cost of Required Services as listed in the RFP 1 3 AN System Licenses (TWO Concurrent users). $ 80,000.00 $ 2 3 AN IT One -year Warranty (Lump Sum) Included in the 3 3 AN Support (One year concurrent with warranty) annual license '— 4 3 AN I 'Software UpRrade at end of Warranty 5 3 AN Application Programming Interface $ 8,000.00 $ 2014 ERCOT Database (Generation, Loads, Transmission, Contingencies, Fuel $ 10,000.00 $ OPT 1 3 AN Forecast) OPT 2 3 AN ERCOT market tool - for transmission outages and IIR references to generators $ 5,000.00 $ Payment Term Discounts Payment terms for the City of Denton are typically 30 days. Please indicate the additional discount extended to each monthly invoice that is paid within the time period indicated below. Estimated Delivery ARO Extended Price (Days) 240,000.00 5 days 24,000.00 5 days 30,000.00 15,000.00 S days 309,000.00 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Vance Kemler at 349 -8044 ACM: Bryan Langley � -A SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for a Linear Motion Shaker Mud Cleaner for the City of Denton Landfill Wheel Wash Facility; providing for the expenditure of funds therefor; and providing an effective date (RFP 5291 - awarded to Tri -Flo International, Inc. in the not -to- exceed amount of $125,051.72). The Public Utilities Board recommends approval (6 -0). RFP INFORMATION This Request for Proposals is for the purchase and installation of a Linear Motion Shaker Mud Cleaner to be used at the City of Denton Landfill Wheel Wash Facility. The mud cleaner is designed to remove coarse solids from a liquid to be recovered or recycled. It will be used to remove mud, silt, sand, and grit, from the wheel wash water settlement pit which helps to keep the water jets from getting clogged. The attached Public Utilities Board Agenda Information Sheet provides a detailed explanation of the equipment use (Exhibit 1). Request for Proposals (RFP) were sent to ninety (90) prospective suppliers, including one (1) Denton firm. In addition, notice was advertised in the local newspaper, and the specifications were placed on the City of Denton Materials Management website for prospective suppliers to download. One (1) responsive proposal was received meeting the minimum qualifications. The pricing sheet showing the responsive proposal and also Best and Final Offer (BAFO) is included as Exhibit 2. A BAFO was completed that increased the total cost by $1000. The original proposal submitted from the firm took exception to the freight and shipping terms. This shipping term determines when the title of the equipment passes. The City prefers shipping Free On Board (FOB) Destination to limit risk due to damages or losses when the product is shipped. The RFP requested these terms; however Tri -Flo took exception. This requirement was negotiated back into the proposal for the additional cost of $1,000. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On January 13, 2014, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. Agenda Information Sheet February 4, 2014 Page 2 RECOMMENDATION Approve the purchase of Linear Motion Shaker Mud Cleaner from Tri -Flo International, Inc. in the not -to- exceed amount of $125,051.72. PRINCIPAL PLACE OF BUSINESS Tri -Flo International, Inc. Conroe, TX ESTIMATED SCHEDULE OF PROJECT The equipment will be delivered 8 -10 weeks from issuance of a purchase order. FISCAL INFORMATION These services will be funded from Solid Waste job cost account 660610594.1355.30100. Requisition 4117254 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: Public Utilities Board Agenda Information Sheet Without Exhibits Exhibit 2: Pricing /Evaluation Sheet Exhibit 3: Public Utilities Board Draft Minutes Exhibit 4: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance 1 -.CIS -File 5291 Exhibit I PUBLIC UTILITIES BOARD AGENDA ITEM #1 AGENDA INFORMATION SHEET AGENDA DATE: January 13, 2014 DEPARTMENT: Solid Waste ACM: Jon Fortune n SUBJECT Consider approval of RFP # 5291 for the purchase of a Shaker and Mud Cleaner from Tri -Flo International, Incorporated, of Conroe, Texas, and for the delivery and installation of the equipment at the Landfill Wheel Wash Facility in the amount of $125,051.72. FILE INFORMATION During fiscal year 2010 the PUB recommended the Solid Waste Department award constriction of the wheel wash facility to Caliber Constriction, Sanger, Texas. The project was satisfactorily completed, and the wheel wash facility has operated since providing wheel washing services. Maintenance on the facility includes draining the water in the settlement pit approximately every four to six weeks and removing the mud, silt, sand, and grit materials washed into the pit during wheel wash operations. Maintenance requires pumping out the water pit, and using a loader, dump trick or roll -off trick, and a vacuum trick to remove the mud and other debris. Then the pit is refilled with clean water for washing purposes. The periodic maintenance period takes approximately eight hours for two men to complete. The Solid Waste Department recently leased a linear motion shaker (mud cleaner) for the wheel wash for testing purpose to see if it would be beneficial in removing the mud, silt, sand, and grit from the wheel wash water, thereby reducing or eliminating the work requirement to clean out the wheel wash settlement pit. During the test period, six months, the mud cleaner kept the wheel wash water clean for the six months that it was operational at Denton's facility. During this period the water jets in the wash facility remained clear of debris, and no work time was spent unclogging the water jets. The system maintained high volume low pressure flows with no operational problems. The mud cleaner was kept running during landfill operating hours, and was evaluated by staff to provide excellent water cleaning capabilities. All mud, silt, sand, and debris collected by the linear motion shaker was dewatered and deposited into a 20 yard container placed below the shaker. The 20 yard container was emptied in the landfill approximately every two weeks. The wheel wash linear motion shaker is designed to remove coarse solids from a liquid to be recovered or recycled. It satisfactorily provides this service at Denton's wheel wash facility. The equipment requires limited preventive maintenance, saving considerable staff time, and it is anticipated to provide years of trouble free service. AIS — PUB Agenda Item 41 January 13, 2014 Page 2 of 2 Some recognized benefits of the linear motion shaker are that it: • Removes all stone, plastics, mud, sticks, etc. from the wash water. • Keeps the jet nozzles clear, unclogged, and operational. • Saves draining and refilling time and water costs several times a year. With the shaker, it's anticipated the pit would require cleaning approximately every three to four months, versus every two to four weeks without the shaker. • Keeps the silt film from developing on vehicle windshields and mirrors. If the purchase is recommended and awarded, the Tri -Flo staff would deliver, install, and train Denton's staff on the proper operational and maintenance requirements of the equipment. PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS) None. RECOMMENDATION Award the equipment purchase to Tri -Flo International in the amount of $125,051.72. PRINCIPAL PLACE OF BUSINESS Tri -Flo International, Incorporated Conroe, Texas ESTIMATED SCHEDULE OF PROJECT This capital asset will be purchased and installed for operations upon the completion of the contractual purchase document, and upon approval by the City Council. If recommended, staff projects to complete the purchase during February 2014. FISCAL INFORMATION The funding source for the equipment purchase is Solid Waste job cost account number 660520592.1355.30100. EXHIBIT 1. Exhibit 1 — Tri -Flo International Pricing Sheet Respectfully submitted: A. Vance Kemler General Manager, Solid Waste Services EXHIBIT 2 RFP # 5291 DATE: 7/11/13 Description: Purchase and Installation of Mud Cleaner DESCRIPTION Principle Place of Bus*mess* VENDOR Triflo International Willis, TX BAFO Triflo International Willis, TX Item 1: Mud Cleaner $99,916.00 $99,916.00 Item lb: Shaker Screens $2,240.00 $2,240.00 Item lc: Grinder submersible pumps $19,045.72 $19,045.72 Item 2: Installation, set -up, etc $2,850.00 $2,850.00 Prepay and Add Freight $1,000.00 Total Cost of Materials $124,051.72 $125,051.72 15 Indicators of Probable Performance 15 5 Delivery 5 20 Compliance with Specifications 20 60 Price 60 100 ITOTAL EVALUATED SCORE 100 1 2 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 3 DRAFT MINUTES PUBLIC UTILITIES BOARD January 13, 2014 After determining that a quorum 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, January 13, 2014 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901A Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy Robinson, Phil Gallivan Barbara Russell and Lilia Bynum Absent: Leonard Herring Ex Officio Members: Howard Martin, ACM Utilities Absent: George Campbell City Manager OPEN MEETING: CONSENT AGENDA: 1) Consider approval of RFP 4 5291 for the purchase of a Shaker and Mud Cleaner from Tri -Flo International, Incorporated, of Conroe, Texas, and for the delivery and installation of the equipment at the Landfill Wheel Wash Facility in the amount of $125,051.72. Motion was made to approve item I by Board Member Robinson with the second by Board Member Russell. The vote was 6 -0 approved. Adjournment 10:32 a.m. Exhibit 4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND TRI -FLO INTERNATIONAL, INC (RFP 5291) THIS CONTRACT is made and entered into this day of A.D., 2013, by and between Tri -flo International, Inc a corporation, whose address is PO Box 2626, Conroe TX 77305, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule 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 tolbe obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products and/or services in accordance with the City's document l l77P Jt 5291 Purchase and Installation of a Mud Cleaner a copy of which is on file at the office of Purchasing agent and incorporated herein for all purposcs. The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Request for Proposal (on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "B"); (d) Insurance Requirements (Exhibit "C "); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "D "); (f) Contractor's Proposal. (Exhibit "E"); These documents make 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 # 5291 Exhibit 4 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY as APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ffim RFP # 5291 CONTRACTOR 1I""r Q ` AUT1r; . RIZED SIGNATURE Date: Name:��, Title 1 PHONE NUMBER w w., r, 7AD I0...000 EMAIL ADDRESS CITY OF DENTON, TEXAS BY: __w.... GEORGE C. CAMPBELL, CITY MANAGER Date: Exhibit 4 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for products and services shall not exceed $125,051.72. Pricing shall be per Exhibit E attached. Delivery The contract shall commence upon the issuance of a Purchase Order by the City of Denton with delivery and installation complete within 10 weeks after the receipt of the order. Shipping Terms Freight shall be FOB Destination, 1527 S. Mayhill Road, Denton, TX 76208. Payment Terms Payment will be made after acceptance by the City, net 30. RFP #5291 Exhibit 4 Exhibit B Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City's solicitation are applicable to Contracts/Purchase Orders issued by the City hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Bidder, Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Sellers Solicitation Response, Invoice or Statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the Contract/Purchase Order these written provisions will take precedence. By submitting an Offer in response to the Solicitation, the Contractor agrees that the Contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE /TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time - sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work -hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. RFP # 5291 Exhibit 4 4. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made fora reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as may be necessary on account of- i. delivery of defective or non - conforming deliverables by the Contractor; ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are I filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor; v. reasonable evidence that the Contractor's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded Contractor who is in arrears to the City for delinquent taxes, the City may,offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 5. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. 6. FINAL PAYMENT AND CLOSE -OUT: RFP # 5291 Exhibit 4 A. If a DBE /MBE /WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close -Out MBE /WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 7. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of I% or greater. If an overpayment of 1 % or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books ", "records ", "documents" and "other evidence ", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 8. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE /MBE/WBE agreed to Plan, the Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If 'a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: RFP # 5291 Exhibit 4 i. require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition, to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Contractor, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors juste as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor ishall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 9. WARRANTY - PRICE: A. The Contractor warrants the prices quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractorl certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other Contractor or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 10. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery RFP # 5291 Exhibit 4 of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 11. ACCEPTANCE OF INCOMPLETE OR NON - CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non - conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non - conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 12. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 13. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 14. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 15. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the RFP # 5291 Exhibit 4 Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 16. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all further work pursuant to � the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 17. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 18. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however,' in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 19. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non - conforming deliverables, negligence, willful misconduct or a RFP # 5291 Exhibit 4 breach of any legally imposed strict liability standard. B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE' OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 20. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in EXHIBIT C The successful Contractor shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Contractor shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street RFP # 5291 Exhibit 4 Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established 'by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Contractor shall be responsible for premiums, deductibles and self - insured retentions, if any, stated in policies. All deductibles or self - insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 21. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City 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 whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 22. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or RFP # 5291 Exhibit 4 Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901 B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 23. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 24. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co- counsel on the City's behalf. Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor. 25. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and /or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know -how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information "). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The RFP # 5291 Exhibit 4 Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 26. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made - for -hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made -for- hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and _interest in and to such deliverables. With respect to such work made - for -hire, the Contractor agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work - made - for -hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Contractor's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 27. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 28. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. RFP # 5291 Exhibit 4 29. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 30. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the City with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Contractor in providing such gratuities. 31. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision - making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall'be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire (Exhibit D). 32. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City, Texas, or his designee under this agreement. 33. ASSIGNMENT - DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. RFP # 5291 Exhibit 4 34. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 35. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pare- printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 36. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shall control, unless otherwise defined in the Contract. 37. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision - making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. RFP # 5291 Exhibit 4 38. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 39. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 40. HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Da y (observed) :_ .._.._.... If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 5:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 41. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 42. NON - SUSPENSION OR DEBARMENT CERTIFICATION: The City is prohibited from contracting with or making prime or sub - awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal RFP # 5291 Exhibit 4 Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non - Procurement Programs, the State of Texas, or the City. 43. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 44. BUY AMERICAN ACT - SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable, in addition to the specific federally funded requirements. A. Definitions. As used in this paragraph i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty -free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means - (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit -documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate ". RFP # 5291 Exhibit 4 45. RIGHT TO INFORMATION: The City reserves the right to use any and all information presented in any response to this solicitation, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 46. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 47. PREVAILING WAGE RATES: All respondents will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. httj2://www.access.g]2o.gov/davisbacon/tx.html 48. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 49. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on -site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W -2's to common law employees. Respondent is responsible for both federal and State unemployment insurance coverage and standard Worker's Compensation insurance coverage. Respondent shall ensure compliance with all federal and State tax laws and withholding requirements. The City shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 50. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100 -690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug -free work environment; and the final rule, government -wide requirements for drug -free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 51. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government- owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City Procurement Manager in writing of any such damage within one (1) calendar day. RFP # 5291 Exhibit 4 52. FORCE MAJEURE: The City, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City. In the event of an occurrence under this Section, the Respondent will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Respondent continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Respondent shall immediately notify the City Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non- performance or delay in performance. 53. NON - WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 54. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of any immunities from suit or from liability that the City may have by operation of law. 55. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Respondent shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. RFP # 5291 Exhibit 4 Exhibit C INSURANCE REQUIREMENTS AND WORKERS' COMPENSENTATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time, however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A- VII or better. Any deductibles or self - insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self - insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Liability policies shall be endorsed to provide the following: • Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. • That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. RFP # 5291 Exhibit 4 • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: • Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury, • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than 50$ 0,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. RFP # 5291 Exhibit 4 Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than .,,,,,,, each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This RFP # 5291 Exhibit 4 type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. RFP # 5291 Exhibit 4 ATTACHMENT 1 [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ( "certificate ") -A copy of a certificate of insurance, a certificate of authority to self - insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and RFP # 5291 Exhibit 4 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6, notify the governmental entity in writing by certified mail or personal delivery, RFP # 5291 Exhibit 4 within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self - insured, with the commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. RFP # 5291 Exhibit 4 Exhibit D CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other, person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a USE ONLY person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental Date Received entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. 2 L� Check this box if you are filing an update to a previously filed questionnaire. L (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 71" business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment Income, from the filer of the questionnaire? 0 Yes El No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than Investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? El Yes El No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? E] Yes F1 No D. Describe each affiliation or business relationship. 4 . .... Signature of person __ _... .. on doing business with the governmental entity Date RFP # 5291 Exhibit 4 Exhlblt E RFP # 5291 TRI -F10 XNTERNATION, INC Desen tt011: Purchase and Installation of Mud Cleaner DESCRIPTION QUANTITY UOM UNIT PRICING TOTAL COST It 1: Mud Oeaner WW_ .......... _ 1 HA $ 99,916.00 ��......_ $99,916.00 Item lb: Shakdr Screens ..... _...........- ....... i _.... _. _. � EA ...._. $ 320.00 $2,240.00 Item lc; indersubmersible pumps 2 EA $ 9,522.86 $19,045.72 - ........... Item 2: Instal lotion, set -up, etc 3 DAYS $ 950.00 $2,850.00 Prepay and Add Freight 1 EA $ 1,000.00 $1,000.00 l°oW Cost f:I' Mawflals $125,051.72 RFP 5291 Exhibit 4 �Xl Tri -Flo International, Inc. d P.O. Box 2626 Conroe, TX 77305 Phone Number (936) 856 -8551 Fax Number (936) 856 -5668 E -Mail: info @triflo.com Customer:. City of Denton Texas frtl: Tom Jamieson 281 - 389 -0422 Ai;tdrdsl ;` ` 901 -13 Texas St. Date: 8115/2013 ddrww. Denton, Tx 76209 quoits # E2013 -024D Attn: Karen Smith Frank Gutowski„ 'Karen Smith 940 - 349 -7100 940- 465 -6051 q 940 -349 -8021 1r1t11L'; ' frank.oriowskiclofdenton.com Item Descrt �tton $lM` Unit Price P- xtended =Price° 1 An elevated framed skid with TFI Shaker and Mud Cleaner to clean wash 1 ea $ 99,916.00 $ 99,916.00 water from wheel wash station 2 Screens for shaker decks 7 ea $ 320.00 $ 2,240.00 Skid will be hl h enou h to dischar a dlrt into cuttings box provlded by customer, Frame will have need skids to aCtaoh 11umbN to allow flow back Into weir pits at site. _._ 3 Submerslble rinder pit pump with 100' of head pressure .... . 2 ea $ 9,522.86 ........... $ 19,045.72 E ui ment: 1 each, TFI 148L linear shaker with industrial ossum bell A. high speed linear shaker with two weighted vibrator motors Inlet feed is thru 4 -6" cam lock fitting, customer to provide hose 1 each, TFI 16-4 over 146E mud cleaner shaker with flan ed manifold inlet A high speed Elliptical shaker with a 16 h droc clone manifold 4" cones. 2 each, TFI Grinder pit pump 24HP 3ph1480v160hz motor and starter box 4 'Service tochnlclan to hei om lrr ees install a raN mment and then train 3 ea $ 950.00 $ 2P850 00 employe diem 5 Pre pay and add Frelqht to 1527 S. Ma hill Rd, Denton Tx 76208 1 ea $ _ 1,000.00 $ 1,000.00 _ ........�_. Special otek: Sales tax not included in quoted pricing, Estimated Deliver Date: 8 -10 weeks dependin on backlo at recei t of urchase order and down a ment. ......Standard slrNis 7N.rr... terms are: FREIGHT PRePAIO..�. AND ADD BACK _ ���� ������ ..... Triflo International Inc. 1000 FM 830 Willis, Tx 7`731877318 Terms; Purchase order, due net 30 Cancellation Charge: 100% of Triflo cost at date and time of cancellatio!2.p! s 300 /.. rocs rofit marlin. ........ Quoted pricing is based on current steel prices and is subject to change with out _ notice. Triflo Standard Terms of Sales apply to all sales and will be supplies on request and are found on the back of all Trlllo Invoices Approved By ,',, IT pate: 811512013 7zi, uoteQue. $ 125,051.72 RFP 5291 Exhibit 4 Exhlbit E T 0 rif.10 I M It AM ATI OM At Triflo International 1000 FM 830 Willis, Tx 77318 936- 856 -8551 Fax 936 -856 -5668 Submitted by Tom Jamieson 281 -389 -0422 Date 6/26/13 Request for proposal RFP #5291 purchase and Installation of a mud cleaner (Linear Motion Shaker). After visiting the City of Denton Recycling Land Fill, we determined the necessary equipment needed to remove the mud -clay from the Wheel Wash Station. The wheel wash station pits were filling with mud and clogging the pumps that re -use this water. This mud clogged the jets that spray the water and caused the spray to go everywhere. Our system will get the majority of mud out of the pump system, thereby improving the emptying of the pits and help unclog the spray jets. Our system has a NEMA control panel and will be hooked up and tested at the Recycle Facility. Then we will train the employee's there how to run and maintain the system. Triflo International designs and builds solids separation equipment and general equipment mainly for oil field use. The technology used in drilling mud solids separation Is much the same as used In the system we are selling the City of Denton. Triflo International Is incorporated in the State of Texas. Triflo international is a 32 year old company. Triflo International is considered a small business. Triflo International has sold similar systems to Texas A &M University, College Station, and we have been consulted on Army Corp of Engineers dredging projects that have used our equipment. Triflo International is located at 1000 FM830, Willis, Tx 77318, both offices and manufacturing plant. Tom Jamieson is the project manager, tiamieson@triflo,com; 281- 389 -0422 cell. RFP 5291 Exhibit 4 Exhibit E References Nabors Drilling, Houston Tx Flo -Trend Systems, Houston Tx Black Brush Energy, San Antonio Tx Texas A &M University, College Station Tx Delivery of the shaker system is 8 -10 weeks depending on backlog at time of receipt of deposit and Purchase order. We are requiring a 25% deposit due to the engineering time and Autocad drawing time required to fabricate this special skid. Balance of Invoice is due net 30. RFP 5291 Exhibit 4 Exhibit E CITY OF DENTON RFP FOR PURCHASE OF A MUD CLEANER (LINEAR MOTION SHAKER) X0V REFERENCES Please list three (3) Government references, other than the City of Denton, who can verify the quality of service your company provides, The City prefers customers of similar size and scope of work to this proposal. GOVERNMENT /COMPANY NAME; LOCATION t w CONTACT PERSON AND TITLE: TELEPHONE NUMBER :. :Tit .I SCOPE OF WORK; a CONTRACT PERIOD; REFERENCE ONE REFERENCE TWO x LOCATION: �/ NYNAME: CONTACT PERSON AND TITLE: �' t "'� " .m TELEPHONE NUM h SCOPE OF WORK:..' ".�" CONTRACT PERIOD: GOVERNMENT /COMPANY NAME: LOCATION: I7 t CONTACT PERSON AND TITLE: S TELEPHONE NUMBER: -791= 1 SCOPE OF WORK: CONTRACT PERIO RFP 5291 REFERENCE THREE �e-r S W iti "079 PAGE 53 OF RFP #6291 Exhibit 4 Exhibit E C1TY OF DENTON RFP FOR PURCHASE OF A MUD CLEANER (LINEAR MOTION SHAKER) §WRx Scope of Work and Services 1. SCOPE OF WORK AND SERVICES The scope of work shall be finalized upon the selection of the Firm, The proposal submission shall have accurately described your understanding of the objectives and scope of the requested products and services and provided an outline of your process to implement the requirements of the Scope of Work and Services. It is anticipated that the scope proposal submission will include, at a minimum, the following: A. TECHNICAL RESPONSIBILITIES AND REQUIREMENTS This specification is intended to describe a mechanical Mud Cleaner or units combined to be used on the City Of Denton Wheel Wash to remove debris such as small sticks, stones, and solids It is the intent of the City Of Denton to purchase a new, current Mud Cleaner described herein from the successful respondent at the base cost, with warranty. The unit or (units) shall include installation, including but not limited to all wire, connectors, piping, valves, hoses, clamps and fittings needed in connecting the unit, or (units) for set- up, start -up, testing and training to begin to utilize the unit. Proposal should include all fees, supplies, equipment and labor required to begin to operate the equipment. The City shall provide the following: Forklift for unloading and placement of equipment A meter and breaker box will be provided for the unit Stand for unit to set on. Any additions, deletions or variations from the following specifications must be noted. The following items are to be considered the minimum specification requirements for the Mud Cleaner. The respondent must place a checkmark in the appropriate box to indicate: "YES" the proposed unit meets or exceeds the minimum required specification or "NO" the unit does not meet or exceeds minimum required specification listed, 1 eutj . he kcd `14t " MIfiS'I be explaitjedjKgtachrunent that rovides a de ailed d explanation. M� Cleaner: _Yes No 1.Must have a "G" force of 5.0 -7.5 or "greater" . Yes No 2.Maximum Flow Rate of 500 gpm, or "greater" Vves No 3.Screen "I "Deck _. Yes _No 4.Have "I" Screen per Deck PAGE 12 OF RFP #5291 RFP 5291 Exhibit 4 Exhibit E CITY OF DENTON RFP FOR PURCHASE OF A MUD CLEANER (LINEAR MOTION SHAKER) -f Yes No 5.Screen Surface Area of "36" ft .2 -Yes No 6.Adjustable deck angle +5° to -21 lees _No 7.Desilter Hydro cyclones 6 or More Polyurethane cones YYes No 8.Desilter cone size 4" attached with 2" quick couplings / V Yes No 9 .Final out size 25u or less yyes No 1 O.Desilter flow Rate Capacity of 390gpm @ 25ft head ,/Yes No I I.Desilter manifold Diameter of 6" �/ Yes No 12.Unit should have liquid filled pressure gage, with gage guard and over flow header vent. Electric IYes No 13,Vibrator Motors 2.4 lip. or greater and have a NEMA Premium rating. 7yes No 14.Electrical 440v 3 phase Yes No 15.Motors and panels must be explosion proof Pu mps 4es No 16.One 24hp 1750 RPM shedder pump 3 phase 460volt non clog, solids handling pump for sludge, sewage, trasli,& industrial waste capable of handling 3" solids and pump a minimum 650gpm @ 100' head pressure. Discharge size shall be 4 "NPT- F.Motor casing 304SS,Pump Volute Cast Iron, Lip seals & O -Rings Buna -N, Rotor Shaft 304SS,External hardware 304SS, Motor Insulation Class H Motor Protection Thermal & Amp Overload, Power Cord: Gage; Length A.W.G. 10/4,33', SOOW JYes No 17.0ne 24hp,3Phase,460 Volt, Motor RPM 1750, Severe DUTY, submersible slurry pump with agitator to feed desilter cones @ 900 gpm or more with minimum 70' of head pressure. Strainer opening 1.3 75 ",Discharge size 6" NPT -M, Motor casing Cast Iron, Pump volute shall be made of Ductile iron with interior hardness coating to 1180 DPH, Lip Seals & O -Rings BUNA -N, Impeller- Muti- Vane Hi- Chrome, Rotor shaft 410 SS, External hardware304 SS, Motor insulation class H, Motor Protection Thermal & Amp Overload, Power cord: Gage; Length A.W.G. 8/5; 50', SOOW, Sel ,ens Yes No 18.Unit or units shall conic (units) m with screens. Screen saes will be determined by the City Of Denton upon installation. PAGE 13 OF RFP #5291 RFP 5291 Exhibit 4 Exhibit E CITY OF DENTON RFP FOR PURCHASE OF A MUD CLEANER (LINEAR MOTION SHAKER) V/Yes No 19. Final screens shall have a minimum mesh size of 250 openings per square inch. Zyes No 20. Output of the unit shall be 10 microns or less. Warranty 21.Mud cleaner and all supporting equipment should come with a minimum of a one (1) year warranty. State Warranty term and conditions. Insttallation, Set -up, Start -up and Training r/ Yes. —No 22. Provide Installation and wiring to City provided electrical service �es No 23. Provide all piping ,hoses,clamps,valves fittings, or any other materials and labor needed in the complete installation of unit or (units) . Yes No 24. Provide one day start up testing. Screen sizes to be determined during start- lip. Yes No 25. Provide one day onsite personal training B. GENERAL RESPONSIBILITIES AND REQUIREMENTS 1. 'Warranties The contractor shall provide a warranty that is standard in the industry. Repair or Maintenance of fleet not performed to industry standards shall be accomplished at the contractor's expense, at the option of the City. 2. Safety and Environmental Hazards The City does not warrant or guarantee against the possibility that safety or environmental hazards or potential hazards (including premises and special defects) may exist at the City's facilities. The Contractor shall be responsible for identifying any hazardous conditions and notifying the City of these conditions in writing no later than 30 days after contract award and prior to initiation of service delivery on the property. This will be accomplished by the Contractor conducting an environmental assessment and an occupational health, and safety inspection of the service bay or field service areas by competent, qualified and appropriately licensed practitioners. The costs of these inspections and any subsequent corrective action will be negotiated between the City and the Contractor. All contractors to the City of Denton are required to ensure absolute safety standards are applied and enforced. The City of Denton will not be responsible for individual contractor safety, and the awarded contractor shall not hold the City of Denton responsible. Known hazards shall immediately be reported and all safety PAGE 14 OF RFP #5291 RFP 5291 Exhibit 4 Exhibit E CITY OF DENTON RFP FOR PURCHASE OF A MUD CLEANER (LINEAR MOTION SHAKE R) XmMoom BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS 1. Contractor Name:r�����'r'� o 2. Address (Principal Place of Business): 166�P 30/ �' S� . ?,7318 3. Does your company have an established physical presence in the State of Texas, or the City of Denton? YC�S 4. Tax Payer ID #: 5. Email Address of Primary contact: J�� . {ego �� t r ►1 /o rC. &Yn 6. Website Address: W lc11� . `� �` r 1 •C 7. Telephone: � _?6 S. Fax: l 3� —15-b 9. Other Locations: 10. Organization Class: Partnership Individual Corporation V Association 11. Date Established: (o — A � ' 19'9-9 12. Former Business Name: 13. Date of Dissolution: 14. Subsidiary of. 15. Historically Underutilized BusinessrYs-s—pr No 16. Principals and Officers: Please detail responsibilities with the name of each principal or officer. 17. Key Personnel and Responsibilities: UVVI J a ►ht ► e �;e) Please detail responsibilities with the name of each key personnel. uipr elfl " RFP 5291 PAGE 60 OF RFP #5291 Exhibit 4 Exhlbit E CITY OF DENTON R.FP FOR PURCHASE OF A MUD CLEANER (LINEAR MOTION SHARER) r , , mok Any exceptions taken to this RIP must be listed on the lines below. If there are no exceptions, please sign where indicated at the bottom of the page. Item # Description Signature Company Date No Exceptions taken to this RFP. _. ,S1 Matt..,,. Company .. _ ..._.�..��.�......�_.�...m_Date �.. RFP 5291 PAGE 62 OF RFP #6291 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR LINEAR MOTION SHAKER MUD CLEANER FOR THE CITY OF DENTON LANDFILL WHEEL WASH FACILITY; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5291- AWARDED TO TRI -FLO INTERNATIONAL, INC. IN THE NOT -TO- EXCEED AMOUNT OF $125,051.72). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the purchase of a linear motion shaker mud cleaner 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 NUMBER VENDOR AMOUNT 5291 Tri -Flo International, Inc. $125,051.72 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 5291 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 , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY IC RFP 5291 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Waste Water UTILITIES ACM: Howard Martin, Utilities, 349 -8232 .� SUBJECT 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 Paul -Emile Baudouin and Benjamin Parker Baudouin as Owner (herein so called), and the City of Denton, Texas, as Buyer, regarding the sale and purchase of fee simple to two tracts identified as a 22.41 acre tract, more or less, and a 27.93 acre tract, more or less, both situated in the B.B.B. & C.R.R. Co. Survey, Abstract No. 196, located in the City of Denton, Denton County, Texas, as more particularly described in the Contract of Sale, located generally in the 3700 Block of Country Club Road (the "Property Interests "), for the purchase price of Four Hundred Seventy Five Thousand Dollars and No Cents ($475,000.00), and other consideration, as prescribed in the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND Flow metering data on the main interceptor serving the Hickory Creek Basin has indicated surcharging during heavy rain events, since 2001. Staff has identified through collection system models, in 2005 and 2008, needed improvements to resolve the capacity deficiency. The department has recommended the addition of future facilities to better serve the citizens of Denton. Staff identified the Graveyard Branch Lift Station and Force Main project, previously forecasted for 2009 -2013 and planned into the 5 year CIP for constriction in 2013 as the main improvement required to handle the capacity deficiency. In 2010 a comparative analysis was performed for the Graveyard Branch Lift Station project between the concept of a throughput lift station and the concept of a detention lift station. The result of this analysis showed significant cost savings if the lift station pumped into a detention facility as opposed to a force main. Consequently, the scope of the Graveyard Branch Lift Station project transitioned from a throughput life station into a detention facility project and was renamed the Hickory Creek Detention Facility project. Approval of the ordinance under consideration authorizes staff to proceed to closing the purchase transaction with the property owner. OPTIONS 1. Approve the proposed Ordinance. 2. Not approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATIONS Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Closed session briefing in Executive Session — PUB, November 11, 2013 Closed session briefing in Executive Session — City Council, November 19, 2013 January 27, 2014 PUB Executive Session and Consent Agenda, Vote 6 -0 Approved FISCAL INFORMATION The funding allocated for the Hickory Creels Detention Facility Project is included in Bond Funds outlined within the Exhibit D attachment. EXHIBITS 1. Location Map 2. Site Map 3. CIP Detail Sheet — Graveyard Branch Life Station and Force Main 4. Ordinance (with attachments) Prepared by, LuAnne Oldham, Real Estate Specialist Respectively Submitted, P. S. Arora Assistant Director Wastewater SCRIPTURE rw �NJ Location Map w Q ry m w z z O m J Downtown Denton EAGLE HOBSON HICKORY w J U) Q W I- City of Denton 2014 -2018 CIP Improvements Projects Project Title: Graveyard Branch Lift Station and Force Main Description: New lift station and force main to serve Hickory Creek Basin. Business Unit: 640200 - Wastewater- Collection Project Type: Growth Project Scope: Multiple Year Project Category Code: 005 - COLLECTION SYSTEM UPGRADE G�tiS of DeOfoh dater Uti���� F.Y. Cost Code Cost Type Funding Source Comment Amount 2014 21100 -FINAL DESIGN 1365 -Other Utility Bonds $914,634 2014 40100 - CONSTRUCTION 1360 -Sub Contract Utility Bonds $5,507,117 2014 30200 -RIGHT OF WAY /EASEMENTS 1365 -Other Utility Bonds $628,552 2014 Total: $7,050,303 Project Total: 1 $7,050,303 Comments: 21100 includes engineering design, survey and inspection. Project 640163XXX Graveyard Branch L.S. and F.M. EXHIBIT 3 Friday, May 31, 2013 Page 25 of 71 sAlegal \our documents \ordinances \14 \baudouin ordinance.doc ORDINANCE NO. 2014- 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 PAUL -EMILE BAUDOUIN AND BENJAMIN PARKER BAUDOUIN AS OWNER (HEREIN SO CALLED), AND THE CITY OF DENTON, TEXAS, AS BUYER, REGARDING THE SALE AND PURCHASE OF FEE SIMPLE TO TWO TRACTS IDENTIFIED AS A 22.41 ACRE TRACT, MORE OR LESS, AND A 27.93 ACRE TRACT, MORE OR LESS, BOTH SITUATED IN THE B.B.B. & C.R.R. CO. SURVEY, ABSTRACT NO. 196, LOCATED IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED IN THE CONTRACT OF SALE, LOCATED GENERALLY IN THE 3700 BLOCK OF COUNTRY CLUB ROAD (THE "PROPERTY INTERESTS "), FOR THE PURCHASE PRICE OF FOUR HUNDRED SEVENTY FIVE THOUSAND DOLLARS AND NO CENTS ($475,000.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE CONTRACT OF SALE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized (a) to execute for and on behalf of the City (i) the Contract of Sale, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $475,000.00, plus certain costs, as prescribed in the Contract of Sale; and (ii) any other documents necessary for closing the transaction contemplated by the Contract of Sale; and (b) to make expenditures in accordance with the terms of the Contract of Sale. SECTION 2. 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 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By. STATE OF TEXAS § COUNTY OF DENTON § EXHIBIT "A" - to Ordinance CONTRACT OF SALE NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. This Contract of Sale (the "Contract') is made this day of 2014, effective as of the date of execution hereof by Buyer, as defined herein (the "Effective Date "), by and between Paul -Emile Baudouin and Benjamin Parker Baudouin (referred to collectively herein as "Seller") and the City of Denton, Texas, a Home Rule Municipal Corporation of Denton County, Texas (referred to herein as `Buyer "). RECITALS WHEREAS, Seller owns that certain tract of land being more particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, being located in Denton County, Texas (the "Land "); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances to the Land (collectively, the "Property "). ARTICLE I SALE OF PROPERTY 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 agrees to purchase from Seller, the Property. Seller, subject to the limitation of such reservation made herein, shall reserve, for themselves and itself, their heirs, devisees, successors and assigns, all oil, gas and other minerals in, on and under and that may be produced from the Property. Seller, their heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. It is understood that the Property, or a portion thereof, may be subject to an existing oil and gas lease and that such oil and gas lease, to the extent it is valid and subsisting, shall not be subject to such surface use prohibitions, to the extent provided by law. However, (i) such oil and gas lease shall be considered an Exception, as defined below; and (ii) nothing contained herein shall be deemed as recognizing the validity or subsistence of such lease and /or operate as a revivor thereof. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of Four Hundred Seventy Five Thousand and No /100 Dollars ($475,000.00) (the "Purchase Price "). 2.02 Earnest Money. Buyer shall deposit the sum of Five Thousand and No /100 Dollars ($5,000.00), as Earnest Money (herein so called) with Capital Title of Texas LLC- Denton 620 West Hickory Street, Denton, TX 76201 (the "Title Company "), as escrow agent, within fourteen (14) calendar days after the Effective Date hereof. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions 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 interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. 2.03 Independent Contract Consideration. Within fourteen (14) calendar days after the Effective Date, Buyer shall deliver to the Title Company, payable to and for the benefit of Seller, a check in the amount of One Hundred and No /100 Dollars ($100.00) (the "Independent Contract Consideration "), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in addition to, and independent of any other consideration or payment provided in this Contract, is non - refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment ") for the Property, issued by Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights -of -way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception "). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions (the "Exception Documents "), including those described in the Title Commitment as exceptions to which the conveyance will be subject and /or which are required to be released or cured at or prior to Closing. 3.02 Survey. Within sixty (60) calendar days after the Effective Date, Seller shall cause to be prepared at Buyer's expense, a current on the ground survey of the Property (the "Survey "). The contents of the Survey shall be prepared by a surveyor selected by Buyer and shall include the matters prescribed by Buyer, which may include but not be limited to, a depiction of the location of all roads, streets, easements and rights of way, both on and adjoining the Property, water courses, 100 year flood plain, fences and improvements and strictures of any kind and other matters provided in items 1 -4, 6a, 7a, 8, 11,13,16, 18, and 19 of Table A of the ALTA Minimum Standard Detail Requirements. The Survey shall describe the size of the Property, in acres, and contain a metes and bounds description thereof. Seller shall furnish or cause to be furnished any affidavits, certificates, assurances, and /or resolutions as required by the Title Company in order to amend the survey exception as required by Section 3.05, below. The description of the Property as set forth in the Survey, at the Buyer's election, shall be used to describe the Property in the deed to convey the Property to Buyer and shall be the description set forth in the Title Policy. Notwithstanding the Survey of the Property, the Purchase Price for the Property, as prescribed by Section 2.01, above, shall not be adjusted in the event the Survey shall determine the Property to be either larger or smaller than that depicted in Exhibit "A ", attached hereto. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period ") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception Documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ( "Objections "), if any. All items set forth in the Schedule C of the Title Commitment, and all other items set forth in the Title Commitment which are required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or Exceptions that have been voluntarily placed on or against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day period, as may be extended by Buyer, in its sole discretion, then Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to Closing, in which event those Objections shall become Permitted Exceptions (herein so called), or (b) terminating this Contract by notice in writing prior to Closing and receiving back the Earnest Money, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.05 Title Policy. At Closing, Seller, at Seller's sole cost and expense, shall cause a standard Texas Owner's Policy of Title Insurance ( "Title Policy ") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended or deleted as follows: (a) survey exception must be amended if required by Buyer to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (b) no exception will be permitted for "visible and apparent easements" or words to that effect (although reference may be made to any specific easement or use shown on the Survey, if a Permitted Exception); (c) no exception will be permitted for "rights of parties in possession ", unless otherwise agreed by Buyer; (d) no liens will be shown on Schedule B. Notwithstanding the enumeration of the stated exceptions, amendments and /or deletions, Buyer may object to any Exception it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending ninety (90) calendar days thereafter (the "Absolute Review Period "), based on such appraisals, tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will provide to Seller, if requested by Seller, copies of (i) any and all non - confidential and non - privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance 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 made to another date, that: (a) The descriptive information concerning the Property set forth in this Contract is complete, accurate, true and correct. (b) There are no adverse or other parties in possession of the Property or any part thereof, and no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Article V, Section 5.02(x). (c) The Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions. (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (f) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject to no such liens. (g) Seller has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract, except a 6% real estate commission to Keller Williams Realty, Kathy Connell, Listing Agent. (h) All Leases, as defined in Article V, Section 5.02(x), shall have expired or otherwise terminated and any and all tenants or parties occupying the Property pursuant to the Leases shall have permanently abandoned and vacated the Property, including without limitation, all personal property of any such tenants or parties, on or before the date of Closing. (i) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) 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 lease agreements and /or occupancy agreements and /or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases "). (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing, or claims related thereto, concerning 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 agreements of Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, grant or permit to be attached or perfected, any lien, encumbrance, or charge thereon. (c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property under any written or oral contracts arising or entered into prior to Closing. (d) On or before Closing, Seller shall remove (i) any waste material or debris that are located upon, or may accumulate or otherwise be placed on the Property (the "Waste Material "), from the Property and dispose of same in accordance with all applicable statutes, regulations, riles, orders and ordinances; and (ii) all personal property from the Property. It is expressly stipulated that (i) the Waste Material shall be deemed at all times the property of Seller; and (ii) Buyer may retain, destroy, or dispose of any property, of any kind or type, left or remaining on the Property at Closing (the "Abandoned Property "), without liability of any kind to Buyer and without payment of consideration of any kind to Seller. In the event Buyer shall elect to store said Abandoned Property, Buyer may store such Abandoned Property in the name, and at the expense, of Buyer. (e) On or before Closing, Seller shall remove the house stricture, inclusive of the foundation, currently located upon the Property, from the Property and dispose of same in accordance with all applicable statutes, regulations, riles, orders, and ordinances. (f) Seller shall provide necessary authorization required for any City initiated permitting, planning or zoning applications during the contract period, involving the subject property tracts. 5.02.A. Warranty of Buyer; Property Condition. Buyer represents and warrants to Seller that it has made, or will make prior to Closing, an independent inspection and evaluation of the Property and acknowledges that Seller has made no statements or representations concerning the present or future value of the Property, or the condition, including the environmental condition, of the Property. Except as otherwise specifically represented and warranted by Seller in this Contract, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED, STATUTORY, OR IMPLIED, AS TO THE VALUE, QUALITY, QUANTITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AND /OR MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, AND /OR MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY OF THE PROPERTY. Buyer further acknowledges that it has relied solely upon its independent evaluation and examination of the Property, and public records relating to the Property and the independent evaluations and studies based thereon. Seller makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished to Buyer, if any, whether furnished by Seller or any third party. Seller assumes no liability for the accuracy, completeness or usefulness of any material furnished by Seller, if any, and /or any other person or party. Reliance on any material so furnished is expressly disclaimed by Buyer, and shall not give rise to any cause, claim or action against Seller. 5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller and Buyer contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Special Warranty Deed, as described in Article VII, Section 7.02(x). 5.04 Exception to Closure. Notwithstanding anything to the contrary in this Contract, Buyer may terminate this Contract by written notice to Seller in the event the City fails to close on the property identified in the City's Contract of Sale on the "Altemus" property, immediately adjacent to the property described herein in Exhibit "A," insomuch as the Buyer's public purpose is only met with the acquisition of both tracts. In such event, the Buyer shall be entitled to a reimbursement of its earnest money. ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) Seller cures or Buyer waives in writing, within the time periods specified in Article III, all of Buyer's objections made in accordance with Article III. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except where 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, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written request from Buyer, promptly issue the instructions necessary to instruct 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 further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established with the Title Company, as escrowee. The Closing Date (herein sometimes called), shall be one hundred eighty (180) calendar days after the Effective Date, unless otherwise mutually agreed upon by Buyer and Seller. 7.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the Title Company, at the expense of the party designated herein, the following items: (i) The Title Policy, in the form specified in Article III, Section 3.05; (ii) The Special Warranty Deed, substantially in the form as attached hereto as Exhibit "B ", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; (iii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. (b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the following items: (i) The sum required by Article II, Section 2.01, less the Earnest Money in the form of a check or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between Seller and Buyer with respect to the Property: (a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at Closing shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. As soon as the amount of taxes levied against the Property for the calendar year in which Closing shall occur is known, Seller and Buyer shall readjust in cash the amount of taxes to be paid by each party with the result that Seller shall pay for those taxes attributable to the period of time prior to the Closing Date. If the conveyance contemplated by this Agreement or the use of the Property by the Buyer after the Closing results in the assessment of additional taxes, penalties or interest (the "Rollback Assessments ") for periods prior to Closing, Seller shall not be responsible for the Rollback Assessments. If Rollback Assessments are or become due as a result of any activity, use, non -use or any other matter occurring prior to Closing, or from the denial of a special use valuation of the Property, Seller shall be responsible for the Rollback Assessments. Without limiting the general nature of Section 5.03 herein, the obligations contained herein shall survive Closing and shall not be merged with the Special Warranty Deed. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 7.05 Costs of Closing. 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 identified herein as being the responsibility of Seller. Buyer is responsible for paying all other fees, costs and expenses related to Closing. ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or (iii) Seller fails to deliver at Closing, the items specified in Article VII, Section 7.02(x) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's remedies for the default, may, at Buyer's sole option, do any of the following: (i) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and Seller shall, promptly on written request from Buyer, execute and deliver any documents necessary to cause the Title Company to return to Buyer the Earnest Money; (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment, whereupon Buyer shall waive title objections, if any, and accept such title without reduction in Purchase Price on account of title defects and shall 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, contract or otherwise. 8.02 Buyer's Default and Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedy for the default, may, at Seller's sole option, do either one of the following: (i) Terminate this Contract by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company to return to Seller the Earnest Money; or (ii) Enforce specific performance of this Contract against Buyer. ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, delivered, unless expressly provided otherwise in this Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be deemed to be delivered and received, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Paul -Emile Baudouin and Benjamin Parker Baudouin Copies to: For Seller: Telecopy: IC o • City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349 -8951 For Buyer: Anita Burgess, City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 382 -7923 9.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, constriction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN DENTON COUNTY, TEXAS. 9.03 Entirety 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 Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective devisees, heirs, successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Denton County, Texas, imparting notice of this Contract to the public. 9.05 Risk of Loss. If any damage to the Property shall occur prior to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or party other than Buyer that might result in the taking of any portion of the Property, Buyer may, at Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to Buyer; or (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive (i) in the case of damage, all insurance proceeds, if any; and (ii) in the case of eminent domain, all proceeds paid for the Property related to the eminent domain proceedings. Buyer shall have ten (10) calendar days after receipt of written notification from Seller on the final settlement of all condemnation proceedings or insurance claims related to damage to 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, in form and substance satisfactory to Buyer, all interests of Seller in and to any and all insurance proceeds or condemnation awards which may be payable to Seller on account of such event. In the event Buyer elects to close upon this Contract after final settlement, as described above, Closing shall be held five (5) business days after such final settlement. 9.06 Further Assurances. In addition to the acts and deeds recited in this Contract and contemplated to be performed, executed and /or delivered by Seller and Buyer, Seller and Buyer agree to perform, execute and /or deliver, or cause to be performed, executed and /or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article IX, Section 9.06 shall survive Closing. 9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 9.09 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract, including without limitation, adjustment of the Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of Denton, Texas, to P.S. Arora, Wastewater Engineer of Buyer, or his designee. 9.10 Contract Execution. This Contract of Sale may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. 9.11 Business Days. If the Closing Date or the day of performance required or permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then the Closing Date or the date of such performance, as the case may be, shall be the next following regular business day. Executed by Seller on the day of 11�Tllllv 2014. BUYER: By: Executed by Buyer on the - day of 2014. ATTEST: JENNIFER WALTERS, CITY SECRETARY IM M 14 RECEIPT OF AGREEMENT BY TITLE COMPANY 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 Contract to perform its duties pursuant to the provisions of this Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Capital Title of Texas LLC Denton, Texas 76201 IM Printed Name: Title: Contract receipt date: , 2014 EXHIBIT "A" to Contract of Sale Legal Description METES & BOUNDS DESCRIPTION TRACT I A 22.41 ACRE TRACT OF LAND, SITUATED IN THE B.B.B. & C. R.R. CO. SURVEY, ABSTRACT NUMBER 196, DENTON COUNTY, TEXAS, AND BEING A PORTION OF THAT TRACT CONVEYED BY DEED FROM B.F. DANIEL AND DORIS RUTH TO R.N. MORRIS AND RECORDED IN VOLUME 376, PAGE 18, DEED RECORDS OF DENTON COUNTY, TEXAS, BEING THE SAME TRACT OF LAND AS CONVEYED FROM SIDNEY SIMMS TO PAUL - EMILE BAUDOUIN AND BENJAMIN PARKER BAUDOUIN IN DOCUMENT NUMBER 2011 - 35969, OFFICIAL PUBLIC RECORDS OF DENTON COUNTY, TEXAS, SAID TRACT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING at a found 1/2" iron rod in the westerly R.O.W. line of Farm to Market Road No. 1830 (A/K/A, F.M. 1830, Country Club Road (an 80' Public R.O.W.) for the southeast confer of the herein described tract, the northeast corner of a 12.48 acre tract this day surveyed (called a 12.46 acre tract in conveyance to Connie M. Altemus as recorded in Vol. 901, Pg. 774, Deed Records of Denton County, Texas); THENCE along and with the northerly boundary line of said Altemus Tract, North 88 °21'58" West, a distance of 920.52 feet (called North 88 °26'50" West, a distance of 918.60 feet) to a found 1/2" iron rod for the southwest confer of the herein described tract, the northwest confer of said Altemus Tract, a point in the easterly R.O.W. line of a Variable Width Railroad R.O.W. conveyed to G.C. & S.F. Rail Road, as recorded in Vol. 13, Pg. 388, Civil Minutes of Denton County, Texas; THENCE along and with said R.O.W., generally along a fence, North 33 °56'34" West, a distance of 988.17 feet (called North 34 °02'40" West, a distance of 991.00 feet) to a set 1/2" iron rod for the northwest confer of the herein described tract, the most southerly southwest confer of Lot 10, Block B, Bent Creek Estates Phase I, a subdivision of Denton County, Texas, as recorded in Vol. 0, Pg. 85, Plat Records of Denton County, Texas; THENCE along and with the southerly boundary line of said Bent Creek Estates, generally along a fence, South 88 °56'20" East, at a distance of 972.71 feet passing a found 1/2" iron rod marking the common confer of Lot 13 and Lot 14, Block A, said Bent Creek Estates, a total distance of 1481.14 feet (called South 88 °56'20" East, a distance of 1479.60 feet) to a set 1/2" iron rod in the westerly R.O.W. line of said F.M. 1830 for the northeast confer of the herein described tract, the southeast confer of said Bent Creek Estates Subdivision; THENCE along and with said R.O.W., generally along a fence, South 00 °37'41" West, distance of 818.65 feet (called South 00 °28'50" West, a distance of 819.00 feet) to the POINT OF BEGINNING and containing 22.41 acres, more or less. METES & BOUNDS DESCRIPTION TRACT II A 2793 ACRE (CALLED 2792 ACRE) TRACT OF LAND, SITUATED IN THE B.B.B. & C. R.R. CO. SURVEY, ABSTRACT NUMBER 196, DENTON COUNTY, TEXAS, AND BEING THE SAME TRACT OF LAND AS CONVEYED FROM SIDNEY SIMMS TO PAUL -EMILE BAUDOUIN AND BENJAMIN PARKER BAUDOUIN IN DOCUMENT NUMBER 2011 - 35970, BEING A PORTION OF THAT CERTAIN TRACT OR PARCEL OF LAND CONVEYED FROM B.F. DANIEL AND DORIS RUTH TO R.N. MORRIS RECORDED IN VOLUME 376, PAGE 18, DEED RECORDS OF DENTON COUNTY, TEXAS, SAID TRACT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING at a set 1/2" iron rod in the westerly R.O.W. line of a Variable Width Railroad R.O.W. conveyed to G.C. & S.F. Rail Road in Vol. 13, Pg. 388, Civil Minutes of Denton County, Texas for the northeast confer of the herein described tract, the southeast confer of a called 21.472 acre tract conveyed to the City of Denton In Doc. No. 97- 055783, Official Public Records of Denton County, Texas, said rod being located North 88 °56'20" West, a distance of 1159.41 feet from a found 1/2" iron rod marking the common south confer of Lot 13 and Lot 14, Block A, Bent Creek Estates Phase I, a subdivision of Denton County, Texas recorded in Vol. 0, Pg. 85, Plat Records of Denton County, Texas; THENCE along and with said R.O.W., generally along a fence, the following courses and distances: South 33 °55'28" East, a distance of 341.00 feet (called South 34 °00'20" East, a distance of 341.00 feet) to a set 112" iron rod for an angle point; South 41 °02'58" East, a distance of 201.60 feet (called South 41 °07'50" East, a distance of 201.60 feet) to a set 1/2" iron rod for an angle point; South 33 °55'28" East, a distance of 465.90 feet (called South 34 °00'20" East, a distance of 465.90 feet) to a set 1/2" iron rod for the southeast confer of the herein described tract, the northeast confer of a 38.01 acre tract this day surveyed (called 37.87 acre tract, A/K/A Tract 40) as conveyed to Connie M. Altemus in Vol. 901, Pg. 777, Deed Records of Denton County, Texas, said rod being located North 88 °25'06" West, a distance of 155.86 feet from a found 1/2" iron rod in the easterly R.O.W. line of said Railroad R.O.W. marking the southwest confer of a 22.41 acre tract this day surveyed; THENCE along and with the northerly boundary line of said Altemus Tract, North 88 °21'58" West, a distance of 1533.89 feet (called North 88 °26'50" West, a distance of 1533.90 feet) to a point of reference in a creek for the southwest confer of the herein described tract, said rod being located in the common boundary line of the said B.B.B. & C.R.R. Co. Survey, Abstract No. 196 and the W. Roark Survey, Abstract No. 1087, a point in the easterly boundary line of the Burch Family Farm, Ltd. First Tract, a called 222.275 acre tract as recorded in Doc. No. 2007 - 110043, Official Public Records of Denton County, Texas; THENCE along and with the easterly boundary line of said Burch Family Farm Tract, the said common Survey boundary, North 00 °34'30" East, a distance of 67.50 feet to a point of reference in a creek for an angle point; THENCE continuing along and with the easterly boundary line of said Burch Family Farm Tract, leaving the said common Survey boundary, North 50 °54'00" West, a distance of 282.20 feet to a point of reference in a creek for an angle point; THENCE continuing along and with the easterly boundary line of said Burch Family Farm Tract, North 26'12'20" West, a distance of 171.70 feet to a point of reference in a creek for an angle point; THENCE continuing along and with the easterly boundary line of said Burch Family Farm Tract, North 30 °10'40" West, a distance of 243.00 feet to a point of reference in a creek for an angle point; THENCE continuing along and with the easterly boundary line of said Burch Family Farm Tract, North 17 °54'00" West, a distance of 206.41 feet (called North 17 °54'00" West, a distance of 206.00 feet) to a point of reference for the northwest confer of the herein described tract, the southwest confer of said City of Denton Tract; THENCE along and with the southerly boundary line of said City of Denton Tract, generally along a fence, South 88'52'19" East, at a distance of 52.92 feet passing a found 1/2" iron rod in the high bank of said creek, a total distance of 1429.43 feet (called South 88 °56'20" East, a distance of 1430.56 feet) to the POINT OF BEGINNING and containing 27.93 acres, more or less. EXHIBIT "B" TO CONTRACT OF SALE NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS That Paul -Emile Baudouin and Benjamin Parker Baudouin (herein collectively called "Grantor "), for and in consideration of the sum of TEN AND NO /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 "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Exceptions to conveyance and warranty: [Insert Permitted Exceptions, if any] Grantor hereby assigns to Grantee, without recourse or representation, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof when the claim is by, through, or under Grantor but not otherwise. EXECUTED the day of , 2014 Paul -Emile Baudouin Benjamin Parker Baudouin ACKNOWLEDGMENT THE STATE OF COUNTY OF This instrument was acknowledged before me on 2014 by Paul -Emile Baudouin. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF COUNTY OF This instrument was acknowledged before me on , 2014 by Benjamin Parker Baudouin. Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, TX 76209 Notary Public, State of Texas My commission expires: Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 Exhibit "A" To Special Warranty Deed Legal Description METES & BOUNDS DESCRIPTION TRACT I A 22.41 ACRE TRACT OF LAND, SITUATED IN THE B.B.B. & C. R.R. CO. SURVEY, ABSTRACT NUMBER 196, DENTON COUNTY, TEXAS, AND BEING A PORTION OF THAT TRACT CONVEYED BY DEED FROM B.F. DANIEL AND DORIS RUTH TO R.N. MORRIS AND RECORDED IN VOLUME 376, PAGE 18, DEED RECORDS OF DENTON COUNTY, TEXAS, BEING THE SAME TRACT OF LAND AS CONVEYED FROM SIDNEY SIMMS TO PAUL -EMILE BAUDOUIN AND BENJAMIN PARKER BAUDOUIN IN DOCUMENT NUMBER 2011 - 35969, OFFICIAL PUBLIC RECORDS OF DENTON COUNTY, TEXAS, SAID TRACT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING at a found 1/2" iron rod in the westerly R.O.W. line of Farm to Market Road No. 1830 (A/K/A, F.M. 1830, Country Club Road (an 80' Public R.O.W.) for the southeast confer of the herein described tract, the northeast corner of a 12.48 acre tract this day surveyed (called a 12.46 acre tract in conveyance to Connie M. Altemus as recorded in Vol. 901, Pg. 774, Deed Records of Denton County, Texas); THENCE along and with the northerly boundary line of said Altemus Tract, North 88 °21'58" West, a distance of 920.52 feet (called North 88 °26'50" West, a distance of 918.60 feet) to a found 1/2" iron rod for the southwest confer of the herein described tract, the northwest confer of said Altemus Tract, a point in the easterly R.O.W. line of a Variable Width Railroad R.O.W. conveyed to G.C. & S.F. Rail Road, as recorded in Vol. 13, Pg. 388, Civil Minutes of Denton County, Texas; THENCE along and with said R.O.W., generally along a fence, North 33 °56'34" West, a distance of 988.17 feet (called North 34 °02'40" West, a distance of 991.00 feet) to a set 1/2" iron rod for the northwest confer of the herein described tract, the most southerly southwest confer of Lot 10, Block B, Bent Creek Estates Phase I, a subdivision of Denton County, Texas, as recorded in Vol. 0, Pg. 85, Plat Records of Denton County, Texas; THENCE along and with the southerly boundary line of said Bent Creek Estates, generally along a fence, South 88 °56'20" East, at a distance of 972.71 feet passing a found 1/2" iron rod marking the common confer of Lot 13 and Lot 14, Block A, said Bent Creek Estates, a total distance of 1481.14 feet (called South 88 °56'20" East, a distance of 1479.60 feet) to a set 1/2" iron rod in the westerly R.O.W. line of said F.M. 1830 for the northeast confer of the herein described tract, the southeast confer of said Bent Creek Estates Subdivision; THENCE along and with said R.O.W., generally along a fence, South 00 °37'41" West, distance of 818.65 feet (called South 00 °28'50" West, a distance of 819.00 feet) to the POINT OF BEGINNING and containing 22.41 acres, more or less. s: ,water engineering engr real estateAprojects \roi shared \projects \hickoiy creek detention facility - fall 2013 \ais, cc \cao- baudouin- contract of sale.doc METES & BOUNDS DESCRIPTION TRACT II A 2793 ACRE (CALLED 2792 ACRE) TRACT OF LAND, SITUATED IN THE B.B.B. & C. R.R. CO. SURVEY, ABSTRACT NUMBER 196, DENTON COUNTY, TEXAS, AND BEING THE SAME TRACT OF LAND AS CONVEYED FROM SIDNEY SIMMS TO PAUL -EMILE BAUDOUIN AND BENJAMIN PARKER BAUDOUIN IN DOCUMENT NUMBER 2011 - 35970, BEING A PORTION OF THAT CERTAIN TRACT OR PARCEL OF LAND CONVEYED FROM B.F. DANIEL AND DORIS RUTH TO R.N. MORRIS RECORDED IN VOLUME 376, PAGE 18, DEED RECORDS OF DENTON COUNTY, TEXAS, SAID TRACT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING at a set 1/2" iron rod in the westerly R.O.W. line of a Variable Width Railroad R.O.W. conveyed to G.C. & S.F. Rail Road in Vol. 13, Pg. 388, Civil Minutes of Denton County, Texas for the northeast confer of the herein described tract, the southeast confer of a called 21.472 acre tract conveyed to the City of Denton In Doc. No. 97- 055783, Official Public Records of Denton County, Texas, said rod being located North 88 °56'20" West, a distance of 1159.41 feet from a found 1/2" iron rod marking the common south confer of Lot 13 and Lot 14, Block A, Bent Creek Estates Phase I, a subdivision of Denton County, Texas recorded in Vol. 0, Pg. 85, Plat Records of Denton County, Texas; THENCE along and with said R.O.W., generally along a fence, the following courses and distances: South 33 °55'28" East, a distance of 341.00 feet (called South 34 °00'20" East, a distance of 341.00 feet) to a set 112" iron rod for an angle point; South 41 °02'58" East, a distance of 201.60 feet (called South 41 °07'50" East, a distance of 201.60 feet) to a set 1/2" iron rod for an angle point; South 33 °55'28" East, a distance of 465.90 feet (called South 34 °00'20" East, a distance of 465.90 feet) to a set 1/2" iron rod for the southeast confer of the herein described tract, the northeast confer of a 38.01 acre tract this day surveyed (called 37.87 acre tract, A/K/A Tract 40) as conveyed to Connie M. Altemus in Vol. 901, Pg. 777, Deed Records of Denton County, Texas, said rod being located North 88 °25'06" West, a distance of 155.86 feet from a found 1/2" iron rod in the easterly R.O.W. line of said Railroad R.O.W. marking the southwest confer of a 22.41 acre tract this day surveyed; THENCE along and with the northerly boundary line of said Altemus Tract, North 88 °21'58" West, a distance of 1533.89 feet (called North 88 °26'50" West, a distance of 1533.90 feet) to a point of reference in a creek for the southwest confer of the herein described tract, said rod being located in the common boundary line of the said B.B.B. & C.R.R. Co. Survey, Abstract No. 196 and the W. Roark Survey, Abstract No. 1087, a point in the easterly boundary line of the Burch Family Farm, Ltd. First Tract, a called 222.275 acre tract as recorded in Doc. No. 2007 - 110043, Official Public Records of Denton County, Texas; THENCE along and with the easterly boundary line of said Burch Family Farm Tract, the said common Survey boundary, North 00 °34'30" East, a distance of 67.50 feet to a point of reference in a creek for an angle point; THENCE continuing along and with the easterly boundary line of said Burch Family Farm Tract, leaving the said common Survey boundary, North 50 °54'00" West, a distance of 282.20 feet to a point of reference in a creek for an angle point; THENCE continuing along and with the easterly boundary line of said Burch Family Farm Tract, North 26'12'20" West, a distance of 171.70 feet to a point of reference in a creek for an angle point; THENCE continuing along and with the easterly boundary line of said Burch Family Farm Tract, North 30 °10'40" West, a distance of 243.00 feet to a point of reference in a creek for an angle point; THENCE continuing along and with the easterly boundary line of said Burch Family Farm Tract, North 17 °54'00" West, a distance of 206.41 feet (called North 17 °54'00" West, a distance of 206.00 feet) to a point of reference for the northwest confer of the herein described tract, the southwest confer of said City of Denton Tract; THENCE along and with the southerly boundary line of said City of Denton Tract, generally along a fence, South 88'52'19" East, at a distance of 52.92 feet passing a found 1/2" iron rod in the high bank of said creek, a total distance of 1429.43 feet (called South 88 °56'20" East, a distance of 1430.56 feet) to the POINT OF BEGINNING and containing 27.93 acres, more or less. 26 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Waste Water UTILITIES ACM: Howard Martin, Utilities, 349 -8232 *,--- SUBJECT 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 Carla Gates Hopper, individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased, and Barbara Gates Laughlin individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased as Owner (herein so called), and the City of Denton, Texas, as Buyer, regarding the sale and purchase of fee simple to two tracts identified as a 12.48 acre tract, more or less, and a 38.01 acre tract, more or less, both situated in the B.B.B. & C.R.R. Co. Survey, Abstract No. 196, located in the City of Denton, Denton County, Texas, as more particularly described in the Contract of Sale, located generally in the 3800 Block of Country Club Road (the "Property Interests "), for the purchase price of Three Hundred Thousand Dollars and No Cents ($300,000.00), and other consideration, as prescribed in the Contract of Sale; authorizing the expenditure of funds therefore; and providing an effective date. BACKGROUND Flow metering data on the main interceptor serving the Hickory Creek Basin has indicated surcharging during heavy rain events, since 2001. Staff has identified through collection system models, in 2005 and 2008, needed improvements to resolve the capacity deficiency. The department has recommended the addition of future facilities to better serve the citizens of Denton. Staff identified the Graveyard Branch Lift Station and Force Main project, previously forecasted for 2009 -2013 and planned into the 5 year CIP for constriction in 2013 as the main improvement required to handle the capacity deficiency. In 2010 a comparative analysis was performed for the Graveyard Branch Lift Station project between the concept of a throughput lift station and the concept of a detention lift station. The result of this analysis showed significant cost savings if the lift station pumped into a detention facility as opposed to a force main. Consequently, the scope of the Graveyard Branch Lift Station project transitioned from a throughput life station into a detention facility project and was renamed the Hickory Creek Detention Facility project. Approval of the ordinance under consideration authorizes staff to proceed to closing the purchase transaction with the property owner. OPTIONS 1. Approve the proposed Ordinance. 2. Not approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATIONS Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Closed session briefing in Executive Session — PUB, November 11, 2013 Closed session briefing in Executive Session — City Council, November 19, 2013 PUB Executive and Consent Agenda, January 27, 2014, Vote 6 -0, Approved FISCAL INFORMATION The funding allocated for the Hickory Creels Detention Facility Project is included in Bond Funds outlined within the Exhibit D attachment. EXHIBITS 1. Location Map 2. Site Map 3. CIP Detail Sheet — Graveyard Branch Life Station and Force Main 4. Ordinance (with attachments) Prepared by, LuAnne Oldham, Real Estate Specialist Respectively Submitted, P. S. Arora Assistant Director Wastewater SCRIPTURE rw �NJ Location Map w Q ry m w z z O m J Downtown Denton EAGLE HOBSON HICKORY w J U) Q W I- City of Denton 2014 -2018 CIP Improvements Projects Project Title: Graveyard Branch Lift Station and Force Main Description: New lift station and force main to serve Hickory Creek Basin. Business Unit: 640200 - Wastewater- Collection Project Type: Growth Project Scope: Multiple Year Project Category Code: 005 - COLLECTION SYSTEM UPGRADE G�tiS of DeOfoh dater Uti���� F.Y. Cost Code Cost Type Funding Source Comment Amount 2014 21100 -FINAL DESIGN 1365 -Other Utility Bonds $914,634 2014 40100 - CONSTRUCTION 1360 -Sub Contract Utility Bonds $5,507,117 2014 30200 -RIGHT OF WAY /EASEMENTS 1365 -Other Utility Bonds $628,552 2014 Total: $7,050,303 Project Total: 1 $7,050,303 Comments: 21100 includes engineering design, survey and inspection. Project 640163XXX Graveyard Branch L.S. and F.M. EXHIBIT 3 Friday, May 31, 2013 Page 25 of 71 sAlegal \our documents \ordinances \14 \altenuis ordinance.doc ORDINANCE NO. 2014- 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 CARLA GATES HOPPER, INDIVIDUALLY AND AS INDEPENDENT CO- EXECUTRIX OF THE ESTATE OF CONNIE MORRIS ALTEMUS, DECEASED, AND BARBARA GATES LAUGHLIN INDIVIDUALLY AND AS INDEPENDENT CO- EXECUTRIX OF THE ESTATE OF CONNIE MORRIS ALTEMUS, DECEASED AS OWNER (HEREIN SO CALLED), AND THE CITY OF DENTON, TEXAS, AS BUYER, REGARDING THE SALE AND PURCHASE OF FEE SIMPLE TO TWO TRACTS IDENTIFIED AS A 12.48 ACRE TRACT, MORE OR LESS, AND A 38.01 ACRE TRACT, MORE OR LESS, BOTH SITUATED IN THE B.B.B. & C.R.R. CO. SURVEY, ABSTRACT NO. 196, LOCATED IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED IN THE CONTRACT OF SALE, LOCATED GENERALLY IN THE 3800 BLOCK OF COUNTRY CLUB ROAD (THE "PROPERTY INTERESTS "), FOR THE PURCHASE PRICE OF THREE HUNDRED THOUSAND DOLLARS AND NO CENTS ($300,000.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE CONTRACT OF SALE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized (a) to execute for and on behalf of the City (i) the Contract of Sale, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $300,000.00, plus certain costs, as prescribed in the Contract of Sale; and (ii) any other documents necessary for closing the transaction contemplated by the Contract of Sale; and (b) to make expenditures in accordance with the terms of the Contract of Sale. SECTION 2. 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 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY f t STATE OF TEXAS § COUNTY OF DENTON § EXHIBIT "A" - to Ordinance CONTRACT OF SALE NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. This Contract of Sale (the "Contract') is made this day of 2014, effective as of the date of execution hereof by Buyer, as defined herein (the "Effective Date "), by and between Carla Gates Hopper, individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased, and Barbara Gates Laughlin individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased (referred to collectively herein as "Seller") and the City of Denton, Texas, a Home Rule Municipal Corporation of Denton County, Texas (referred to herein as `Buyer"). RECITALS WHEREAS, Seller owns that certain tract of land being more particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, being located in Denton County, Texas (the "Land "); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances to the Land (collectively, the "Property "). ARTICLE I SALE OF PROPERTY 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 agrees to purchase from Seller, the Property. Seller, subject to the limitation of such reservation made herein, shall reserve, for themselves and itself, their heirs, devisees, successors and assigns, all oil, gas and other minerals in, on and under and that may be produced from the Property. Seller, their heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any 1 way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. It is understood that the Property, or a portion thereof, may be subject to an existing oil and gas lease and that such oil and gas lease, to the extent it is valid and subsisting, shall not be subject to such surface use prohibitions, to the extent provided by law. However, (i) such oil and gas lease shall be considered an Exception, as defined below; and (ii) nothing contained herein shall be deemed as recognizing the validity or subsistence of such lease and /or operate as a revivor thereof. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of Three Hundred Thousand and No /100 Dollars ($300,000.00) (the "Purchase Price "). 2.02 Earnest Money. Buyer shall deposit the sum of Five Thousand and No /100 Dollars ($5,000.00), as Earnest Money (herein so called) with Capital Title of Texas LLC- Denton 620 West Hickory Street, Denton, TX 76201 (the "Title Company "), as escrow agent, within fourteen (14) calendar days after the Effective Date hereof. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions 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 interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. 2.03 Independent Contract Consideration. Within fourteen (14) calendar days after the 2 Effective Date, Buyer shall deliver to the Title Company, payable to and for the benefit of Seller, a check in the amount of One Hundred and No /100 Dollars ($100.00) (the "Independent Contract Consideration "), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in addition to, and independent of any other consideration or payment provided in this Contract, is non - refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment ") for the Property, issued by Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights -of -way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception "). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions (the "Exception Documents "), including those described in the Title Commitment as exceptions to which the conveyance will be subject and /or which are required to be released or cured at or prior to Closing. 3.02 Survey. Within sixty (60) calendar days after the Effective Date, Seller shall cause to be prepared at Buyer's expense, a current on the ground survey of the Property (the "Survey "). The contents of the Survey shall be prepared by a surveyor selected by Buyer and shall include the matters prescribed by Buyer, which may include but not be limited to, a depiction of the location of all roads, streets, easements and rights of way, both on and adjoining the Property, water courses, 100 year flood plain, fences and improvements and strictures of any kind and other matters provided in items 1 -4, 6a, 7a, 8, 11,13,16, 18, and 19 of Table A of the ALTA Minimum Standard Detail Requirements. The Survey shall describe the size of the Property, in acres, and contain a metes and bounds description thereof. Seller shall furnish or cause to be furnished any affidavits, certificates, assurances, and /or resolutions as required by the Title Company in order to amend the survey exception as required by Section 3.05, below. The description of the Property as set forth in the Survey, at the Buyer's election, shall be used to describe the Property in the deed to convey the Property to Buyer and shall be the description set forth in the Title Policy. Notwithstanding the Survey of the Property, the Purchase Price for the Property, as prescribed by Section 2.01, above, shall not be adjusted in the event the Survey shall determine the Property to be either larger or smaller than that depicted in Exhibit "A ", attached hereto. 3 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period ") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception Documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ( "Objections "), if any. All items set forth in the Schedule C of the Title Commitment, and all other items set forth in the Title Commitment which are required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or Exceptions that have been voluntarily placed on or against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day period, as may be extended by Buyer, in its sole discretion, then Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to Closing, in which event those Objections shall become Permitted Exceptions (herein so called), or (b) terminating this Contract by notice in writing prior to Closing and receiving back the Earnest Money, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.05 Title Policy. At Closing, Seller, at Seller's sole cost and expense, shall cause a standard Texas Owner's Policy of Title Insurance ( "Title Policy ") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended or deleted as follows: (a) survey exception must be amended if required by Buyer to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (b) no exception will be permitted for "visible and apparent easements" or words to that effect (although reference may be made to any specific easement or use shown on the Survey, if a Permitted Exception); (c) no exception will be permitted for "rights of parties in possession ", unless otherwise agreed by Buyer; (d) no liens will be shown on Schedule B. Notwithstanding the enumeration of the stated exceptions, amendments and /or deletions, Buyer may object to any Exception it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending ninety (90) calendar days thereafter (the "Absolute Review Period "), based on such appraisals, tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will provide to Seller, if requested by Seller, copies of (i) any and all non - confidential and non - privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance 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 made to another date, that: (a) The descriptive information concerning the Property set forth in this Contract is complete, accurate, true and correct. (b) There are no adverse or other parties in possession of the Property or any part thereof, and no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Article V, Section 5.02(x). (c) The Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions. (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (f) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject to no such liens. (g) Seller has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract, except a 6% real estate commission to Keller Williams Realty, Kathy Connell, Listing Agent. (h) All Leases, as defined in Article V, Section 5.02(x), shall have expired or otherwise terminated and any and all tenants or parties occupying the Property pursuant to the Leases shall have permanently abandoned and vacated the Property, including without limitation, all personal property of any such tenants or parties, on or before the date of Closing. (i) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) 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 lease agreements and /or occupancy agreements and /or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases "). (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or 6 would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing, or claims related thereto, concerning 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 agreements of Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, grant or permit to be attached or perfected, any lien, encumbrance, or charge thereon. (c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property under any written or oral contracts arising or entered into prior to Closing. (d) On or before Closing, Seller shall remove (i) any waste material or debris that are located upon, or may accumulate or otherwise be placed on the Property (the "Waste Material "), from the Property and dispose of same in accordance with all applicable statutes, regulations, riles, orders and ordinances; and (ii) all personal property from the Property. It is expressly stipulated that (i) the Waste Material shall be deemed at all times the property of Seller; and (ii) Buyer may retain, destroy, or dispose of any property, of any kind or type, left or remaining on the Property at Closing (the "Abandoned Property "), without liability of any kind to Buyer and without payment of consideration of any kind to Seller. In the event Buyer shall elect to store said Abandoned Property, Buyer may store such Abandoned Property in the name, and at the expense, of Buyer. (e) Seller shall provide necessary authorization required for any City initiated permitting, planning or zoning applications during the contract period, involving the subject property tracts. 5.02.A. Warranty of Buyer; Property Condition. Buyer represents and warrants to Seller that it has made, or will make prior to Closing, an independent inspection and evaluation of the Property and acknowledges that Seller has made no statements or representations concerning the present or future value of the Property, or the condition, including the environmental condition, of the Property. Except as otherwise specifically represented and warranted by Seller in this Contract, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED, STATUTORY, OR IMPLIED, AS TO THE VALUE, QUALITY, QUANTITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AND /OR MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, AND /OR MERCHANTABILITY OR 7 FITNESS FOR PURPOSE OF ANY OF THE PROPERTY. Buyer further acknowledges that it has relied solely upon its independent evaluation and examination of the Property, and public records relating to the Property and the independent evaluations and studies based thereon. Seller makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished to Buyer, if any, whether furnished by Seller or any third party. Seller assumes no liability for the accuracy, completeness or usefulness of any material furnished by Seller, if any, and /or any other person or party. Reliance on any material so furnished is expressly disclaimed by Buyer, and shall not give rise to any cause, claim or action against Seller. 5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller and Buyer contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Special Warranty Deed, as described in Article VII, Section 7.02(x). 5.04 Exception to Closure. Notwithstanding anything to the contrary in this Contract, Buyer may terminate this Contract by written notice to Seller in the event the City fails to close on the property identified in the City's Contract of Sale on the `Baudouin" property, immediately adjacent to the property described herein in Exhibit "A," insomuch as the Buyer's public purpose is only met with the acquisition of both tracts. In such event, the Buyer shall be entitled to a reimbursement of its earnest money. ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) Seller cures or Buyer waives in writing, within the time periods specified in Article III, all of Buyer's objections made in accordance with Article III. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except where 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, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property 9 is unsuitable to or for Buyer's purposes. 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written request from Buyer, promptly issue the instructions necessary to instruct 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 further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established with the Title Company, as escrowee. The Closing Date (herein sometimes called), shall be one hundred eighty (180) calendar days after the Effective Date, unless otherwise mutually agreed upon by Buyer and Seller. 7.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the Title Company, at the expense of the party designated herein, the following items: (i) The Title Policy, in the form specified in Article III, Section 3.05; (ii) The Special Warranty Deed, substantially in the form as attached hereto as Exhibit "B ", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; (iii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. (b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the following items: (i) The sum required by Article II, Section 2.01, less the Earnest Money in the form of a check or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between Seller and Buyer with respect to the Property: (a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at Closing shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. As soon as the amount of taxes levied against the Property for the calendar year in which Closing shall occur is known, Seller and Buyer shall readjust in cash the amount of taxes to be paid by each party with the result that Seller shall pay for those taxes attributable to the period of time prior to the Closing Date. If the conveyance contemplated by this Agreement or the use of the Property by the Buyer after the Closing results in the assessment of additional taxes, penalties or interest (the "Rollback Assessments ") for periods prior to Closing, Seller shall not be responsible for the Rollback Assessments. If Rollback Assessments are or become due as a result of any activity, use, non -use or any other matter occurring prior to Closing, or from the denial of a special use valuation of the Property, Seller shall be responsible for the Rollback Assessments. Without limiting the general nature of Section 5.03 herein, the obligations contained herein shall survive Closing and shall not be merged with the Special Warranty Deed. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 7.05 Costs of Closing. 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 identified herein as being the responsibility of Seller. Buyer is responsible for paying all other fees, costs and expenses related to Closing. ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or 10 (iii) Seller fails to deliver at Closing, the items specified in Article VII, Section 7.02(x) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's remedies for the default, may, at Buyer's sole option, do any of the following: (i) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and Seller shall, promptly on written request from Buyer, execute and deliver any documents necessary to cause the Title Company to return to Buyer the Earnest Money; (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment, whereupon Buyer shall waive title objections, if any, and accept such title without reduction in Purchase Price on account of title defects and shall 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, contract or otherwise. 8.02 Buyer's Default and Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedy for the default, may, at Seller's sole option, do either one of the following: (i) Terminate this Contract by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company to return to Seller the Earnest Money; or (ii) Enforce specific performance of this Contract against Buyer. 11 ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, delivered, unless expressly provided otherwise in this Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be deemed to be delivered and received, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Barbara Gates Laughlin and Carla G. Hopper Individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased Copies to: For Seller: Telecopy: IC o • City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349 -8951 For Buyer: Anita Burgess, City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 382 -7923 9.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, constriction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN DENTON COUNTY, TEXAS. 9.03 Entirety 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 Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective devisees, heirs, successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Denton County, Texas, imparting notice of this Contract to the public. 12 9.05 Risk of Loss. If any damage to the Property shall occur prior to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or party other than Buyer that might result in the taking of any portion of the Property, Buyer may, at Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to Buyer; or (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive (i) in the case of damage, all insurance proceeds, if any; and (ii) in the case of eminent domain, all proceeds paid for the Property related to the eminent domain proceedings. Buyer shall have ten (10) calendar days after receipt of written notification from Seller on the final settlement of all condemnation proceedings or insurance claims related to damage to 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, in form and substance satisfactory to Buyer, all interests of Seller in and to any and all insurance proceeds or condemnation awards which may be payable to Seller on account of such event. In the event Buyer elects to close upon this Contract after final settlement, as described above, Closing shall be held five (5) business days after such final settlement. 9.06 Further Assurances. In addition to the acts and deeds recited in this Contract and contemplated to be performed, executed and /or delivered by Seller and Buyer, Seller and Buyer agree to perform, execute and /or deliver, or cause to be performed, executed and /or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article IX, Section 9.06 shall survive Closing. 9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 9.09 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract, including without limitation, adjustment of the Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of Denton, Texas, to P.S. Arora, Wastewater Engineer of Buyer, or his designee. 9.10 Contract Execution. This Contract of Sale may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. 13 9.11 Business Days. If the Closing Date or the day of performance required or permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then the Closing Date or the date of such performance, as the case may be, shall be the next following regular business day. 614""119 of the Estate of Connie Morris Altemus, deceased Barbara Gates Laughlin Barbara Gates Laughlin, Co- Independent Executrix of the Estate of Connie Morris Altemus, deceased Executed by Seller on the day of 2014. BUYER: By: GEORGE C. CAMPBELL, CITY MANAGER Executed by Buyer on the _ day of ATTEST: JENNIFER WALTERS, CITY SECRETARY mm APPROVED AS TO LEGAL FORM: 14 tA ZC/ 2014. 9.11 Business Days. If the Closing Date or the day of performance required or pennitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then the Closing Date or the date of such performance, as the case may be, shall be the next following regular business day. Carla Gates Hopper Carla Gates Hopper, Co- Independent Executrix of the Estate of Connie Morris Altemus, deceased -2 ��arara Gates Laughlin Barbara Gates Laughlin,'Co- Independent Executrix./",,-)-)-- of the Estate of Connie Morris Altemus, deceased/�(- Executed by Seller on the day of 2014. . . . ....... . lalik'"N M GEORGE C. CAMPBELL, CITY MANAGER Executed by Buyer on the -- day of ATTEST: JENNIFER WALTERS, CITY SECRETARY M 14 ANITA BURGESS, CITY ATTORNEY IC 15 RECEIPT OF AGREEMENT BY TITLE COMPANY 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 Contract to perform its duties pursuant to the provisions of this Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Capital Title of Texas LLC Denton, Texas 76201 IM Printed Name: Title: Contract receipt date: , 2014 16 EXHIBIT "A" to Contract of Sale Legal Description METES & BOUNDS DESCRIPTION TRACT I A 12.48 ACRE (CALLED 12.46 ACRE) TRACT OF LAND, SITUATED IN THE B.B.B. & C. R.R. CO. SURVEY, ABSTRACT NUMBER 196, DENTON COUNTY, TEXAS, AND BEING THE SAME TRACT OF LAND AS CONVEYED FROM BOBBIE M. SIMMS TO CONNIE ALTEMUS IN VOLUME 901, PAGE 774, DEED RECORDS OF DENTON COUNTY, TEXAS, SAID TRACT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING at a found 1/2" iron rod in the westerly R.O.W. line of Farm to Market Road No. 1830 (A /K /A, F.M. 1830, Country Club Road (an 80' Public R.O.W.) For the northeast comer of the herein described tract, the southeast comer of a 22.41 acre tract this day surveyed (being the same tract of land as recorded in Doc. No. 2011- 35969, Official Public Records of Denton County, Texas; THENCE along and with said R.O.W., generally along a fence, South 00 °37'41" West, a distance of 891.48 feet (called South 00 °28'50" West, a distance of 893.80 feet) to a point of reference from which a found 1/2" iron rod with yellow cap bears South 88 °33'57" East, a distance of 0.45 feet for the southeast comer of the herein described tract, the northeast corner of a called 1.457 acre tract conveyed to Burch Family Farm, Ltd. in Doc. No. 2007- 110043, Official Public Records of Denton County, Texas; THENCE along and with the northerly boundary line of said Burch Family Farm Tract, generally along a fence, North 88 °33'57" West, a distance of 297.84 feet (called North 88 °26'50" West, a distance of 296.50 feet) to a found 1/2" iron rod for the southwest comer of the herein described tract, a point in the easterly R.O.W. line of a Variable Width Railroad R.O.W. conveyed to G.C. & S.F. Rail Road; THENCE along and with said R.O.W., generally along a fence, North 33 °56'34" West, a distance of 1097.19 feet (called North 34 002140" West, a distance of 17 1098.50 feet) to a found 1/2" iron rod for the northwest corner of the herein described tract, the southwest corner of said 22.41 Acre Tract; THENCE along and with the southerly boundary line of said 22.41 Acre Tract, South 88 °21 '58" East, a distance of 920.52 feet (called South 88 °26'50" East, a distance of 918.60 feet) to the POINT OF BEGINNING and containing 12.48 acres, more or less. i8 METES & BOUNDS DESCRIPTION TRACT II A 38.01 ACRE (CALLED 31.51 ACRE) TRACT OF LAND, SITUATED IN THE B.B.B. & C. R.R. CO. SURVEY, ABSTRACT NUMBER 196, DENTON COUNTY, TEXAS, AND BEING THE SAME TRACT OF LAND AS CONVEYED TO CONNIE ALTEMUS AND DESCRIBED IN VOLUME 901, PAGE 777, DEED RECORDS OF DENTON COUNTY, TEXAS, SAID TRACT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING at a set 1/2" iron rod in the westerly R.O.W. line of a Variable Width Railroad R.O.W. conveyed to G.C. & S.F. Rail Road in Vol. 13, Pg. 388, Civil Minutes of Denton County, Texas for the northeast corner of the herein described tract, the southeast corner of a 27.93 acre tract this day surveyed (called 27.92 acres in Doc. No. 2011- 35970, Official Public Records of Denton County, Texas) said rod being located North 88 °25'06" West, a distance of 155.86 feet from a found 1/2" iron rod marking northwest corner of a 12.48 acre tract this day surveyed (called 12.46 acres in Vol. 901, Pg. 774, Deed Records of Denton County, Texas); THENCE along and with said R.O.W., generally along a fence, South 34 °00'30" East, a distance of 1098.75 feet to a point of reference from which a found 1/2" iron rod with yellow cap bears South 31 °30'30" East, a distance of 0.87 feet for the southeast corner of the herein described tract, the northeast comer of a called 222.275 acre tract conveyed to Burch Family Farm, Ltd (called First Tract) in Doc. No. 2007 - 110043, Official Public Records of Denton County, Texas; THENCE along and with the northerly boundary line of said First Tract, North 88 033157" West, at a distance of 838.91 feet passing a found 1/2" iron rod marking the northeast corner of a called 3.029 Acre tract conveyed to Nelda Hackett in Doc. No. 2007 - 110043, Official Public Records of Denton County, Texas, a total distance of 2156.55 feet to a set 1/2" iron rod for the southwest corner of the herein described tract, said rod being located in the common boundary line of the said B.B.B.& C.R.R. Co. Survey, Abstract No. 196 and the W. Roark Survey, Abstract No. 1087, a point in the northeasterly boundary line of the said Burch Family Farm, Ltd. First Tract; THENCE along and with the easterly boundary line of said Burch Family Farm Tract, the said common Survey boundary, North 00 030'45" East, a distance of 900.61 feet to a point of reference in a creek for the northwest corner of the herein described tract, the southwest corner of said 27.93 Acre Tract; THENCE along and with the southerly boundary line of said 27.93 Acre Tract, South 88 021'58" East, a distance of 1533.89 feet (called South 88 026'50" East, a 19 distance of 1533.90 feet) to the POINT OF BEGINNING and containing 38.01 acres, more or less. 20 EXHIBIT "B" TO CONTRACT OF SALE NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS That Carla Gates Hopper, individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased, and Barbara Gates Laughlin individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased (herein collectively called "Grantor "), for and in consideration of the sum of TEN AND NO /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 "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). 21 Exceptions to conveyance and warranty: [Insert Permitted Exceptions, if any] Grantor hereby assigns to Grantee, without recourse or representation, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof when the claim is by, through, or under Grantor but not otherwise. EXECUTED the day of , 2014 Carla Gates Hopper Carla Gates Hopper, Co- Independent Executrix of the Estate of Connie Morris Altemus, deceased Barbara Gates Laughlin Barbara Gates Laughlin, Co- Independent Executrix of the Estate of Connie Morris Altemus, deceased 22 ACKNOWLEDGMENT THE STATE OF COUNTY OF This instrument was acknowledged before me on , 2014 by Carla Gates Hopper, individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF COUNTY OF This instrument was acknowledged before me on , 2014 by Barbara Gates Laughlin individually and as Independent Co- Executrix of the Estate of Connie Morris Altemus, deceased. Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, TX 76209 23 Notary Public, State of Texas My commission expires: Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 Exhibit "A" To Special Warranty Deed Legal Description METES & BOUNDS DESCRIPTION TRACT I A 12.48 ACRE (CALLED 12.46 ACRE) TRACT OF LAND, SITUATED IN THE B.B.B. & C. R.R. CO. SURVEY, ABSTRACT NUMBER 196, DENTON COUNTY, TEXAS, AND BEING THE SAME TRACT OF LAND AS CONVEYED FROM BOBBIE M. SIMMS TO CONNIE ALTEMUS IN VOLUME 901, PAGE 774, DEED RECORDS OF DENTON COUNTY, TEXAS, SAID TRACT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING at a found 1/2" iron rod in the westerly R.O.W. line of Farm to Market Road No. 1830 (A /K/A, F.M. 1830, Country Club Road (an 80' Public R.O.W.) For the northeast comer of the herein described tract, the southeast comer of a 22.41 acre tract this day surveyed (being the same tract of land as recorded in Doc. No. 2011- 35969, Official Public Records of Denton County, Texas; THENCE along and with said R.O.W., generally along a fence, South 00 °37'41" West, a distance of 891.48 feet (called South 00 °28'50" West, a distance of 893.80 feet) to a point of reference from which a found 1/2" iron rod with yellow cap bears South 88 °33'57" East, a distance of 0.45 feet for the southeast comer of the herein described tract, the northeast corner of a called 1.457 acre tract conveyed to Burch Family Farm, Ltd. in Doc. No. 2007-110043, Official Public Records of Denton County, Texas; THENCE along and with the northerly boundary line of said Burch Family Farm Tract, generally along a fence, North 88 °33'57" West, a distance of 297.84 feet (called North 88 °26'50" West, a distance of 296.50 feet) to a found 1/2" iron rod for the southwest comer of the herein described tract, a point in the easterly R.O.W. line of a Variable Width Railroad R.O.W. conveyed to G.C. & S.F. Rail Road; THENCE along and with said R.O.W., generally along a fence, North 33 °56'34" West, a distance of 1097.19 feet (called North 34 °02'40" West, a distance of 1098.50 feet) to a found 1/2" iron rod for the northwest corner of the herein described tract, the southwest corner of said 22.41 Acre Tract; THENCE along and with the southerly boundary line of said 22.41 Acre Tract, South 88 °21 '58" East, a distance of 920.52 feet (called South 88 °26'50" East, a distance of 918.60 feet) to the POINT OF BEGINNING and containing 12.48 acres, more or less. 24 25 s: ,water engineering engr real estateAprojects row shared \projects \hickory creek detention facility -fall 2013 \tract 2 - altemus estate \contract of sale \cao contract of sale \altemus - contract of sale (4).doc METES & BOUNDS DESCRIPTION TRACT II A 38.01 ACRE (CALLED 31.51 ACRE) TRACT OF LAND, SITUATED IN THE B.B.B. & C. R.R. CO. SURVEY, ABSTRACT NUMBER 196, DENTON COUNTY, TEXAS, AND BEING THE SAME TRACT OF LAND AS CONVEYED TO CONNIE ALTEMUS AND DESCRIBED IN VOLUME 901, PAGE 777, DEED RECORDS OF DENTON COUNTY, TEXAS, SAID TRACT BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING at a set 1/2" iron rod in the westerly R.O.W. line of a Variable Width Railroad R.O.W. conveyed to G.C. & S.F. Rail Road in Vol. 13, Pg. 388, Civil Minutes of Denton County, Texas for the northeast corner of the herein described tract, the southeast corner of a 27.93 acre tract this day surveyed (called 27.92 acres in Doc. No. 2011- 35970, Official Public Records of Denton County, Texas) said rod being located North 88 °25'06" West, a distance of 155.86 feet from a found 1/2" iron rod marking northwest corner of a 12.48 acre tract this day surveyed (called 12.46 acres in Vol. 901, Pg. 774, Deed Records of Denton County, Texas); THENCE along and with said R.O.W., generally along a fence, South 34 °00'30" East, a distance of 1098.75 feet to a point of reference from which a found 1/2" iron rod with yellow cap bears South 31 °30'30" East, a distance of 0.87 feet for the southeast corner of the herein described tract, the northeast comer of a called 222.275 acre tract conveyed to Burch Family Farm, Ltd (called First Tract) in Doc. No. 2007- 110043, Official Public Records of Denton County, Texas; THENCE along and with the northerly boundary line of said First Tract, North 88 °33'57" West, at a distance of 838.91 feet passing a found 1/2" iron rod marking the northeast corner of a called 3.029 Acre tract conveyed to Nelda Hackett in Doc. No. 2007 - 110043, Official Public Records of Denton County, Texas, a total distance of 2156.55 feet to a set 1/2" iron rod for the southwest corner of the herein described tract, said rod being located in the common boundary line of the said B.B.B.& C.R.R. Co. Survey, Abstract No. 196 and the W. Roark Survey, Abstract No. 1087, a point in the northeasterly boundary line of the said Burch Family Farm, Ltd. First Tract; THENCE along and with the easterly boundary line of said Burch Family Farm Tract, the said common Survey boundary, North 00 °30'45" East, a distance of 900.61 feet to a point of reference in a creek for the northwest corner of the herein described tract, the southwest corner of said 27.93 Acre Tract; THENCE along and with the southerly boundary line of said 27.93 Acre Tract, South 88 °21'58" East, a distance of 1533.89 feet (called South 88 °26'50" East, a distance of 1533.90 feet) to the POINT OF BEGINNING and containing 38.01 acres, more or less. 27 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: City Manager's Office CM/DCM /ACM: George C. Campbell, City Manager SUBJECT: Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and The University of North Texas for the purpose of hosting the African Cultural Festival; providing for the expenditure of funds therefore; and providing for an effective date. BACKGRO [.,JN is This agreement allows for the total expenditure of $600 from Council Contingency Funds. (Mayor Burroughs $300, Mayor Pro Tem Kamp $200, and Council Member Hawkins $100) Key provisions of the agreement include: Funds shall be used by the University for airfare, lodging, meals and reception for the African Ensemble and African Chiefs. In addition to other reporting requirements, documentation in the form of cancelled checks and /or corresponding receipts specifically detailing expenditure of funds for the purpose provided is required for reimbursement from these designated funds. FISCAL INFORMATION Funding for the contract will come from Council contingency fund accounts. Respectfully submlue4. (jeorgc C. Campbell City Manager Prepared by: Linda Holley Senior Executive Assistant SALegal\Our DocumentAOrdinancesU4 \sery agr -UNT African Cultural Festival.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE UNIVERSITY OF NORTH TEXAS FOR THE PURPOSE OF HOSTING THE AFRICAN CULTURAL FESTIVAL; PROVIDING FOR THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton hereby finds that the agreement between the City and the University of North Texas for the purpose of hosting the African Cultural Festival, attached hereto and made a part hereof by reference (the "Agreement "), serves a municipal and public purpose and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to carry out the duties and responsibilities of the City under the Public Service Agreement, including the expenditure of funds as provided in the Agreement. SECTION 3. This Ordinance shall becorne effective immediately upon its passage and approval. PASSED AND APPROVED this the .......... day of „ 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY MM APPROVED AS TO LEGAL FORM: ANITA :BURGESS, CITY ATTORNEY µµ BY: ,,�Y " mm__� i ....:..._ ... sAegal\our documents \con1racts \14 \sery agr -unt african cultural festival.doc SERVICE R — Ii This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City ", and the University of North Texas, a Texas Non -Profit Corporation, hereinafter referred to as "University "; WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of paying for contractual services; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest; NOW, THEREFORE, the parties hereto mutually agree as follows: I. SCOPE OF SERVICES University shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by City may be used: The funds being provided shall be used by the University to for airfare, lodging, meals and reception for the African Ensemble and African Chiefs. II. OBLIGATIONS OF UNIVERSITY In consideration of the receipt of funds from City, University agrees to the following terms and conditions: A. Six Hundred Dollars and no /100 ($600,00) shall be paid to University by City to be utilized for the purposes set forth in Article I. B. University will maintain adequate records to establish that the City funds are used for the purposes authorized by this Agreement. C. University will permit authorized officials of City to review its books at any time. D. Upon request, University will provide to City its By Laws and any of its rules and regulations that may be relevant to this Agreement. E. University will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. sAlegihour documentskon tracts\ 14V%ery agr-urit a frican cit h tirl I 1'estival.doc F. University will appoint a representative who will be available to meet with City officials when requested. G. University will submit to City copies of year-end audited financial statements. 111. TIME OF PERFORMANCE The services funded by City shall be'undertaken and completed by University within the following time frame: The term of this Agreement shall commence on the effective date and terminate September 30, 2014, unless the contract is sooner terminated under Section VII "Suspension or Termination". I A. PAYMrNTS TO UNivERSITY. City shall pay to University the sum specified in Article II after the effective date of this Agreement. B. EXCESS PAYMENT. University shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: I ) has resulted in overpayment to University; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION University agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. University agrees to make available its financial records for review by City at City's discretion. In addition, University agrees to provide City the following data and reports, or copies thereof: A. All external or internal audits. University shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or internal evaluation reports, C. An explanation of any major changes in program services. D. To comply with this section, University agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services Page 2 sAlegakour documentskonlrficts\Wsery agr-unt aft icall cullural festiva L doe performed under this Agreement. University's recur( sysl:elllsll�,,Ilicoiltaiiis,Lif[icientdocumentation to provide in detail full support and justification fcv each ex petidit tire. tjni versity agrees to retain all books, records, documents, reports, and written accounting procedure, pertaining to the services provided and expenditure of funds under this Agreement for five years. E. Nothing in the above subsections shall be construed to relieve University of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. VI, DIRECTORS' MEETINGS During the term of this Agreement, University shall deliver to City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof wherein this program is a part of the subject matter of the meeting. Such notice shall be delivered to City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. University understands and agrees that City's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of University's governing body shall be available to City within ten (10) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if. University violates any covenants, agreements, or guarantees of this Agreement, the University's insolvency or filing of bankruptcy, dissolution, or receivership, or the University's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. E I �AL, 0[11101(11,1�,� ITY NI) (,'ON11 P1,,)ANC, I . " WITH LANNIS --.,,Q- - -.8-- - - --- -------- --11 1 � 1� - - ------- -- . ...... - A. University shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. University will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations, C. In the event of University's non-compliance with the non-discrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and University may be barred from further contracts with City. M sAlcgakour doctiilleiits\colltracts\14\sery ngr-u tit itfrican cu I I im, I festival doc X. CHANGES AND AMLNDNJENTS sAlegfihour dociiiiietits\coiitracls\14\sery agr-tint africin cultural restival,doe C. University shall. notify City of any changes in personnel or governing board composition. XI. INDEMNIFICATION XII. CONFLICT _0FINTEME51 A. University coven-ants 111,11 neither it nor any member of its governing body presently has any interest, direct or indirect, would conflict in any manner or degree with the performance of services required to be ttcd"onncd under this Agreement. University further covenants that in the perlorIT1,111Ce of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. University further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself /herself, or others; particularly those with which he/she has family, J,)usiness, or other ties. C. No officer, member, or employee of pity an(l 1)(3 11jernlicr orits governing body who exercises any function or responsibilities in the review c)r Iipprov,'11 Oftllc undertaking or czirrying OUt of this Agreement shall participate in any decision rclaliiq., to the Apreenlent Wfii,cll kiffects 11is personal interest or the interest in any corporation, partnens,lIip in which lie has direct or indirect interest, X111. NOTICE Any notice or other written instrument required or perinitted to be delivered under the ten d. of this Agreement shall be deemed to have been delivered, whether actually receiver not, wh ,p*ag,LXsjui—d re�istered or certified, return receipt requestel or via hand-delivery or facsimile, addressed • University or City, as the case may be, at t following addresses: I W= City nf Denton, Texas Attn: City Manager 215 E. McKinney Denton, I}{7630l Fax No. 940.349.0596 UNIVERSITY UNT College of Music 1155 Union CircleNo. 311367 Denton, TX 76203-5017 Fax No. 940.565,2002 Either party may change its mailing address by sending notice nf change of address to the other at the above address 6v certified mail, return receipt requested. }QV. MISCELLANEOUS A. University uba) not 1ouuufer, pledge or otherwise uauigu this Agreement or any interest oc any claim ' udoiogthereunder 10 'ny party or parties, bank, trust company orother financial institution without the prior written approval of City. B. lf any provision ofthis Agreement io held tobe invalid, illegal, oz unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to University hereunder, or any other act mfailure of City to insist in any one nr more instances upon the terms and conditions of this Agreement consti- tute nzbe construed io any way tobea waiver by(�iLym[aoy breach o�oovcumrtgrde1lu�`�bidh cuuy then or subsequently bouonouoit1cdhvDuiversi�y. I�u�A�c,uba|�mm���uycn�m{,�oi^mrocmimm��u tu any manner impair uz prejudice uuydght,povvc;',yri*iYcgc"orreirt*dyavuilob\eLoCitytoemfou:e its rights hereunder, which rights, powers, privileges, or npcuificm]ly prepervec. No representative or agent of City may waive the effect o[ this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between de pudice hereto, and any prior agreement, assertion, otatemcnt, understanding, or other commitment occurring during the term of this Agreement or subsequent thereto, have any legal force or effect whatsoever, uo)eou properly executed iu writing, and if appropriate, recorded ou uu amendment of this Agreement. E This - shall be interpreted iu accordance with the laws of the State ofTexas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting ioDenton County, Tusma. sAlegalkour docunic)i0contractAlMsery agr-unt afficim cultural festival.doc IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the _ day of _ . . .... . '-, 2014 ATTEST: JEANIFER. WALTERS, CITY SECRETARJJ IM rllmxffjmn�� 1-310 1 IVA 1-Ill M 16230MM� BY: Im SECRETARY WFIRMENZIM UNIVERSITY OF NORTH TEXAS BY: (2 MIDAV/0 (itDEON ALORWOYIE PROFESSOR- T COLLEGE OF MUSIC sm AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Parks and Recreation ACM: John Cabrales, Jr. SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of the Thin Line Film and Music Festival. The event will be held on City property, in the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland streets, beginning on Wednesday, February 12, from 6 until 10:30 p.m., Thursday, February 13, from 2 until 10:30 p.m., Friday, February 14 from 2 until 10:30 p.m., Saturday, February 15 from 10 a.m. until 10:30 p.m., and concludes on Sunday, February 16 from noon until 10:30 p.m. The exception is specifically requested to increase sound levels from 70 to 75 decibels, an extension of hours from 10 to 10:30 p.m., and for amplified sound on Sunday. Staff recommends approval. BACKGROUND This is the first time the Thin Line Film and Music Festival will feature live bands playing during the five -day festival. Thin Line will include a multi - venue, multi -genre music festival and will have up to 60 performing acts. The parking area was previously owned by Denton County and was the Motor Vehicle Tax Office and is located west of the Oak Street Drafthouse. PRIOR ACTION/REVIEW City Council has approved previous requests for exceptions to the noise ordinance to be increased from 70 to 75 decibels for the events held in the Downtown area. EXHIBITS Letter of Request Respectfully submitted: . 06.'4 "*�6. Emerson Vorel, Director Parks and Recreation Department Prepared by: Me 4t.Q Community Events Coordinator C 9(pi r�iN'HrcCYUtidi�� ��t�";N4w7rcOWllry�l(�ry Sound Variance for 2014 Thinline Film and Music Festival The organizers of the Thinline Film and Music Festival would like ask the Denton City Council to approve a sound variance for the lot on the 300 block of Oak ST and Oakland for the purpose of an outdoor film and music festival on the following days, February 12 -16. Thinline would like to request a sound variance not to exceed 75 dba between the hours of 6pm and 10:30pm Wednesday February 12, 2pm- 10:30pm Thursday February 13, 2pm- 10:30pm Friday February 14, 10am- 10:30pm Saturday February15 and 12pm- 10:30pm Sunday February 16. Thinline Film and Music Festival will conform to the guidelines laid out in the City of Denton Community Events Manual. AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Economic Development ACM: John Cabrales, Jr. SUBJECT Consider adoption of an ordinance adopting a onetime rental policy and a schedule of rental fees for the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets, for a one time use by the Thin Line Film Festival, and providing an effective date. Staff recommends approval. BACKGROUND Thin Line Film Festival, Texas' only documentary film festival, held its inaugural event in September of 2007 and has grown each sequential year. Now in its seventh year, the festival is adding a music element. In order to expand the programming, they requested the use of Williams' Trade Square to erect a 50 by 115 foot tent. East Hickory Street and Williams' Square will be under constriction during the requested time frame, so staff suggested the parking area south of 300 E. McKinney, bordered by E. Oak and Oakland Streets. The City has a rental policy and schedule of rental fees established for Williams Square; the same policy will be applied to this one time use. RECOMMENDATION Staff recommends approval. PRIOR ACTION/REVIEW (Council, Boards, Commissions) There is no prior action on this item. FISCAL INFORMATION Revenue to the City -- $450 Respectfully submitted: - 4,1 Julie Glover Economic Development Program Administrator sAlegal \our documents \ordinances \14 \thin line film festival ordinance.doe ORDINANCE NO AN ORDINANCE ADOPTING A ONE TIME RENTAL POLICY AND A SCHEDULE OF RENTAL FEES FOR THE PARKING AREA SOUTH OF 300 E. MCKINNEY STREET, BORDERED BY E. OAK AND OAKLAND STREETS, FOR A ONE TIME USE BY THE THIN LINE FILM FESTIVAL, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Thin Line Film Festival requested the use of Williams Square, located east of the Square, between E. Hickory and Mulberry Streets; and WHEREAS, Williams Square will be under construction during the requested time frame (February 12 -16, 2014); WHEREAS, it is in the public interest to support local art events and festivals; WHEREAS, the City offers the Thin Line Film Festival the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets, as an alternative location for the festival, pursuant to the same rental policy and schedule of rental fees applicable to Williams Square; and WHEREAS, the Thin Line Film Festival is desirous of accepting the City's offer pursuant to the terms and conditions of this Ordinance; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Rental Guidelines and Rental Schedule for Williams Square as set forth in Exhibit "A ", attached hereto and made a part hereof for all purposes, shall be used for the parking area located south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets, is hereby approved and adopted. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A BURROUGHS, MAYOR sAlegal\ our documents \ordinances \14 \thin line film festival ordinance.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM ANITA BURGESS, CITY ATTORNEY BY: Z. EXHIBIT A Rental Guidelines and Rental Schedule of Fees for Williams Square Williams Square is located east of the Square, between E. Hickory and Mulberry Streets. When the Williams' family deeded the property to the City of Denton, it was stated that the area should be used "for public use or parking." This area is currently used for parking; if a group or individual is interested in using the space for an event, the following rules will apply: Contact the City's Community Event Coordinator six (6) weeks in advance regarding Special Events Agreement, sound levels, recycling and street closures. No alcoholic beverages will be allowed on City property unless approved by City Council. If requesting a noise exception or to have alcohol in Williams Square, the application requires eight (8) weeks' notice. An application to hold a special event does not constitute approval for the event nor issuance of a permit. Final event approval and permit issuance is conducted by the Denton Fire Department; 2. Event must have insurance and include the City of Denton as an "Additional Insured" entity; 3. The area may be used a maximum of four (4) consecutive days; 4. Individuals or groups are limited to using the area three (3) times per year; 5. Full payment is required 48 hours prior to the event. A $100 deposit is required, which will be refunded once the event is over and the area is clean; 6. The event must increase economic development in Denton (i.e., hotel rooms booked by groups or participants, increased sales tax during event, etc.); Rental Rates: Half day (six hours) $ 50 Full day (twelve hours) $100 24 hours $150 Multi -day maximum (4 days) $450 Cash, checks or money orders accepted. Make checks or money orders payable to: City of Denton. Mail or bring payment to: Economic Development, 215 E. McKinney, Denton, TX 76201 Williams' Square Rental Check List ❑ Meet with Economic Development Project Administrator regarding available dates for Williams' Square. ❑Contact the City's Community Event Coordinator six (6) weeks in advance. If requesting a noise exception or to have alcohol in Williams Square, the application requires eight (8) weeks' notice. ❑ Complete Special Events Application and all necessary forms. ❑ Add City of Denton as an "Additional Insured" entity to event insurance policy. ❑ Provide and place adequate barricades or cones to block off area at least 3 hours prior to event. ❑ Provide a trash/recycle plan to ensure area is litter free during and after event. ❑ Make payment to City of Denton. ❑ After event, the area must be clean, litter free and barricades removed in order to receive $100 deposit reimbursement. AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Economic Development ACM: John Cabrales, Jr. SUBJECT Consider approval of a resolution allowing Sweetwater Grill & Tavern to be the sole participant allowed to sell alcoholic beverages at the Thin Line Film Festival, February 12, 2014 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 approval. BACKGROUND Thin Line Film Festival, Texas' only documentary film festival, held its inaugural event in September of 2007 and has grown each sequential year. Sweetwater Grill & Tavern has requested to be able to sell alcoholic beverages on city property during the festival on February 12, 2014. This privilege does not extend beyond the date of the THIN LINE FILM FESTIVAL set for the year 2014. RECOMMENDATION Staff recommends approval of the resolution and agreement as submitted, which is consistent with agreements for other events serving alcoholic beverages. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION None EXHIBITS Thin Line Letter of Request Resolution Respectfully submitted: - 4,1 Julie Glover Economic Development Program Administrator IS INOWNWHI 11 5012 Pebble Beach T[ Denton, TX7620B O/F(888)893-4560 Board of Directors Joshua Butler, President Kathy Orr, Nm+Piresidom1 Paul Meltzer, Vlre-Ppnsidemt SusanGeabom. Secretary James King, Treasurer Ken Leathers Pat Reinke Bryan Denny Alex Payne Karen OiVimnoy Gail Patterson Tsnia Kha|af Sharon Davis Ex-Officio Directors Kim Stanton Matthew Crawford Alcohol Variance for 2014 Thin Line Film and Music Festival The organizers of the Thin Line Film and Music Festival would like to ask the Denton City Council to approve a variance to allow for the sale of alcohol within the parking area south of300E. McKinney Street, bordered byE. Oak and Oakland Streets during the Thin Line Film and Music Festival on February 12-16. Thin Line is partnering with five local businesses to accommodate alcohol sales. Each business will obtain the necessary permits to sell alcohol for one day. C:\ Users \106905\AppData \Local\ Microsoft \Windows \Temporary Internet Files \Content . Out] ook \XDOZHFSV \Thin Line Film Festival alcohol sell Sweetwater.doc RESOLUTION NO. A RESOLUTION ALLOWING SWEETWATER GRILL & TAVERN TO BE THE SOLE PARTICIPANT ALLOWED TO SELL ALCOHOLIC BEVERAGES AT THE THIN LINE FILM FESTIVAL FEBRUARY 12, 2014, 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. WHEREAS, the City of Denton ( "City ") is the owner of the of the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets; and WHEREAS, the City Council finds that it is in the public interest to select only one vendor of alcoholic beverages on February 12, 2014 at the Thin Line Film Festival; and WHEREAS, Sweetwater Grill & Tavern has requested that they be the sole participant allowed to sell alcoholic beverages at this year's Thin Line Film Festival on February 12, 2014; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. Sweetwater Grill & Tavern shall be the sole participant allowed to sell alcoholic beverages on City property at the Thin Line Film Festival February 12, 2014, at the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets upon the following conditions: 1. They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; 2. They shall provide the security necessary for the sale of alcoholic beverages; 3. They shall provide general comprehensive liability insurance from a responsible carrier, with the City as an additional insured, in the amount of $500,000.00; 4. They shall provide Liquor /Dram Shop Liability in the amount of $250,000 per occurrence; 5. They agree to indemnify the City of Denton against any liability incident to the selling of alcoholic beverages at the Thin Line Film Festival. SECTION 2. The City Manager or his designee is authorized to execute an agreement in conformity with this Resolution, which shall be substantially in the form of the agreement attached hereto and made a part hereof by reference. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY . APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: —' C: \Users \manager \Desktop \Thin Line Film Festival Alcohol Contract Sweetwater (2).doc CITY OF DENTON AGREEMENT WITH SWEETWATER GRILL & TAVERN STATE OF TEXAS § COUNTY OF DENTON § This Agreement, made this �� day of�uh�tGzY , 2014, by and between the City of Denton, a municipal corporation, hereinafter eferred to as the "CITY" and SWEETWATER GRILL & TAVERN. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE 1 GENERAL The City grants to SWEETWATER GRILL & TAVERN the exclusive privilege to sell alcoholic beverages, subject to the exceptions and conditions hereinafter set forth, for the THIN LINE FILM FESTIVAL on FEBRUARY 12, 2014, to be held on city property located at the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets. This privilege does not extend beyond the date of the THIN LINE FILM FESTIVAL set for the year 2014. ARTICLE 2 SCOPE OF SERVICES SWEETWATER GRILL & TAVERN in order to exercise the privilege to sell alcoholic beverages must perform the following: A. SWEETWATER GRILL & TAVERN shall be solely responsible for the rental and payment for any booth space necessary for the sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. B. SWEETWATER GRILL & TAVERN shall be solely responsible to obtain any temporary license and permit necessary for the selling of alcoholic beverages at the THIN LINE FILM FESTIVAL. C. SWEETWATER GRILL & TAVERN shall be solely responsible for the obtaining and paying for any security necessary for their sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. SWEETWATER GRILL & TAVERN'S failure to do any of the above and to show proper proof of compliance shall waive their right to exercise the privilege of selling alcoholic beverages at the THIN LINE FILM FESTIVAL. ARTICLE 3 LOCAL RULES AND REGULATION SWEETWATER GRILL & TAVERN agrees to abide by all municipal, county, state and federal laws, ordinances, rules and regulations and specifically, without limitation, to obtain all necessary and proper licenses, permits and authorizations, and to comply with the requirements of any duly authorized person acting in connection therewith. SWEETWATER GRILL & TAVERN shall pay all taxes, if any, of every nature and description arising out of or in any manner connected with the sale of alcoholic beverages. SWEETWATER GRILL & TAVERN will exercise reasonable care and due diligence in their sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. ARTICLE 4 INDEMNITY AGREEMENT SWEETWATER GRILL & TAVERN shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, losses, and expenses, including but not limited to, court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of SWEETWATER GRILL & TAVERN or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 5 INSURANCE During the performance of the Agreement, SWEETWATER GRILL & TAVERN shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less that $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Liquor /Dram Shop Liability in the amount of $250,000 per occurrence for any event occurring on City -owned property where alcohol will be provided or served. THIN LINE FILM FESTIVAL Agreement — Page 2 C. SWEETWATER GRILL & TAVERN shall furnish insurance certificates or insurance policies at the CITY'S request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without written notice to the CITY and SWEETWATER GRILL & TAVERN. In such event, SWEETWATER GRILL & TAVERN shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE 6 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: SWEETWATER GRILL & TAVERN CITY OF DENTON: Karen Meredith City Manager 115 S. Elm Street 215 E. McKinney Denton, Texas 76201 Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE 7 ENTIRE AGREEMENT This Agreement, consisting of five (5) pages and 0 exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE 8 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. THIN LINE FILM FESTIVAL Agreement — Page 3 ARTICLE 9 DISCRIMINATION PROHIBITED In performing the services required hereunder, SWEETWATER GRILL & TAVERN shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 10 PERSONNEL SWEETWATER GRILL & TAVERN represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. ARTICLE 11 ASSIGNABILITY SWEETWATER GRILL & TAVERN shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. ARTICLE 12 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 13 MISCELLANEOUS A. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. B. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. THIN LINE FILM FESTIVAL Agreement — Page 4 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and SWEETWATER GRILL & TAVERN has executed this Agreement through its duly authorized undersigned officer on this the day of 2014. CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY SWEETWATER GRILL & TAVERN BY: .� c KA ZEN MEREDITH WITNESS: EN THIN LINE FILM FESTIVAL Agreement —Page 5 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Economic Development ACM: John Cabrales, Jr. r SUBJECT Consider approval of a resolution allowing Rubber Gloves Rehearsal Studios to be the sole participant allowed to sell alcoholic beverages at the Thin Line Film Festival February 13, 2014, 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 approval. BACKGROUND Thin Line Film Festival, Texas' only documentary film festival, held its inaugural event in September of 2007 and has grown each sequential year. Rubber Gloves Rehearsal Studios has requested to be able to sell alcoholic beverages on city property during the festival on February 13, 2014. This privilege does not extend beyond the date of the THIN LINE FILM FESTIVAL set for the year 2014. RECOMMENDATION Staff recommends approval of the resolution and agreement as submitted, which is consistent with agreements for other events serving alcoholic beverages. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION None Respectfully submitted: - 4,1 Julie Glover Economic Development Program Administrator C:\ Users \106905\AppData \Local \Microsoft \Windows \Temporary Internet Files \COntent.0utl00k\XDOZHF5V \Thin Line Film Festival alcohol sell Rubber Gloves (2).doc RESOLUTION NO. A RESOLUTION ALLOWING RUBBER GLOVES REHEARSAL STUDIOS TO BE THE SOLE PARTICIPANT ALLOWED TO SELL ALCOHOLIC BEVERAGES AT THE THIN LINE FILM FESTIVAL FEBRUARY 13, 2014, 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. WHEREAS, the City of Denton ( "City ") is the owner of the of the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets; and WHEREAS, the City Council finds that it is in the public interest to select only one vendor of alcoholic beverages on February 13, 2014 at the Thin Line Film Festival; and WHEREAS, Rubber Gloves Rehearsal Studios has requested that they be the sole participant allowed to sell alcoholic beverages at this year's Thin Line Film Festival on February 13,2014; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. Rubber Gloves Rehearsal Studios shall be the sole participant allowed to sell alcoholic beverages on City property at the Thin Line Film Festival February 13, 2014, at the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets upon the following conditions: 1. They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; 2. They shall provide the security necessary for the sale of alcoholic beverages; 3. They shall provide general comprehensive liability insurance from a responsible carrier, with the City as an additional insured, in the amount of $500,000.00; 4. They shall provide Liquor /Dram Shop Liability in the amount of $250,000 per occurrence; 5. They agree to indemnify the City of Denton against any liability incident to the selling of alcoholic beverages at the Thin Line Film Festival. SECTION 2. The City Manager or his designee is authorized to execute an agreement in conformity with this Resolution, which shall be substantially in the form of the agreement attached hereto and made a part hereof by reference. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY mm APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY fr C BY: / Users /joshbaish/Downloads/Thin Line Film Festival Alcohol Contract Rubber Gloves- l.docx CITY OF DENTON AGREEMENT WITH RUBBER GLOVES REHEARSAL STUDIOS STATE OF TEXAS COUNTY OF DENTON This Agreement, made thi day of ��LU, , 2014, by and between the City of Denton, a municipal corporation, hereinafter referred t6 as the "CITY' and RUBBER GLOVES REHEARSAL STUDIOS. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE 1 GENERAL The City grants to RUBBER GLOVES REHEARSAL STUDIOS the exclusive privilege to sell alcoholic beverages, subject to the exceptions and conditions hereinafter set forth, for the THIN LINE FILM FESTIVAL on FEBRUARY 13, 2014, to be held on city property located at the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets. This privilege does not extend beyond the date of the THIN LINE FILM FESTIVAL set for the year 2014. ARTICLE 2 SCOPE OF SERVICES RUBBER GLOVES REHEARSAL STUDIOS in order to exercise the privilege to sell alcoholic beverages must perform the following: A. RUBBER GLOVES REHEARSAL STUDIOS shall be solely responsible for the rental and payment for any booth space necessary for the sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. B. RUBBER GLOVES REHEARSAL STUDIOS shall be solely responsible to obtain any temporary license and permit necessary for the selling of alcoholic beverages at the THIN LINE FILM FESTIVAL. C. RUBBER GLOVES REHEARSAL STUDIOS shall be solely responsible for the obtaining and paying for any security necessary for their sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. RUBBER GLOVES REHEARSAL STUDIOS' failure to do any of the above and to show proper proof of compliance shall waive their right to exercise the privilege of selling alcoholic beverages at the THIN LINE FILM FESTIVAL. ARTICLE 3 LOCAL RULES AND REGULATION RUBBER GLOVES REHEARSAL STUDIOS agrees to abide by all municipal, county, state and federal laws, ordinances, rules and regulations and specifically, without limitation, to obtain all necessary and proper licenses, permits and authorizations, and to comply with the requirements of any duly authorized person acting in connection therewith. RUBBER GLOVES REHEARSAL STUDIOS shall pay all taxes, if any, of every nature and description arising out of or in any manner connected with the sale of alcoholic beverages. RUBBER GLOVES REHEARSAL STUDIOS will exercise reasonable care and due diligence in their sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. ARTICLE 4 INDEMNITY AGREEMENT RUBBER GLOVES REHEARSAL STUDIOS shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, losses, and expenses, including but not limited to, court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of RUBBER GLOVES REHEARSAL STUDIOS or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 5 INSURANCE During the performance of the Agreement, RUBBER GLOVES REHEARSAL STUDIOS shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less that $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Liquor /Dram Shop Liability in the amount of $250,000 per occurrence for any event occurring on City -owned property where alcohol will be provided or served. THIN LINE FILM FESTIVAL Agreement — Page 2 C. RUBBER GLOVES REHEARSAL STUDIOS shall furnish insurance certificates or insurance policies at the CITY'S request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without written notice to the CITY and RUBBER GLOVES REHEARSAL STUDIOS. In such event, RUBBER GLOVES REHEARSAL STUDIOS shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE 6 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: RUBBER GLOVES REHEARSAL STUDIOS CITY OF DENTON: Josh Baish City Manager 411 E. Sycamore Street 215 E. McKinney Denton, Texas 76205 Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE 7 ENTIRE AGREEMENT This Agreement, consisting of five (5) pages and 0 exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE 8 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. THIN LINE FILM FESTIVAL Agreement — Page 3 ARTICLE 9 DISCRIMINATION PROHIBITED In performing the services required hereunder, RUBBER GLOVES REHEARSAL STUDIOS shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 10 PERSONNEL RUBBER GLOVES REHEARSAL STUDIOS represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. ARTICLE 11 ASSIGNABILITY RUBBER GLOVES REHEARSAL STUDIOS shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY ARTICLE 12 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 13 MISCELLANEOUS A. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. B. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. THIN LINE FILM FESTIVAL Agreement — Page 4 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and RUBBER GLOVES REHEARSAL STUDIOS has executed this Agreement through its duly authorized undersigned officer on this the day of 12014, CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY C. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY I RUBBER GLOVES REHEARSAL STUDIOS �--� 108H BAISH WITNESS: ffim THIN LINE FILM FESTIVAL Agreement — Page AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Economic Development ACM: John Cabrales, Jr. r SUBJECT Consider approval of a resolution allowing Dan's Silverleaf to be the sole participant allowed to sell alcoholic beverages at the Thin Line Film Festival, February 14, 2014 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 approval. BACKGROUND Thin Line Film Festival, Texas' only documentary film festival, held its inaugural event in September of 2007 and has grown each sequential year. Dan's Silverleaf has requested to be able to sell alcoholic beverages on city property during the festival on February 14, 2014. This privilege does not extend beyond the date of the THIN LINE FILM FESTIVAL set for the year 2014. RECOMMENDATION Staff recommends approval of the resolution and agreement as submitted, which is consistent with agreements for other events serving alcoholic beverages. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION None Respectfully submitted: Julie Glover Economic Development Program Administrator C:\ Users \106905\AppData \Local \Microsoft \Windows \Temporary Internet Files \Content.Outlook \XDOZHFSV\Thin Line Film Festival alcohol sell Dan's Silverleaf.doc RESOLUTION NO. A RESOLUTION ALLOWING DAN'S SILVERLEAF TO BE THE SOLE PARTICIPANT ALLOWED TO SELL ALCOHOLIC BEVERAGES AT THE THIN LINE FILM FESTIVAL FEBRUARY 14, 2014, 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. WHEREAS, the City of Denton ( "City ") is the owner of the of the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets; and WHEREAS, the City Council finds that it is in the public interest to select only one vendor of alcoholic beverages on February 14, 2014 at the Thin Line Film Festival; and WHEREAS, Dan's Silverleaf has requested that they be the sole participant allowed to sell alcoholic beverages at this year's Thin Line Film Festival on February 14, 2014; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. Dan's Silverleaf shall be the sole participant allowed to sell alcoholic beverages on City property at the Thin Line Film Festival February 14, 2014, at the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets upon the following conditions: 1. They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; 2. They shall provide the security necessary for the sale of alcoholic beverages; 3. They shall provide general comprehensive liability insurance from a responsible carrier, with the City as an additional insured, in the amount of $500,000.00; 4. They shall provide Liquor /Dram Shop Liability in the amount of $250,000 per occurrence; 5. They agree to indemnify the City of Denton against any liability incident to the selling of alcoholic beverages at the Thin Line Film Festival. SECTION 2. The City Manager or his designee is authorized to execute an agreement in conformity with this Resolution, which shall be substantially in the form of the agreement attached hereto and made a part hereof by reference. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: r! C\Documents and Settings\danTocal Settings\Temporary Internet Files \Content.OutlookUZPQXU4G \Thin Line Film Festival Alcohol Contract Dan's Silverleaf.doe CITY OF DENTON AGREEMENT WITH DAN'S SILVERLEAF STATE OF TEXAS elsariLs]0N7gelr�]�� This Agreement, made this /7 day of 4 -, 2014, by and between the City of Denton, a municipal corporation, hereinafter referred to as the "CITY" and DAN'S SILVERLEAF. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTIC'I .F. 1 GENERAL The City grants to DAN'S SILVERLEAF the exclusive privilege to sell alcoholic beverages, subject to the exceptions and conditions hereinafter set forth, for the THIN LINE FILM FESTIVAL on FEBRUARY 14, 2014, to be held on city property located in the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets. This privilege does not extend beyond the date of the THIN LINE FILM FESTIVAL set for the year 2014. ARTICLE 2 SCOPE OF SERVICES DAN'S SILVERLEAF in order to exercise the privilege to sell alcoholic beverages must perform the following: A. DAN'S SILVERLEAF shall be solely responsible for the rental and payment for any booth space necessary for the sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. B. DAN'S SILVERLEAF shall be solely responsible to obtain any temporary license and permit necessary for the selling of alcoholic beverages at the THIN LINE FILM FESTIVAL. C. DAN'S SILVERLEAF shall be solely responsible for the obtaining and paying for any security necessary for their sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. DAN'S SILVERLEAF'S failure to do any of the above and to show proper proof of compliance shall waive their right to exercise the privilege of selling alcoholic beverages at the THIN LINE FILM FESTIVAL. ARTICLE 3 LOCAL RULES AND REGULATION DAN'S SILVERLEAF agrees to abide by all municipal, county, state and federal laws, ordinances, rules and regulations and specifically, without limitation, to obtain all necessary and proper licenses, permits and authorizations, and to comply with the requirements of any duly authorized person acting in connection therewith. DAN'S SILVERLEAF shall pay all taxes, if any, of every nature and description arising out of or in any manner connected with the sale of alcoholic beverages. DAN'S SILVERLEAF will exercise reasonable care and due diligence in their sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. ARTICLE 4 INDEMNITY AGREEMENT DAN'S SILVERLEAF shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, losses, and expenses, including but not limited to, court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of DAN'S SILVERLEAF or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 5 INSURANCE During the performance of the Agreement, DAN'S SILVERLEAF shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less that $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Liquor /Dram Shop Liability in the amount of $250,000 per occurrence for any event occurring on City -owned property where alcohol will be provided or served. THIN LINE FILM FESTIVAL Agreement — Page 2 C. DAN'S SILVERLEAF shall furnish insurance certificates or insurance policies at the CITY'S request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without written notice to the CITY and DAN'S SILVERLEAF. In such event, DAN'S SILVERLEAF shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE 6 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: DAN'S SILVERLEAF Dan Mojica 103 Industrial Street Denton, Texas 76201 CITY OF DENTON: City Manager 215 E. McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE 7 ENTIRE AGREEMENT This Agreement, consisting of five (5) pages and 0 exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE S SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. THIN LINE FILM FESTIVAL Agreement — Page 3 ARTICLE 9 DISCRIMINATION PROHIBITED In performing the services required hereunder, DAN'S SILVERLEAF shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 10 PERSONNEL DAN'S SILVERLEAF represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. ARTICLE 11 ASSIGNABILITY DAN'S SILVERLEAF shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. ARTICLE 12 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 13 MISCELLANEOUS A. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. B. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. THIN LINE FILM FESTIVAL Agreement — Page 4 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and DAN'S SILVERLEAF has executed this Agreement through its duly authorized undersigned officer on this the day of .2014. CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY .' APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY C• MR C WITNESS: FICIN THIN LINE FILM FESTIVAL Agreement — Page 5 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Economic Development t ACM: John Cabrales, Jr. Lt SUBJECT Consider approval of a resolution allowing Bostick, Banks, LLC DBA The LABB to be the sole participant allowed to sell alcoholic beverages at the Thin Line Film Festival, February 15, 2014 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 approval. BACKGROUND Thin Line Film Festival, Texas' only documentary film festival, held its inaugural event in September of 2007 and has grown each sequential year. Bostick, Banks, LLC DBA The LABB has requested to be able to sell alcoholic beverages on city property during the festival on February 15, 2014. This privilege does not extend beyond the date of the THIN LINE FILM FESTIVAL set for the year 2014. RECOMMENDATION Staff recommends approval of the resolution and agreement as submitted, which is consistent with agreements for other events serving alcoholic beverages. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION None Respectfully submitted: Julie Glover Economic Development Program Administrator C:\ Users \106905\AppData \Local \Microsoft \Windows \Temporary Internet Files \Content .Outlook \XDOZHFSV\Thin Line Film Festival alcohol sell The Labb.doc RESOLUTION NO. A RESOLUTION ALLOWING THE LABB TO BE THE SOLE PARTICIPANT ALLOWED TO SELL ALCOHOLIC BEVERAGES AT THE THIN LINE FILM FESTIVAL FEBRUARY 15, 2014, 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. WHEREAS, the City of Denton ( "City ") is the owner of the of the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets; and WHEREAS, the City Council finds that it is in the public interest to select only one vendor of alcoholic beverages on February 15, 2014 at the Thin Line Film Festival; and WHEREAS, The Labb has requested that they be the sole participant allowed to sell alcoholic beverages at this year's Thin Line Film Festival on February 15, 2014; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The Labb shall be the sole participant allowed to sell alcoholic beverages on City property at the Thin Line Film Festival February 15, 2014, at the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets upon the following conditions: 1. They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; 2. They shall provide the security necessary for the sale of alcoholic beverages; 3. They shall provide general comprehensive liability insurance from a responsible carrier, with the City as an additional insured, in the amount of $500,000.00; 4. They shall provide Liquor /Dram Shop Liability in the amount of $250,000 per occurrence; 5. They agree to indemnify the City of Denton against any liability incident to the selling of alcoholic beverages at the Thin Line Film Festival. SECTION 2. The City Manager or his designee is authorized to execute an agreement in conformity with this Resolution, which shall be substantially in the form of the agreement attached hereto and made a part hereof by reference. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. ATTEST: JENNIFER WALTERS, CITY SECRETARY C' APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY s'" MARK A. BURROUGHS, MAYOR C: \UsersU06905\AppData \Local \Microsoft \Windows \Temporary Internet Files \Content.Outlook \9XRKIBYS \Thin Line Film Festival Alcohol Contract The Labb.doc CITY OF DENTON AGREEMENT WITH THE LABB STATE OF TEXAS COUNTY OF DENTON This Agreement, made this 0 A day of ( w) , 2014, by and between the City of Denton, a municipal corporation, hereinafter referred to as the "CITY" and BOSTICK, BANKS, LLC DBA THE LABB ( "THE LABB "). WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE 1 GENERAL The City grants to THE LABB the exclusive privilege to sell alcoholic beverages, subject to the exceptions and conditions hereinafter set forth, for the THIN LINE FILM FESTIVAL on FEBRUARY 15, 2014, to be held on city property located in the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets. This privilege does not extend beyond the date of the THIN LINE FILM FESTIVAL set for the year 2014. ARTICLE 2 SCOPE OF SERVICES THE LABB in order to exercise the privilege to sell alcoholic beverages must perform the following: A. THE LABB shall be solely responsible for the rental and payment for any booth space necessary for the sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. B. THE LABB shall be solely responsible to obtain any temporary license and permit necessary for the selling of alcoholic beverages at the THIN LINE FILM FESTIVAL. C. THE LABB shall be solely responsible for the obtaining and paying for any security necessary for their sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. THE LABB'S failure to do any of the above and to show proper proof of compliance shall waive their right to exercise the privilege of selling alcoholic beverages at the THIN LINE FILM FESTIVAL. ARTICLE 3 LOCAL RULES AND REGULATION THE LABB agrees to abide by all municipal, county, state and federal laws, ordinances, rules and regulations and specifically, without limitation, to obtain all necessary and proper licenses, permits and authorizations, and to comply with the requirements of any duly authorized person acting in connection therewith. THE LABB shall pay all taxes, if any, of every nature and description arising out of or in any manner connected with the sale of alcoholic beverages. THE LABB will exercise reasonable care and due diligence in their sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. ARTICLE 4 INDEMNITY AGREEMENT THE LABB shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, losses, and expenses, including but not limited to, court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of THE LABB or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 5 INSURANCE During the performance of the Agreement, THE LABB shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less that $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Liquor/Dram Shop Liability in the amount of $250,000 per occurrence for any event occurring on City -owned property where alcohol will be provided or served. THIN LINE FILM FESTIVAL Agreement — Page 2 C. THE LABB Shall furnish insurance certificates or insurance policies at the CITY'S request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without written notice to the CITY and THE LABB. In such event, THE LABB shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE 6 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: BOSTICK, BANKS, LLC dba THE LABB CITY OF DENTON: Andy Bostick City Manager 218 W. Oak Street 215 E. McKinney Denton, Texas 76201 Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE 7 ENTIRE AGREEMENT This Agreement, consisting of five (5) pages and 0 exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE 8 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. THIN LINE FILM FESTIVAL Agreement — Page 3 ARTICLE 9 DISCRIMINATION PROHIBITED In performing the services required hereunder, THE LABB shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 10 PERSONNEL THE LABB represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. ARTICLE 11 ASSIGNABILITY THE LABB shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. ARTICLE 12 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 13 MISCELLANEOUS A. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. B. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. THIN LINE FILM FESTIVAL Agreement — Page 4 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and THE LABB has executed this Agreement through its duly authorized undersigned officer on this the day of , 2014. CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY mm APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY I: BOSTICK, BANKS, LLC dba THE LABB BY: ANDY BOSTICK WITNESS: THIN LINE FILM FESTIVAL Agreement— Page 5 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Economic Development ACM: John Cabrales, Jr. SUBJECT Consider approval of a resolution allowing JAG Private Club DBA Dusty's Bar & Grill to be the sole participant allowed to sell alcoholic beverages at the Thin Line Film Festival, February 16, 2014 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 approval. BACKGROUND Thin Line Film Festival, Texas' only documentary film festival, held its inaugural event in September of 2007 and has grown each sequential year. JAG Private Club DBA Dusty's Bar & Grill has requested to be able to sell alcoholic beverages on city property during the festival on February 16, 2014. This privilege does not extend beyond the date of the THIN LINE FILM FESTIVAL set for the year 2014. RECOMMENDATION Staff recommends approval of the resolution and agreement as submitted, which is consistent with agreements for other events serving alcoholic beverages. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION None Respectfully submitted: Julie Glover Economic Development Program Administrator C:\ Users \106905WppData \Local \Microsoft \Windows \Temporary Internet Files \Content .Outlook \XDOZI- IFSV\Thin Line Film Festival alcohol sell Dusty's.doc RESOLUTION NO. A RESOLUTION ALLOWING JAG PRIVATE CLUB DBA DUSTY'S BAR & GRILL ( "DUSTY'S ") TO BE THE SOLE PARTICIPANT ALLOWED TO SELL ALCOHOLIC BEVERAGES AT THE THIN LINE FILM FESTIVAL FEBRUARY 16, 2014, 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. WHEREAS, the City of Denton ( "City ") is the owner of the of the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets; and WHEREAS, the City Council finds that it is in the public interest to select only one vendor of alcoholic beverages on February 16, 2014 at the Thin Line Film Festival; and WHEREAS, Dusty's has requested that they be the sole participant allowed to sell alcoholic beverages at this year's Thin Line Film Festival on February 16, 2014; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. Dusty's shall be the sole participant allowed to sell alcoholic beverages on City property at the Thin Line Film Festival February 16, 2014, at the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets upon the following conditions: 1. They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; 2. They shall provide the security necessary for the sale of alcoholic beverages; 3. They shall provide general comprehensive liability insurance from a responsible carrier, with the City as an additional insured, in the amount of $500,000.00; 4. They shall provide Liquor /Dram Shop Liability in the amount of $250,000 per occurrence; 5. They agree to indemnify the City of Denton against any liability incident to the selling of alcoholic beverages at the Thin Line Film Festival. SECTION 2. The City Manager or his designee is authorized to execute an agreement in conformity with this Resolution, which shall be substantially in the form of the agreement attached hereto and made a part hereof by reference. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY -1 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: F' C: \UsersUen \Downloads \Thin_Line_Film_ Festival _Alcohol_Contract_Dusty's (1).doc CITY OF DENTON AGREEMENT WITH JAG PRIVATE CLUB, INC dba DUSTY'S BAR & GRILL STATE OF TEXAS COUNTY OF DENTON This Agreement, made this I J� day of JOM , 2014, by and between the City f Denton, a municipal corporation, hereinafter referred to as the "CITY" and JAG Y P � PRIVATE CLUB, INC. DBA DUSTY'S BAR & GRILL ( "DUSTY'S "). WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I GENERAL The City grants to DUSTY'S the exclusive privilege to sell alcoholic beverages, subject to the exceptions and conditions hereinafter set forth, for the THIN LINE FILM FESTIVAL on FEBRUARY 16, 2014, to be held on city property located in the parking area south of 300 E. McKinney Street, bordered by E. Oak and Oakland Streets. This privilege does not extend beyond the date of the THIN LINE FILM FESTIVAL set for the year 2014. ARTICLE 2 SCOPE OF SERVICES DUSTY'S in order to exercise the privilege to sell alcoholic beverages must perform the following: A. DUSTY'S shall be solely responsible for the rental and payment for any booth space necessary for the sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. B. DUSTY'S shall be solely responsible to obtain any temporary license and permit necessary for the selling of alcoholic beverages at the THIN LINE FILM FESTIVAL. C. DUSTY'S shall be solely responsible for the obtaining and paying for any security necessary for their sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. DUSTY'S failure to do any of the above and to show proper proof of compliance shall waive their right to exercise the privilege of selling alcoholic beverages at the THIN LINE FILM FESTIVAL. ARTICLE 3 LOCAL RULES AND REGULATION DUSTY'S agrees to abide by all municipal, county, state and federal laws, ordinances, rules and regulations and specifically, without limitation, to obtain all necessary and proper licenses, permits and authorizations, and to comply with the requirements of any duly authorized person acting in connection therewith. DUSTY'S shall pay all taxes, if any, of every nature and description arising out of or in any manner connected with the sale of alcoholic beverages. DUSTY'S will exercise reasonable care and due diligence in their sale of alcoholic beverages at the THIN LINE FILM FESTIVAL. ARTICLE 4 INDEMNITY AGREEMENT DUSTY'S shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, losses, and expenses, including but not limited to, court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of DUSTY'S or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 5 INSURANCE During the performance of the Agreement, DUSTY'S shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less that $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Liquor /Dram Shop Liability in the amount of $250,000 per occurrence for any event occurring on City -owned property where alcohol will be provided or served. THIN LINE FILM FESTIVAL Agreement — Page 2 C. DUSTY'S shall furnish insurance certificates or insurance policies at the CITY'S request to evidence such coverages. The insurance policies shall name the CITY as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without written notice to the CITY and DUSTY'S. In such event, DUSTY'S shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE 6 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: DUSTY'S Jennifer Gibb 119 S. Elm Street Denton, Texas 76201 CITY OF DENTON: City Manager 215 E. McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE 7 ENTIRE AGREEMENT This Agreement, consisting of five (5) pages and 0 exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE 8 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. THIN LINE FILM FESTIVAL Agreement — Page 3 ARTICLE 9 DISCRIMINATION PROHIBITED In performing the services required hereunder, DUSTY'S shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 10 PERSONNEL DUSTY'S represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. ARTICLE 11 ASSIGNABILITY DUSTY'S shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. ARTICLE 12 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 13 MISCELLANEOUS A. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. B. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. THIN LINE FILM FESTIVAL Agreement — Page 4 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and DUSTY'S has executed this Agreement through its duly authorized undersigned officer on this the day of , 2014. CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY t APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY JAG PRIVA`S'E CLUK INC. dba DUSTY'S mm WITNESS: BY: G7/Vll� THIN LINE FILM FESTIVAL Agreement — Page 5 JENN Coi,�a,eu..0 Agei,Aa U AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Denton Municipal Electric UTILITIES ACM: Howard Martin, Utilities, 349 -8232 SUBJECT 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 as Exhibit "A ", by and between Nettie Jane Nicldess (the "Owner"), and the City of Denton (the "City "), regarding the sale by Owner and purchase by the City of a fee interest in land consisting of 1.127 acres being situated in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, located generally in the 2500 block of East McKinney Street, for the public use of expansion, constriction, maintenance, operation, and improvement of electric transmission and distribution lines, facilities, and strictures, the "Project", for the purchase price of Sixteen Thousand Six Hundred Dollars and 00 /100 ($16,600.00); as prescribed in the Contract of Sale; 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; and providing an effective date. (69kV Transmission Line Re -build Project) BACKGROUND In accord with the current 69kV Transmission Line Re -build project initiative, staff is undertaking the identification of the additional land rights necessary to accommodate the constriction and operation of the improved electric transmission and distribution system. In respect to the tract owned by Nettie Jane Nicldess, the project requires the fee simple acquisition of a 1.127 acre tract of land, to accommodate the electric utilities and electric substation infrastructure. The contemplated land rights to be acquired represent eight percent (8 %) of fee title to the 1.127 acre tract required by the Project. Pyles Whatley Corporation provided a real estate appraisal report in regard to the subject property tract with a finding of $146,493.00 for 100% of the fee title interest. The Offer to purchase the Property Interests was indicative of Ms. Nicldess undivided fee ownership percentage ($12,207.75). The Seller has engaged in formal negotiation dialogue with staff, and has submitted a counter offer to purchase their undivided fee ownership interest for $16,600.00. Approval of the ordinance under consideration authorizes staff to proceed to closing the purchase transaction with the Seller, as administrative settlement of the matter. OPTIONS 1. Recommend approval of the proposed Ordinance. 2. Recommend to 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. September 9, 2013 PUB Executive Session and Consent Agenda September 17, 2013 City Council Executive Session and Consent Agenda January 27, 2014 PUB Executive Session and Consent Agenda FISCAL INFORMATION The overall 69kV Transmission Line Rebuild project is being funded by issuing General Obligation Bonds which will be paid by Transmission Revenue received from all other electric utilities who are members of the Electric Reliability Council of Texas (ERCOT). The purchase offer price of $16,600.00 plus closing costs as prescribed in the Agreement are to be funded through these funding sources. BID INFORMATION Not applicable EXHIBITS 1. Location Map Respectfully submitted, 2. Ordinance Prepared by, Pamela England Real Estate Specialist Phillip Williams General Manager Electric Administration Denton Municipal Electric EXHIBIT 1 LOCATION MAP N Denton Municipal Electric Proposed Acquisition Parcel 4 - 69kV Transmission Line Project 1.127 Acres 150 0 75 150 300 FEET ice% 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 NETTIE JANE NICKLESS (THE "OWNER "), AND THE CITY OF DENTON (THE "CITY "), REGARDING THE SALE BY OWNER AND PURCHASE BY THE CITY OF A FEE INTEREST IN LAND CONSISTING OF 1.127 ACRES BEING SITUATED IN THE T.M. DOWNING SURVEY, ABSTRACT NO. 346, CITY OF DENTON, DENTON COUNTY, TEXAS, LOCATED GENERALLY IN THE 2500 BLOCK OF EAST MCKINNEY STREET, FOR THE PUBLIC USE OF EXPANSION, CONSTRUCTION, MAINTENANCE, OPERATION, AND IMPROVEMENT OF ELECTRIC TRANSMISSION AND DISTRIBUTION LINES, FACILITIES, AND STRUCTURES, THE "PROJECT ", FOR THE PURCHASE PRICE OF SIXTEEN THOUSAND SIX HUNDRED DOLLARS AND 00 /100 ($16,600.00); AS PRESCRIBED IN THE CONTRACT OF SALE; 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; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized (a) to execute for and on behalf of the City (i) the Contract of Sale, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A" with a purchase price of SIXTEEN THOUSAND SIX HUNDRED DOLLARS AND 00 /100 ($16,600.00), as prescribed in the Contract of Sale, and (ii) any other documents necessary for closing the transaction contemplated by the Contract of Sale; and (b) to make expenditures in accordance with the terms of the Contract of Sale. SECTION 2. 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 holdings 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 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY La APPROVED AS TO LEGAL FORM: JOHN E. KELSEY KELSEY, KELSEY& HICKEY, P.L.L.C. LI-A 2 STATE OF TEXAS § COUNTY OF DENTON § CONTRACT OF SALE NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. d' This Contract of Sale (the "Contract ") is made this ; ��day of ' " , 2013, effective as of the date of execution hereof by Seller, as deft herein (the "Effective Date "), by and between Nettie Jane Nickless (referred to her ' her&fi as "Seller ") and the City of Denton, Texas, a Home Rule Municipal Corporation of Denton County, Texas (referred to herein as "Buyer "). RECITALS WHEREAS, Seller owns an undivided interest in that certain tract of land being more particularly described and depicted on Exhibit "A ", attached hereto and made a part hereof for all purposes, being located in Denton County, Texas (the "Land "); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances to the Land (collectively, the "Property"). ARTICLE I SALE OF PROPERTY 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 agrees to purchase from Seller, the Property. Seller, subject to the limitation of such reservation made herein, shall reserve, for herself, her heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Seller, her heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of sarne. As used herein, the term "minerals" shall include oil, gas and all associated 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, deplete or destroy 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 parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in deed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth, ARTICLE It PURCY.&SE-E-1-ILL43011, 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of PWdVe=Xh Hm ($d%� (the AJC " "Purchase �Uyj j(4" one Tko e Price). , &A iA +( '450 w , 2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No/1'00 Dollars ($,1,000.00), as Earnest Money (herein so called) with Title Resources, LLC, 525 South Loop 288 , Suite 125, Denton, Texas, 76205, (the "'Title Company"), as escrow agent, within fourteen (l 4) calendar days of the Effective Date hereof All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract, if the purchase contemplated hereunder is consummated in accordance with the terms and the provisions 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 interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. 2.03 Independent Contract Consideration. Within fourteen (14) calendar days after the Effective Date, Buyer shall deliver to the Title Company, payable to and for the benefit of Seller, a check in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in Contract of Sale Page 2 of 21 addition to, and independent of any other consideration or payment provided in this Contract, is non - refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment ") for the Property, issued by Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights -of -way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception "). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions (the "Exception Documents "), including those described in the Title Commitment as exceptions to which the conveyance will be subject and/or which are required to be released or cured at or prior to Closing. 3.02 Survey. Within thirty (30) calendar days after the Effective Date, Seller shall cause to be prepared at Buyer's expense, a current on the ground survey of the Property (the "Survey "). The contents of the Survey shall be prepared by a surveyor selected by Buyer and shall include the matters prescribed by Buyer, which may include but not be limited to, a depiction of the location of all roads, streets, easements and rights of way, both on and adjoining the Property, water courses, 100 year flood plain, fences and improvements and structures of any kind. The Survey shall describe the size of the Property, in acres, and contain a metes and bounds description thereof. Seller shall furnish or cause to be furnished any affidavits, certificates, assurances, and/or resolutions as required by the Title Company in order to amend the survey exception as required by Section 3.05 below. The description of the Property as set forth in the Survey, at the Buyer's election, shall be used to describe the Property in the deed to convey the Property to Buyer and shall be the description set forth in the Title Policy. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period ") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception Documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ( "Objections "), if any. All items set forth in the Schedule C of Contract of Sale Page 3 of 21 the Title Commitment, and all other items set forth in the Title Commitment which are required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or Exceptions that have been voluntarily placed on or against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day period, and if Buyer does not agree in writing to an extension of that period, said extension to not exceed an additional thirty (30) calendar days, then Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to Closing, in which event those Objections shall become Permitted Exceptions (herein so called), or (b) terminating this Contract by notice in writing prior to Closing and receiving back the Earnest Money, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.04.A Additional Title Commitment. Due to the fact that the effective period of the Title Commitment shall expire prior to Closing, Seller shall cause to be furnished to Buyer, no earlier than ninety one (91) calendar days after the Effective Date and no later than one hundred ten (110) calendar days after the Effective Date, a Title Commitment ( "Updated Commitment "), in the form of the Title Commitment prescribed by Section 3.01, above. Buyer shall have fifteen (15) calendar days to review and provide Objections, if any, to the items in the Updated Commitment in the same manner as prescribed by Section 3.03 related to the Title Commitment. All time periods related to review and cure of the Objections, waiver of uncured Objections and termination of this Contract, as set forth in Article III, above, shall be applicable to the Objections by Buyer to the Updated Commitment, if any, and Closing shall be so extended to accommodate such review and cure period. 3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a standard Texas Owner's Policy of Title Insurance ( "Title Policy ") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended or deleted as follows: (a) survey exception must be amended if required by Buyer to read "shortages in Contract of Sale Page 4 of 21 area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (b) no exception will be permitted for "visible and apparent easements" or words to that effect (although reference may be made to any specific easement or use shown on the Survey, if a Permitted Exception); (c) no exception will be permitted for "rights of parties in possession "; (d) no liens will be shown on Schedule B. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exception it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending sixty (60) calendar days thereafter (the "Absolute Review Period "), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will provide to Seller copies of (i) any and all non - confidential and non - privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance 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 made to another date, Contract of Sale Page 5 of 21 that: (a) The descriptive information concerning the Property set forth in this Contract is complete, accurate, true and correct. (b) There are no adverse or other parties in possession of the Property or any part thereof, and no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Article V, Section 5.02(a). (c) The Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions. (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (f) The Seller has disclosed to Buyer in writing of any and all facts and circumstances relating to the physical condition of the Property that may materially and adversely affect the Property and operation or intended operation thereof, or any portion thereof, of which Seller has knowledge. (g) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject to no such liens. (h) The Seller shall convey the Property free and clear of all debts, liens and encumbrances. (i) Seller has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract. (j) To the best of Seller's knowledge, there has not occurred the disposal or release of any Hazardous Substance to, on or from the Property. As used in this Contract, "Hazardous Substance" means and includes all hazardous and toxic substances, waste or materials, chemicals, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos- Contract of Sale Page 6 of 21 containing material, petroleum products and raw 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, "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean-up of Hazardous Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as amended, Toxic Substance Control Act, 15 U.S.C. 2601, et seq., and state superlien and environmental clean-up statutes and all rules and regulations presently or hereafter promulgated under or related to said statutes, as amended. (k) All Leases, as defined in Article V, Section 5.02(a), shall have expired or otherwise terminated and any and all tenants or parties occupying the Property pursuant to the Leases shall have permanently abandoned and vacated the Property on or before the date of Closing. (1) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (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 lease agreements and/or occupancy agreements and/or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases "). (ii) All environmental audits, soil tests and engineering and feasibility reports, including any and all modifications, supplements and amendments thereto, with respect to the Property that Seller possesses or has the right to receive. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect Contract of Sale Page 7 of 21 to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing concerning 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 agreements of Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, grant or permit to be attached or perfected, any lien, encumbrance, or charge thereon. (c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property under any written or oral contracts arising or entered into prior to Closing. 5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Special Warranty Deed, as described in Article VII, Section 7.02(x). ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) Seller cures or Buyer waives in writing, within the time periods specified in Article III, all of Buyer's objections made in accordance with Article M. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except where 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 Contract of Sale Page 8 of 21 initiated by an entity other than Buyer, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written request from Buyer, promptly issue the instructions necessary to instruct 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 further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established with the Title Company, as escrowee. The Closing Date (herein sometimes called), shall be one hundred and eighty (180) calendar days after the Effective Date, unless otherwise mutually agreed upon by Buyer and Seller. 7.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the Title Company, at the expense of the party designated herein, the following items: (i) The Title Policy, in the form specified in Article III, Section 3.05; (ii) The Special Warranty Deed, substantially in the form as attached hereto as Exhibit `B ", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; (iii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. Contract of Sale Page 9 of 21 (b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the following items: (i) The sum required by Article II, Section 2.01, less the Earnest Money and interest earned thereon, in the form of a check or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between Seller and Buyer with respect to the Property: (a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at Closing shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. As soon as the amount of taxes levied against the Property for the calendar year in which Closing shall occur is known, Seller and Buyer shall readjust in cash the amount of taxes to be paid by each party with the result that Seller shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the date of Closing) and Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 7.05 Costs of Closing. 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 identified herein as being the responsibility of Seller. Buyer is responsible for paying fees, costs and expenses identified herein as being the responsibility of Buyer. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract are not identified herein, such costs or expenses shall be allocated between the parties in the customary manner for closings of real property similar to the Property in Denton County, Texas. Contract of Sale Page 10 of 21 ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or (iii) Seller fails to deliver at Closing, the items specified in Article VII, Section 7.02(a) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's sole and exclusive remedies for the default, may, at Buyer's sole option, do any of the following: (i) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and Seller shall, promptly on written request from Buyer, execute and deliver any documents necessary to cause the Title Company to return to Buyer the Earnest Money; (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment, whereupon Buyer shall waive title objections, if any, and accept such title without reduction in Purchase Price on account of title defects and shall 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, contract or otherwise. 8.02 Buyer's Default and Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for Contract of Sale Page 11 of 21 any reason other than a default by Seller under this Contract or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Seller's Remedy. 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 one of the following: (i) Terminate this Contract by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company to return to Seller the Earnest Money; or (ii) Enforce specific performance of this Contract against Buyer. ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, delivered, unless expressly provided otherwise in this Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be deemed to be delivered, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Nettie Jane Nickless Telecopy Z� / 3 14 Copies to: For Seller: Telecopy: BUYER: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349 -8951 For Buyer: John E. Kelsey, Attorney at Law Kelsey, Kelsey & Hickey, PLLC P.O. Box 918 Denton, Texas 76202 Telecopy: (940) 387 -9553 Contract of Sale Page 12 of 21 9.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN DENTON COUNTY, TEXAS. 9.03 Entirety 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 Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Denton County, Texas, imparting notice of this Contract to the public. 9.05 Risk of Loss. If any damage or destruction to the Property shall occur prior to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or party other than Buyer that might result in the taking of any portion of the Property, Buyer may, at Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to Buyer; or (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive any (i) in the case of damage or destruction, all insurance proceeds; and (ii) in the case of eminent domain, proceeds paid for the Property related to the eminent domain proceedings. Buyer shall have a period of up to ten (10) calendar days after receipt of written notification from Seller on the final settlement of all condemnation proceedings or insurance claims related to damage or destruction of any improvement 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 and to any and all insurance proceeds or condemnation awards which may be payable to Seller on account of such event. In the event Buyer elects to close upon this Contract after final settlement, as described above, Closing shall be held five (5) business days after such final settlement. 9.06 Further Assurances. In addition to the acts and deeds recited in this Contract and contemplated to be performed, executed and/or delivered by Seller and Buyer, Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed Contract of Sale Page 13 of 21 and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article IX, Section 9.06 shall survive Closing. 9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 9.09 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract, including without limitation, adjustment of the Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of Denton, Texas, to Frank Payne, P.E., City Engineer of Buyer, or his designee. 9.10 Contract Execution. This Contract of Sale may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. 9.11 Business Days. If the Closing Date or the day of performance required or permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then the Closing Date or the date of such performance, as the case may be, shall be the next following regular business day. 9.12 Relocation. Relocation advisory services and relocation financial assistance, if applicable pursuant to Ordinance No. 2012 -073 (the "Relocation Ordinance "), shall be administered as provided by the Relocation Ordinance, aside and apart from the transaction contemplated by this Contract. SELLER: Nettie Jane N' kless Executed by Seller on the 227 day of !,) Lam- w , 2013. Contract of Sale Page 14 of 21 BUYER: By: GEORGE C. CAMPBELL, CITY MANAGER ,r Executed by Buyer on the day of � ��� �� "'�' 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: �7 APPROVED AS TO LEGAL FORM: JOHN E. KELSEY, KELSEY, KELSEY & HICKEY, PLLC B Contract of Sale Page 15 of 21 RECEIPT OF AGREEMENT BY TITLE COMPANY 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 Contract and to perform its duties pursuant to the provisions of this Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Title Resources, LLC 525 South Loop 288, Suite 125 Denton, Texas 76205 Telephone: (940) 381 -1006 Telecopy: (940) 898 -0121 Printed Name: Title: Contract receipt date: 2013 Contract of Sale Page 16 of 21 €K 11 �1 a � j ajI 1 6 �G Y i 3 i F l !XHIBIT °A° E a N E <�n < MO A Z O1 w murmsl "W 351.W 7 U 1 iy O Sri W pnfls� �; i Ow OE - 6E pE - OC - OFIE 44 — r s a-rv5r i 301.SS } a I < �.N Ciy I ro � as rr Oki tv It gg i_ lie 2 @ULi fill IRN- Cr1€ tat I € 3E 4t V� _a qI I xz. �• 3 > r 4 se s �o $r a'+ M^ ^a �R was iF €K 11 �1 a � j ajI 1 6 �G Y i 3 i F l !XHIBIT °A° E a N E <�n < MO A Z O1 w murmsl "W 351.W 7 U 1 iy O Sri W pnfls� �; i Ow OE - 6E pE - OC - OFIE 44 — r s a-rv5r i 301.SS } a I < �.N Ciy I ro � as rr Oki tv It gg i_ lie 2 @ULi fill IRN- Cr1€ tat I € 3E 4t V� _a qI I xz. EXHIBIT "B" to Contract of Sale NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER GENERAL WARRANTY DEED STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS That Nettie Jane Nickless, herein called "Grantor ", for and in consideration of the sum of TEN AND N01100 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 "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and 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 of Grantor's right, title and interest in and to the real property in Denton County, Texas being particularly described and depicted on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property"). Grantor, subject to the limitation of such reservation made herein, reserves, for herself, her heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, her heirs, devisees, Contract of Sale Page 18 of 21 successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated 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, deplete or destroy 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 parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. This conveyance is subject to the following: (All of those Exceptions from Coverage found on Schedule B of the Owners Title Policy to which referenced is hereby made for all purposes and incorporated by reference as is fully set forth herein.) TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and Contract of Sale Page 19 of 21 assigns to WARRANT AND FOREVER DEFEND all and singular Grantor's undivided right, title and interest in the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty. EXECUTED the day of _,2013 Nettie Jane Nickless ACKNOWLEDGMENT THE STATE OF § COUNTY OF § This instrument was acknowledged before me on , 2013 by Nettie Jane Nickless. Notary Public, State of Texas My commission expires: Upon Filing Return To: Send Tax Billing Statements To: The City of Denton - Engineering The City of Denton Attn: Paul Williamson Attn: Finance Department 901 -A Texas Street 215 East McKinney Street Denton, TX 76209 Denton, Texas 76201 Contract of Sale Page 20 of 21 r` 11. !, [lilt S e s 8 %SIBIT ®A® _ H wM, Jill a 6 0 a A z z OJ --1 m <m s Ila apso v rosy : %•� t �. r "a�• - - - - -,..- - ----x- xy - x °g���3�gg 7 N ch sss R N e = f m �. o s%o M c+ i 'y lzr gz p. a u O y 2 N • ti } .° tis trj 21 swr =i ��j 6 OP ^ fit a s;�0 •, Y T a €3 - -7t7—, IT — ONE — ONE ° ONE UK 04C - - s =mt Ir- x"' S00WM -E 30135' — � I 0 r` 11. !, [lilt S e s 8 %SIBIT ®A® _ H wM, Jill a 6 0 a A z z OJ --1 m <m Ila apso v rosy : %•� DE fit 5 <st kill IR if R�E F � �1s$ Ja i 'z it C. CR cn a g tO IL € € �. N00°33'SI'W 351.80' "a�• - - - - -,..- - ----x- xy - x 7 N ch ° �� a N e = f m �. o s%o M c+ i 'y lzr gz p. a u O y 2 N • ti } .° tis trj swr =i ��j 6 OP ^ a s;�0 •, Y T a M -7t7—, — ONE — ONE ° ONE UK 04C — ONE ®� s =mt Ir- x"' S00WM -E 30135' — � I 0 i� Saar 0 DE fit 5 <st kill IR if R�E F � �1s$ Ja i 'z it C. CR cn a g tO IL € € AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Denton Municipal Electric UTILITIES ACM: Howard Martin, Utilities, 349 -8232 SUBJECT 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 as Exhibit "A ", by and between Shirley Jeannene Wright McCrory, Independent Executor of the Estate of Ruthie Frances Tyson Wright, deceased (the "Owner"), and the City of Denton (the "City "), regarding the sale by Owner and purchase by the City of a fee interest in land consisting of 1.127 acres being situated in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, located generally in the 2500 block of East McKinney Street, for the public use of expansion, constriction, maintenance, operation, and improvement of electric transmission and distribution lines, facilities, and strictures, the "Project ", for the purchase price of Sixteen Thousand Six Hundred Seven Dollars and 00 /100 ($16,607.00); as prescribed in the Contract of Sale; 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; and providing an effective date. (69kV Transmission Line Re -build Project) BACKGROUND In accord with the current 69kV Transmission Line Re -build project initiative, staff is undertaking the identification of the additional land rights necessary to accommodate the constriction and operation of the improved electric transmission and distribution system. In respect to the tract owned by the Estate of Ruthie Frances Tyson Wright, the project requires the fee simple acquisition of a 1.127 acre tract of land, to accommodate the electric utilities and electric substation infrastructure. The contemplated land rights to be acquired represent eight percent (8 %) of fee title to the 1.127 acre tract required by the Project. Pyles Whatley Corporation provided a real estate appraisal report in regard to the subject property tract with a finding of $146,493.00 for 100% of the fee title interest. The Offer to purchase the Property Interests was indicative of Ms. Wright's Estates undivided fee ownership percentage ($12,207.75). The Seller has engaged in formal negotiation dialogue with staff, and has submitted a counter offer to purchase their undivided fee ownership interest for $16,607.00. Approval of the ordinance under consideration authorizes staff to proceed to closing the purchase transaction with the Seller, as administrative settlement of the matter. OPTIONS 1. Recommend approval of the proposed Ordinance. 2. Recommend to 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. September 9, 2013 PUB Executive Session and Consent Agenda September 17, 2013 City Council Executive Session and Consent Agenda January 27, 2014 PUB Executive Session and Consent Agenda FISCAL INFORMATION The overall 69kV Transmission Line Rebuild project is being funded by issuing General Obligation Bonds which will be paid by Transmission Revenue received from all other electric utilities who are members of the Electric Reliability Council of Texas (ERCOT). The purchase offer price of $16,607.00 plus closing costs as prescribed in the Agreement are to be funded through these funding sources. BID INFORMATION Not applicable EXHIBITS 1. Location Map Respectfully submitted, 2. Ordinance Phillip Williams Prepared by, General Manager Electric Administration Denton Municipal Electric Pamela England Real Estate Specialist EXHIBIT 1 LOCATION MAP N Denton Municipal Electric Proposed Acquisition Parcel 4 - 69kV Transmission Line Project 1.127 Acres 150 0 75 150 300 FEET ice% 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 SHIRLEY JEANNENE WRIGHT MCCRORY, INDEPENDENT EXECUTOR OF THE ESTATE OF RUTHIE FRANCES TYSON WRIGHT, DECEASED (THE "OWNER "), AND THE CITY OF DENTON (THE "CITY "), REGARDING THE SALE BY OWNER AND PURCHASE BY THE CITY OF A FEE INTEREST IN LAND CONSISTING OF 1.127 ACRES BEING SITUATED IN THE T.M. DOWNING SURVEY, ABSTRACT NO. 346, CITY OF DENTON, DENTON COUNTY, TEXAS, LOCATED GENERALLY IN THE 2500 BLOCK OF EAST MCKINNEY STREET, FOR THE PUBLIC USE OF EXPANSION, CONSTRUCTION, MAINTENANCE, OPERATION, AND IMPROVEMENT OF. ELECTRIC TRANSMISSION AND DISTRIBUTION LINES, FACILITIES, AND STRUCTURES, THE "PROJECT ", FOR THE PURCHASE PRICE OF SIXTEEN THOUSAND SIX HUNDRED SEVEN DOLLARS AND 00 /100 ($16,607.00); AS PRESCRIBED IN THE CONTRACT OF SALE; 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; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized (a) to execute for and on behalf of the City (i) the Contract of Sale, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A" with a purchase price of SIXTEEN THOUSAND SIX HUNDRED SEVEN DOLLARS AND 00 /100 ($16,607.00); as prescribed in the Contract of Sale, and (ii) any other documents necessary for closing the transaction contemplated by the Contract of Sale; and (b) to make expenditures in accordance with the terms of the Contract of Sale. SECTION 2. 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 holdings 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 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: JOHN E. KELSEY KELSEAKELSEY & HICKEY, P.L.L.C. IN 2 STATE OF TEXAS § COUNTY OF DENTON § CONTRACT OF SALE NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. This Contract of Sale (the "Contract ") is made this a,�6"�day of 2013, effective as of the date of execution hereof by Seller, as i herein (the "Effective Date "), by and between SHIRLEY JEANNENE WRIGHT ORY, INDEPENDENT EXECUTOR OF THE ESTATE OF RUTHIE FRANCES TYSON WRIGHT, DECEASED (referred to herein as "Seller") and the City of Denton, Texas, a Home Rule Municipal Corporation of Denton County, Texas (referred to herein as "Buyer "). RECITALS WHEREAS, Seller owns an undivided interest in that certain tract of land being more particularly described and depicted on Exhibit "A ", attached hereto and made a part hereof for all purposes, being located in Denton County, Texas (the "Land "); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances to the Land (collectively, the "Property"). ARTICLE I SALE OF PROPERTY 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 agrees to purchase from Seller, the Property. Seller, subject to the limitation of such reservation made herein, shall reserve, for herself, her heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Seller, her heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated 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, deplete or destroy 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 parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. ARTICLE H PURCHASE PRICE AND EARNEST MONEY M 2.01 hale4 Price. - urchase Price to be p i tiler for the Property is the sum o " Thousand- Hundred -Seven and W10(ra DOLLARS ($ ^) (the "Purchase Price "). i V ` Z r� ; ' `� � ill 2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No /100 Dollars ($1,000.00), as Earnest Money (herein so called) with Title Resources, LLC, 525 South Loop 288 , Suite 125, Denton, Texas, 76205, (the "Title Company "), as escrow agent, within fourteen (14) calendar days of the Effective Date hereof. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions 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 interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. 2.03 Independent Contract Consideration. Within fourteen (14) calendar days after the Effective Date, Buyer shall deliver to the Title Company, payable to and for the benefit of Seller, a check in the amount of One Hundred and No /100 Dollars ($100.00) (the "Independent Contract Consideration "), which amount the parties hereby Contract of Sale Page 2 of 21 acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in addition to, and independent of any other consideration or payment provided in this Contract, is non - refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment ") for the Property, issued by Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights -of -way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception "). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions (the "Exception Documents "), including those described in the Title Commitment as exceptions to which the conveyance will be subject and/or which are required to be released or cured at or prior to Closing. 3.02 Survey. Within thirty (30) calendar days after the Effective Date, Seller shall cause to be prepared at Buyer's expense, a current on the ground survey of the Property (the "Survey "). The contents of the Survey shall be prepared by a surveyor selected by Buyer and shall include the matters prescribed by Buyer, which may include but not be limited to, a depiction of the location of all roads, streets, easements and rights of way, both on and adjoining the Property, water courses, 100 year flood plain, fences and improvements and structures of any kind. The Survey shall describe the size of the Property, in acres, and contain a metes and bounds description thereof. Seller shall furnish or cause to be furnished any affidavits, certificates, assurances, and/or resolutions as required by the Title Company in order to amend the survey exception as required by Section 3.05 below. The description of the Property as set forth in the Survey, at the Buyer's election, shall be used to describe the Property in the deed to convey the Property to Buyer and shall be the description set forth in the Title Policy. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period ") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception Contract of Sale Page 3 of 21 Documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ( "Objections "), if any. All items set forth in the Schedule C of the Title Commitment, and all other items set forth in the Title Commitment which are required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or Exceptions that have been voluntarily placed on or against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day period, and if Buyer does not agree in writing to an extension of that period, said extension to not exceed an additional thirty (30) calendar days, then Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to Closing, in which event those Objections shall become Permitted Exceptions (herein so called), or (b) terminating this Contract by notice in writing prior to Closing and receiving back the Earnest Money, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.04.A Additional Title Commitment. Due to the fact that the effective period of the Title Commitment shall expire prior to Closing, Seller shall cause to be furnished to Buyer, no earlier than ninety one (91) calendar days after the Effective Date and no later than one hundred ten (110) calendar days after the Effective Date, a Title Commitment ( "Updated Commitment "), in the form of the Title Commitment prescribed by Section 3.01, above. Buyer shall have fifteen (15) calendar days to review and provide Objections, if any, to the items in the Updated Commitment in the same manner as prescribed by Section 3.03 related to the Title Commitment. All time periods related to review and cure of the Objections, waiver of uncured Objections and termination of this Contract, as set forth in Article III, above, shall be applicable to the Objections by Buyer to the Updated Commitment, if any, and Closing shall be so extended to accommodate such review and cure period. 3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a standard Texas Owner's Policy of Title Insurance ( "Title Policy ") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended or deleted as follows: Contract of Sale Page 4 of 21 (a) survey exception must be amended if required by Buyer to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (b) no exception will be permitted for "visible and apparent easements" or words to that effect (although reference may be made to any specific easement or use shown on the Survey, if a Permitted Exception); (c) no exception will be permitted for "rights of parties in possession"; (d) no liens will be shown on Schedule B. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exception it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending sixty (60) calendar days thereafter (the "Absolute Review Period "), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will provide to Seller copies of (i) any and all non - confidential and non - privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance with the Contract of Sale Page 5 of 21 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 made to another date, that: (a) The descriptive information concerning the Property set forth in this Contract is complete, accurate, true and correct. (b) There are no adverse or other parties in possession of the Property or any part thereof, and no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Article V, Section 5.02(a). (c) The Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions. (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (f) The Seller has disclosed to Buyer in writing of any and all facts and circumstances relating to the physical condition of the Property that may materially and adversely affect the Property and operation or intended operation thereof, or any portion thereof, of which Seller has knowledge. (g) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject to no such liens. (h) The Seller shall convey the Property free and clear of all debts, liens and encumbrances. (i) Seller has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract. (j) To the best of Seller's knowledge, there has not occurred the disposal or release of any Hazardous Substance to, on or from the Property. As used in this Contract, "Hazardous Substance" means and includes all Contract of Sale Page 6 of 21 hazardous and toxic substances, waste or materials, chemicals, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos - containing material, petroleum products and raw 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, "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean-up of Hazardous Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as amended, Toxic Substance Control Act, 15 U.S.C. 2601, et seq., and state superlien and environmental clean-up statutes and all rules and regulations presently or hereafter promulgated under or related to said statutes, as amended. (k) All Leases, as defined in Article V, Section 5.02(a), shall have expired or otherwise terminated and any and all tenants or parties occupying the Property pursuant to the Leases shall have permanently abandoned and vacated the Property on or before the date of Closing. (1) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (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 lease agreements and/or occupancy agreements and/or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases "). (ii) All environmental audits, soil tests and engineering and feasibility reports, including any and all modifications, supplements and amendments thereto, with respect to the Property that Seller possesses or has the right to receive. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: Contract of Sale Page 7 of 21 (i) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing concerning 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 agreements of Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, grant or permit to be attached or perfected, any lien, encumbrance, or charge thereon. (c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property under any written or oral contracts arising or entered into prior to Closing. 5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Special Warranty Deed, as described in Article VII, Section 7.02(a). ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) Seller cures or Buyer waives in writing, within the time periods specified in Article III, all of Buyer's objections made in accordance with Article III. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except where specific reference is made to another date. 6.03 Adverse Change. Buyer is not obligated to perform under this Contract, if on the Contract of Sale Page 8 of 21 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, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written request from Buyer, promptly issue the instructions necessary to instruct 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 further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established with the Title Company, as escrowee. The Closing Date (herein sometimes called), shall be one hundred and eighty (180) calendar days after the Effective Date, unless otherwise mutually agreed upon by Buyer and Seller. 7.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the Title Company, at the expense of the party designated herein, the following items: (i) The Title Policy, in the form specified in Article III, Section 3.05; (ii) The Special Warranty Deed, substantially in the form as attached hereto as Exhibit `B ", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; Contract of Sale Page 9 of 21 (iii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. (b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the following items: (i) The sum required by Article II, Section 2.01, less the Earnest Money and interest earned thereon, in the form of a check or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between Seller and Buyer with respect to the Property: (a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at Closing shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. As soon as the amount of taxes levied against the Property for the calendar year in which Closing shall occur is known, Seller and Buyer shall readjust in cash the amount of taxes to be paid by each party with the result that Seller shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the date of Closing) and Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 7.05 Costs of Closing. 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 identified herein as being the responsibility of Seller. Buyer is responsible for paying fees, costs and expenses identified herein as being the responsibility of Buyer. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract are not identified herein, such costs or expenses shall be allocated between the parties in the customary manner for closings of real property similar to the Property in Denton County, Texas. Contract of Sale Page 10 of 21 ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or (iii) Seller fails to deliver at Closing, the items specified in Article VII, Section 7.02(a) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's sole and exclusive remedies for the default, may, at Buyer's sole option, do any of the following: (i) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and Seller shall, promptly on written request from Buyer, execute and deliver any documents necessary to cause the Title Company to return to Buyer the Earnest Money; (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment, whereupon Buyer shall waive title objections, if any, and accept such title without reduction in Purchase Price on account of title defects and shall 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, contract or otherwise. 8.02 Buyer's Default and Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for Contract of Sale Page 11 of 21 any reason other than a default by Seller under this Contract or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Seller's Remedy. 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 one of the following: (i) Terminate this Contract by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company to return to Seller the Earnest Money; or (ii) Enforce specific performance of this Contract against Buyer. ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, delivered, unless expressly provided otherwise in this Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be deemed to be delivered, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: BUYER: Shirley Jeannene Wright McCrory, City of Denton Independent Executor of the Estate of Paul Williamson Ruthie Frances Tyson Wright, Deceased Real Estate and Capital Support 901 -A Texas Street Telecopy Copies to: Telecopy: Denton, Texas 76209 Telecopy: (940) 349 -8951 For Buyer: L h')(16 -Vhn E. Kelsey, Attorney at Law Kelsey, Kelsey & Hickey, PLLC P.O. Box 918 Denton, Texas 76202 Telecopy: (940) 387 -9553 Contract of Sale Page 12 of 21 9.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN DENTON COUNTY, TEXAS. 9.03 Entirety 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 Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Denton County, Texas, imparting notice of this Contract to the public. 9.05 Risk of Loss. If any damage or destruction to the Property shall occur prior to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or party other than Buyer that might result in the taking of any portion of the Property, Buyer may, at Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to Buyer; or (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive any (i) in the case of damage or destruction, all insurance proceeds; and (ii) in the case of eminent domain, proceeds paid for the Property related to the eminent domain proceedings. Buyer shall have a period of up to ten (10) calendar days after receipt of written notification from Seller on the final settlement of all condemnation proceedings or insurance claims related to damage or destruction of any improvement 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 and to any and all insurance proceeds or condemnation awards which may be payable to Seller on account of such event. In the event Buyer elects to close upon this Contract after final settlement, as described above, Closing shall be held five (5) business days after such final settlement. 9.06 Further Assurances. In addition to the acts and deeds recited in this Contract Contract of Sale Page 13 of 21 and contemplated to be performed, executed and/or delivered by Seller and Buyer, Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article IX, Section 9.06 shall survive Closing. 9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 9.09 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract, including without limitation, adjustment of the Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of Denton, Texas, to Frank Payne, P.E., City Engineer of Buyer, or his designee. 9.10 Contract Execution. This Contract of Sale may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. 9.11 Business Days. If the Closing Date or the day of performance required or permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then the Closing Date or the date of such performance, as the case may be, shall be the next following regular business day. 9.12 Relocation. Relocation advisory services and relocation financial assistance, if applicable pursuant to Ordinance No. 2012 -073 (the "Relocation Ordinance "), shall be administered as provided by the Relocation Ordinance, aside and apart from the transaction contemplated by this Contract. Wright, Deceased Executed by Seller on the — day of /V Y .� , 2013. Contract of Sale Page 14 of 21 BUYER: .M�mmw� ZeoWe e. Campbell, CITY MANAGER Executed by Buyer on the day of '2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY r BY: APPROVED AS TO LEGAL FORM: JOHN E. KELSEY, KELSEY, KELSEY & HICKEY, PLLC BY: Contract of Sale Page 15 of 21 RECEIPT OF AGREEMENT BY TITLE COMPANY 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 Contract and to perform its duties pursuant to the provisions of this Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Title Resources, LLC 525 South Loop 288, Suite 125 Denton, Texas 76205 Telephone: (940) 381 -1006 Telecopy: (940) 898 -0121 M. Printed Name: Title: Contract receipt date: , 2013 Contract of Sale Page 16 of 21 RI lilt t C � S !g i A .XHIBIT "A" a b 6 0 7 r: a IFF ��oo< 5 n z 2 ;i fq N0097151"W 351.W -x N 0 �y o T 3Jn° m A Tr NIO W �PnPO0 I' NS., to 4 N OfE ow - ow DE -- ONE -- pi O F 'r soo°zrsre 30lsr—F 5 qoo � k 4 I a tv an cNi �j ii O N ►�- .< isr >� Jilt �g e tl En t a 'g e$ x co M d 's 5 gggg q �p YY' .�2 � �3p� � y e_ 1 11 i i C �q' s 5 =�53 8 aae 9 S: iR os �g RI lilt t C � S !g i A .XHIBIT "A" a b 6 0 7 r: a IFF ��oo< 5 n z 2 ;i fq N0097151"W 351.W -x N 0 �y o T 3Jn° m A Tr NIO W �PnPO0 I' NS., to 4 N OfE ow - ow DE -- ONE -- pi O F 'r soo°zrsre 30lsr—F 5 qoo � k 4 I a tv an cNi �j ii O N ►�- .< isr >� Jilt �g e tl En t a 'g e$ x co M d 's 5 gggg q �p YY' .�2 � �3p� � y e_ 1 11 i EXHIBIT "B" to Contract of Sale NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. GENERAL WARRANTY DEED STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS That Shirley Jeannene Wright McCrory, Independent Executor of the Estate of Ruthie Frances Tyson Wright, Deceased, herein called "Grantor", for and in consideration of the sum of TEN AND N01100 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 "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and 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 of Grantor's right, title and interest in and to the real property in Denton County, Texas being particularly described and depicted on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property"). Grantor, subject to the limitation of such reservation made herein, reserves, for herself, her heirs, devisees, successors and assigns all oil, gas and other minerals in, on Contract of Sale Page 18 of 21 and under and that may be produced from the Property. Grantor, her heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated 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, deplete or destroy 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 parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed V. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. This conveyance is subject to the following: (All of those Exceptions from Coverage found on Schedule B of the Owners Title Policy to which referenced is hereby made for all purposes and incorporated by reference as is fully set forth herein.) TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors Contract of Sale Page 19 of 21 and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular Grantor's undivided right, title and interest in the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty. EXECUTED the day of , 2013 Shirley Jeannene Wright McCrory, Independent Executor of the Estate of Ruthie Frances Tyson Wright, Deceased ACKNOWLEDGMENT THE STATE OF § COUNTY OF § This instrument was acknowledged before me on ' 2013 by Shirley Jeannene Wright McCrory, Independent Executor of the Estate of Ruthie Frances Tyson Wright, Deceased. Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, TX 76209 Contract of Sale Page 20 of 21 Notary Public, State of Texas My commission expires: Send Tax Billing Statements To: The City of Denton Attn: Finance Department 215 East McKinney Street Denton, Texas 76201 LHIBIT °A° Z m (p � M n i Y R obi 0 yy gg C n N00%]31" W 351.80' 9 � y xa mY� � pC 1 3 a ]s( sR p.Y- y p (�. Ti � J q r YC s S °0°223'?" 6 301-55* $ .w yr 8 wg .-o u asp p =ni x � as Os r 3�� a r • t/1 i � i �l � �H �� 6 p �Cy s g g CA CrQ ."1 v L43 flit 't r. C, Boa C pN lit- CD s� s t £40 �3i 8,��sa7 0 ?r oq =8 Z m (p � M n i Y R obi 0 yy gg C n N00%]31" W 351.80' 9 � y xa mY� � pC 1 3 a ]s( sR p.Y- y p (�. Ti � J q r YC s S °0°223'?" 6 301-55* $ .w yr 8 wg .-o u asp p =ni x � as Os r 3�� a r • t/1 i � i �l � �H �� 6 p �Cy s g g CA CrQ ."1 v L43 flit 't r. C, Boa C pN lit- CD oi,�sei3O Agei,Aa W AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Denton Municipal Electric UTILITIES ACM: Howard Martin, Utilities, 349 -8232 �. SUBJECT 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 as Exhibit "A ", by and between William "Bill" Jenkins (the "Owner"), and the City of Denton (the "City "), regarding the sale by Owner and purchase by the City of a fee interest in land consisting of 1.127 acres being situated in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, located generally in the 2500 block of East McKinney Street, for the public use of expansion, constriction, maintenance, operation, and improvement of electric transmission and distribution lines, facilities, and strictures, the "Project", for the purchase price of Two Thousand Five Hundred Dollars and 00 /100 ($2,500.00); as prescribed in the Contract of Sale; 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; and providing an effective date. (69kV Transmission Line Re -build Project) BACKGROUND In accord with the current 69kV Transmission Line Re -build project initiative, staff is undertaking the identification of the additional land rights necessary to accommodate the constriction and operation of the improved electric transmission and distribution system. In respect to the tract owned by William "Bill" Jenkins, the project requires the fee simple acquisition of a 1.127 acre tract of land, to accommodate the electric utilities and electric substation infrastructure. The contemplated land rights to be acquired represent one percent (1 %) of fee title to the 1.127 acre tract required by the Project. Pyles Whatley Corporation provided a real estate appraisal report in regard to the subject property tract with a finding of $146,493.00 for 100% of the fee title interest. The Offer to purchase the Property Interests was indicative of Mr. Jenkins undivided fee ownership percentage ($2,034.63). The Seller has engaged in formal negotiation dialogue with staff, and has submitted a counter offer to purchase their undivided fee ownership interest for $2,500.00. Approval of the ordinance under consideration authorizes staff to proceed to closing the purchase transaction with the Seller, as administrative settlement of the matter. OPTIONS 1. Recommend approval of the proposed Ordinance. 2. Recommend to 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. September 9, 2013 PUB Executive Session and Consent Agenda September 17, 2013 City Council Executive Session and Consent Agenda January 27, 2014 PUB Executive Session and Consent Agenda FISCAL INFORMATION The overall 69kV Transmission Line Rebuild project is being funded by issuing General Obligation Bonds which will be paid by Transmission Revenue received from all other electric utilities who are members of the Electric Reliability Council of Texas (ERCOT). The purchase offer price of $2,500.00 plus closing costs as prescribed in the Agreement are to be funded through these funding sources. BID INFORMATION Not applicable EXHIBITS 1. Location Map Respectfully submitted, 2. Ordinance Prepared by, Pamela England Real Estate Specialist Phillip Williams General Manager Electric Administration Denton Municipal Electric EXHIBIT 1 LOCATION MAP N Denton Municipal Electric Proposed Acquisition Parcel 4 - 69kV Transmission Line Project 1.127 Acres 150 0 75 150 300 FEET ice% 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 WILLIAM "BILL" JENKINS (THE "OWNER "), AND THE CITY OF DENTON (THE "CITY "), REGARDING THE SALE BY OWNER AND PURCHASE BY THE CITY OF A FEE INTEREST IN LAND CONSISTING OF 1.127 ACRES BEING SITUATED IN THE T.M. DOWNING SURVEY, ABSTRACT NO. 346, CITY OF DENTON, DENTON COUNTY, TEXAS, LOCATED GENERALLY IN THE 2500 BLOCK OF EAST MCKINNEY STREET, FOR THE PUBLIC USE OF EXPANSION, CONSTRUCTION, MAINTENANCE, OPERATION, AND IMPROVEMENT OF ELECTRIC TRANSMISSION AND DISTRIBUTION LINES, FACILITIES, AND STRUCTURES, THE "PROJECT ", FOR THE PURCHASE PRICE OF TWO THOUSAND FIVE HUNDRED DOLLARS AND 00 /100 ($2,500.00); AS PRESCRIBED IN THE CONTRACT OF SALE; 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; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized (a) to execute for and on behalf of the City (i) the Contract of Sale, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A" with a purchase price of TWO THOUSAND FIVE HUNDRED DOLLARS AND 00 /100 ($2,500.00), as prescribed in the Contract of Sale, and (ii) any other documents necessary for closing the transaction contemplated by the Contract of Sale; and (b) to make expenditures in accordance with the terms of the Contract of Sale. SECTION 2. 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 holdings 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 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: JOHN E. KELSEY KEL Y, KELS Y & HICKEY, P.L.L.C. B STATE OF TEXAS § COUNTY OF DENTON § CONTRACT OF SALE NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. This Contract of Sale (the "Contract ") is made this J-r2- day of _ , 2013, effective as of the date of execution hereof by Seller, as defined herein (the "Effective Date "), by and between William `Bill" Jenkins (referred to herein as "Seller ") and the City of Denton, Texas, a Home Rule Municipal Corporation of Denton County, Texas (referred to herein as "Buyer "). RECITALS WHEREAS, Seller owns an undivided interest in that certain tract of land being more particularly described and depicted on Exhibit "A ", attached hereto and made a part hereof for all purposes, being located in Denton County, Texas (the "Land "); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances to the Land (collectively, the "Property "). ARTICLE I SALE OF PROPERTY 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 agrees to purchase from Seller, the Property. Seller, subject to the limitation of such reservation made herein, shall reserve, for himself, his heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Seller, his heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated 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, deplete or destroy 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 parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of Two Thousand c'h' DOLLARS ($2,034.63) (the "Purchase "V d Thirty-Four Four and 63 100 Price ). I �i s It i 2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No /100 Dollars ($1,000.00), as Earnest Money (herein so called) with Title Resources, LLC, 525 South Loop 288 , Suite 125, Denton, Texas, 76205, (the "Title Company "), as escrow agent, within fourteen (14) calendar days of the Effective Date hereof. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions 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 interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. 2.03 Independent Contract Consideration. Within fourteen (14) calendar days after the Effective Date, Buyer shall deliver to the Title Company, payable to and for the benefit of Seller, a check in the amount of One Hundred and No /100 Dollars ($100.00) (the "Independent Contract Consideration "), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in Contract of Sale Page 2 of 21 addition to, and independent of any other consideration or payment provided in this Contract, is non - refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment ") for the Property, issued by Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights -of -way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception "). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions (the "Exception Documents "), including those described in the Title Commitment as exceptions to which the conveyance will be subject and/or which are required to be released or cured at or prior to Closing. 3.02 Survey. Within thirty (30) calendar days after the Effective Date, Seller shall cause to be prepared at Buyer's expense, a current on the ground survey of the Property (the "Survey "). The contents of the Survey shall be prepared by a surveyor selected by Buyer and shall include the matters prescribed by Buyer, which may include but not be limited to, a depiction of the location of all roads, streets, easements and rights of way, both on and adjoining the Property, water courses, 100 year flood plain, fences and improvements and structures of any kind. The Survey shall describe the size of the Property, in acres, and contain a metes and bounds description thereof. Seller shall furnish or cause to be furnished any affidavits, certificates, assurances, and/or resolutions as required by the Title Company in order to amend the survey exception as required by Section 3.05 below. The description of the Property as set forth in the Survey, at the Buyer's election, shall be used to describe the Property in the deed to convey the Property to Buyer and shall be the description set forth in the Title Policy. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period ") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception Documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ( "Objections "), if any. All items set forth in the Schedule C of Contract of Sale Page 3 of 21 the Title Commitment, and all other items set forth in the Title Commitment which are required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or Exceptions that have been voluntarily placed on or against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day period, and if Buyer does not agree in writing to an extension of that period, said extension to not exceed an additional thirty (30) calendar days, then Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to Closing, in which event those Objections shall become Permitted Exceptions (herein so called), or (b) terminating this Contract by notice in writing prior to Closing and receiving back the Earnest Money, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.04.A Additional Title Commitment. Due to the fact that the effective period of the Title Commitment shall expire prior to Closing, Seller shall cause to be furnished to Buyer, no earlier than ninety one (91) calendar days after the Effective Date and no later than one hundred ten (I 10) calendar days after the Effective Date, a Title Commitment ( "Updated Commitment "), in the form of the Title Commitment prescribed by Section 3.01, above. Buyer shall have fifteen (15) calendar days to review and provide Objections, if any, to the items in the Updated Commitment in the same manner as prescribed by Section 3.03 related to the Title Commitment. All time periods related to review and cure of the Objections, waiver of uncured Objections and termination of this Contract, as set forth in Article III, above, shall be applicable to the Objections by Buyer to the Updated Commitment, if any, and Closing shall be so extended to accommodate such review and cure period. 3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a standard Texas Owner's Policy of Title Insurance ( "Title Policy ") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended or deleted as follows: (a) survey exception must be amended if required by Buyer to read "shortages in Contract of Sale Page 4 of 21 area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (b) no exception will be permitted for "visible and apparent easements" or words to that effect (although reference may be made to any specific easement or use shown on the Survey, if a Permitted Exception); (c) no exception will be permitted for "rights of parties in possession "; (d) no liens will be shown on Schedule B. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exception it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending sixty (60) calendar days thereafter (the "Absolute Review Period "), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will provide to Seller copies of (i) any and all non - confidential and non - privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance 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 made to another date, Contract of Sale Page 5 of 21 that: (a) The descriptive information concerning the Property set forth in this Contract is complete, accurate, true and correct. (b) There are no adverse or other parties in possession of the Property or any part thereof, and no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Article V, Section 5.02(a). (c) The Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions. (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (f) The Seller has disclosed to Buyer in writing of any and all facts and circumstances relating to the physical condition of the Property that may materially and adversely affect the Property and operation or intended operation thereof, or any portion thereof, of which Seller has knowledge. (g) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject to no such liens. (h) The Seller shall convey the Property free and clear of all debts, liens and encumbrances. (i) Seller has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract. (j) To the best of Seller's knowledge, there has not occurred the disposal or release of any Hazardous Substance to, on or from the Property. As used in this Contract, "Hazardous Substance" means and includes all hazardous and toxic substances, waste or materials, chemicals, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos- Contract of Sale Page 6 of 21 containing material, petroleum products and raw 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, "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean-up of Hazardous Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as amended, Toxic Substance Control Act, 15 U.S.C. 2601, et seq., and state superlien and environmental clean-up statutes and all rules and regulations presently or hereafter promulgated under or related to said statutes, as amended. (k) All Leases, as defined in Article V, Section 5.02(a), shall have expired or otherwise terminated and any and all tenants or parties occupying the Property pursuant to the Leases shall have permanently abandoned and vacated the Property on or before the date of Closing. (1) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (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 lease agreements and/or occupancy agreements and/or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases "). (ii) All environmental audits, soil tests and engineering and feasibility reports, including any and all modifications, supplements and amendments thereto, with respect to the Property that Seller possesses or has the right to receive. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect Contract of Sale Page 7 of 21 to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing concerning 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 agreements of Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, grant or permit to be attached or perfected, any lien, encumbrance, or charge thereon. (c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property under any written or oral contracts arising or entered into prior to Closing. 5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Special Warranty Deed, as described in Article VII, Section 7.02(a). ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) Seller cures or Buyer waives in writing, within the time periods specified in Article III, all of Buyer's objections made in accordance with Article III. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except where 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 Contract of Sale Page 8 of 21 initiated by an entity other than Buyer, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written request from Buyer, promptly issue the instructions necessary to instruct 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 further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established with the Title Company, as escrowee. The Closing Date (herein sometimes called), shall be one hundred and eighty (180) calendar days after the Effective Date, unless otherwise mutually agreed upon by Buyer and Seller. 7.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the Title Company, at the expense of the party designated herein, the following items: (i) The Title Policy, in the form specified in Article III, Section 3.05; (ii) The Special Warranty Deed, substantially in the form as attached hereto as Exhibit `B ", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; (iii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. Contract of Sale Page 9 of 21 (b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the following items: (i) The sum required by Article II, Section 2.01, less the Earnest Money and interest earned thereon, in the form of a check or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between Seller and Buyer with respect to the Property: (a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at Closing shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. As soon as the amount of taxes levied against the Property for the calendar year in which Closing shall occur is known, Seller and Buyer shall readjust in cash the amount of taxes to be paid by each party with the result that Seller shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the date of Closing) and Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 7.05 Costs of Closing. 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 identified herein as being the responsibility of Seller. Buyer is responsible for paying fees, costs and expenses identified herein as being the responsibility of Buyer. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract are not identified herein, such costs or expenses shall be allocated between the parties in the customary manner for closings of real property similar to the Property in Denton County, Texas. Contract of Sale Page 10 of 21 ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or (iii) Seller fails to deliver at Closing, the items specified in Article VII, Section 7.02(a) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's sole and exclusive remedies for the default, may, at Buyer's sole option, do any of the following: (i) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and Seller shall, promptly on written request from Buyer, execute and deliver any documents necessary to cause the Title Company to return to Buyer the Earnest Money; (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment, whereupon Buyer shall waive title objections, if any, and accept such title without reduction in Purchase Price on account of title defects and shall 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, contract or otherwise. 8.02 Buyer's Default and Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for Contract of Sale Page 11 of 21 any reason other than a default by Seller under this Contract or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Seller's Remedy. 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 one of the following: (i) Terminate this Contract by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company to return to Seller the Earnest Money; or (ii) Enforce specific performance of this Contract against Buyer. ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, delivered, unless expressly provided otherwise in this Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be deemed to be delivered, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: William "Bill" Jenkins � -3 17 �1- 41 ly (xctAti Run G':r (e Telecopy 1' 6.'3 - ! %- 5 G Copies to: For Seller: Telecopy: BUYER: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349 -8951 For Buyer: John E. Kelsey, Attorney at Law Kelsey, Kelsey & Hickey, PLLC P.O. Box 918 Denton, Texas 76202 Telecopy: (940) 387 -9553 Contract of Sale Page 12 of 21 9.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN DENTON COUNTY, TEXAS. 9.03 Entirety 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 Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Denton County, Texas, imparting notice of this Contract to the public. 9.05 Risk of Loss. If any damage or destruction to the Property shall occur prior to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or party other than Buyer that might result in the taking of any portion of the Property, Buyer may, at Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to Buyer; or (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive any (i) in the case of damage or destruction, all insurance proceeds; and (ii) in the case of eminent domain, proceeds paid for the Property related to the eminent domain proceedings. Buyer shall have a period of up to ten (10) calendar days after receipt of written notification from Seller on the final settlement of all condemnation proceedings or insurance claims related to damage or destruction of any improvement 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 and to any and all insurance proceeds or condemnation awards which may be payable to Seller on account of such event. In the event Buyer elects to close upon this Contract after final settlement, as described above, Closing shall be held five (5) business days after such final settlement. 9.06 Further Assurances. In addition to the acts and deeds recited in this Contract and contemplated to be performed, executed and/or delivered by Seller and Buyer, Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed Contract of Sale Page 13 of 21 and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article IX, Section 9.06 shall survive Closing. 9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 9.09 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract, including without limitation, adjustment of the Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of Denton, Texas, to Frank Payne, P.E., City Engineer of Buyer, or his designee. 9.10 Contract Execution. This Contract of Sale may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. 9.11 Business Days. If the Closing Date or the day of performance required or permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then the Closing Date or the date of such performance, as the case may be, shall be the next following regular business day. 9.12 Relocation. Relocation advisory services and relocation financial assistance, if applicable pursuant to Ordinance No. 2012 -073 (the "Relocation Ordinance "), shall be administered as provided by the Relocation Ordinance, aside and apart from the transaction contemplated by this Contract. Executed by Seller on the day of Q , 2013. —Lr Contract of Sale Page 14 of 21 BUYER: "l George C. Campbell, CITY MANAGER Executed by Buyer on the "' day of y... , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Contract of Sale Page 15 of 21 RECEIPT OF AGREEMENT BY TITLE COMPANY 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 Contract and to perform its duties pursuant to the provisions of this Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Title Resources, LLC 525 South Loop 288, Suite 125 Denton, Texas 76205 Telephone: (940) 381 -1006 Telecopy: (940) 898 -0121 Un Printed Name: Title: Contract receipt date: , 2013 Contract of Sale Page 16 of 21 to 8 R Fe 3g e az G X Exhibit "A" 3, o L o 3 L L tl •� 0 3 3 L L L L 9• 3 Y 3 L g g 3 a s g s 3 3 g _ °03 �o 0¢35•= r' c u R 3' @R 'sv pp QQ - =R c 'd g to 8 R Fe 3g e az G X Exhibit "A" S 8 ss E rZ°a O G � s _q'p 0 S N , N R O p a NqC m_p N p s Z G i iy Z (/1 S°ey �c 4'y tw �7�L 1y ^. N 00 °33'51 ` W 351.80' f .....�. — xr 7 N p N / xemrm J r "• 'N"�'a W °nv �m a1 ( / v� u / J, A mo h... --- ....... OHE ---- OHE ® OHE OHE —® ME ® OHE - 1' S 00-22-52- E 301.i 5' f� Rg b o m�G ,yM W ^Irl 'y V / °� ss 0 .j F+�\y S bW� X11IMIs N rQ co a0 3.4 R 3C �`ss k�a mC T Had c � > n l +, cai� G rT�'".'•' 6yN 3 ns� €� a•_� i ~a,3� -mot �+ w Rcr n•t `c�L`.' r� d''.5°� � co ml's p�� pyeE <a v H is kyR. ps F 4 y ^NZ„p a�` ry pp 3 ar a +a y5 °g §g yyy Syria Y 3, o x tl S 8 ss E rZ°a O G � s _q'p 0 S N , N R O p a NqC m_p N p s Z G i iy Z (/1 S°ey �c 4'y tw �7�L 1y ^. N 00 °33'51 ` W 351.80' f .....�. — xr 7 N p N / xemrm J r "• 'N"�'a W °nv �m a1 ( / v� u / J, A mo h... --- ....... OHE ---- OHE ® OHE OHE —® ME ® OHE - 1' S 00-22-52- E 301.i 5' f� Rg b o m�G ,yM W ^Irl 'y V / °� ss 0 .j F+�\y S bW� X11IMIs N rQ co a0 3.4 R 3C �`ss k�a mC T Had c � > n l +, cai� G rT�'".'•' 6yN 3 ns� €� a•_� i ~a,3� -mot �+ w Rcr n•t `c�L`.' r� d''.5°� � co ml's p�� pyeE <a v H is kyR. ps F 4 y ^NZ„p a�` ry pp 3 ar a +a y5 °g §g yyy Syria Y EXHIBIT "B" to Contract of Sale NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. GENERAL WARRANTY DEED STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS That William "Bill" Jenkins, herein called "Grantor ", for and in consideration of the sum of TEN AND NO /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 "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and 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 of Grantor's right, title and interest in and to the real property in Denton County, Texas being particularly described and depicted on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Grantor, subject to the limitation of such reservation made herein, reserves, for himself, his heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, his heirs, devisees, Contract of Sale Page 18 of 21 successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated 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, deplete or destroy 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 parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. This conveyance is subject to the following: (All of those Exceptions from Coverage found on Schedule B of the Owners Title Policy to which referenced is hereby made for all purposes and incorporated by reference as is fully set forth herein.) TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and Contract of Sale Page 19 of 21 assigns to WARRANT AND FOREVER DEFEND all and singular Grantor's undivided right, title and interest in the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty. EXECUTED the day of , 2013 William `Bill" Jenkins ACKNOWLEDGMENT THE STATE OF § COUNTY OF § This instrument was acknowledged before me on , 2013 by William "Bill" Jenkins. Notary Public, State of Texas My commission expires: Upon Filing Return To: Send Tax Billing Statements To: The City of Denton - Engineering The City of Denton Attn: Paul Williamson Attn: Finance Department 901 -A Texas Street 215 East McKinney Street Denton, TX 76209 Denton, Texas 76201 Contract of Sale Page 20 of 21 `E s YA 3 i 3 z 1. n > a � F °s 's x pF S Exhibit "A" ' O M 6 K Z D v in Nc`O W •°t p 's .�9a n N ° 0 2 i nA X3sa N00 °3351 "W 351.80' c*a O V g Q I Ctl O sC J A R. JC Easmrer/ P rt t —Al OHE. --- WE ®...— WE ..._.._.. 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WE --- WE _.® 13HE 0 � -It a s S 00 °22'52" E 301.55' svo� 7t x" I ES! 97' F ^n$ m v 7/ f�A n o p �aa 000e 0 ,s C ;r �� d �• Y <,J N S�hs n�^. 2 3 "y S`,s kz. 2a�� c e �: 'i a` n co pia ' °_ =gg s a�,� Fi MC 35' 8 8 It °2 SC hp C $ 'EE$ a.$g =g" ly, B. 1`' ag �}yb e.L7 roc '`40 m'R d� 8YR ap nge� =.age 3i CD ON Majaell 1 Corr se i3O Xei,A CITY OF DENTON CITY COUNCIL MINUTES December 2, 2013 Joint Meeting of the City of Denton City Council and the Denton Independent School District Board of Trustees on Monday, December 2, 2013 at 11:30 a.m. in the DISD Central Services Building, 1307 N. Locust St., Denton, Texas. PRESENT: Mayor Burroughs; Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins ABSENT: Mayor Pro Tem Kamp 1. Call to order; announce quorum, introductions. Mayor Burroughs announced that a quorum of the Council was present and called the City Council portion of the meeting to order. 2. Receive a report, hold a discussion, and give staff direction regarding a proposed Hotel and Convention Center. City Manager Campbell stated that the City was close to completing a developer's agreement to present to Council. There were a number of elements affected by the agreement as well as other entities involved such as UNT and the Chamber of Commerce. Jon Fortune, Assistant City Manager, presented an update on the project. The update included a project overview, collaboration of entities, the site location and type of proposed hotel. The proposed hotel was an Embassy Suites Hotel with a Houlihan's restaurant. There was also an educational opportunity through the UNT School of Hospitality. The City would fund and own the convention center. However, the City was not funding the hotel. The goal was to have the convention center be self - supporting. The City would sell Certificates of Obligation to fund the site. To assist with the financing, a Tax Increment Finance District would be formed. This would allow participation by the DISD and the County. Next Steps — The next steps in the process included (1) approving the development agreements, (2) begin design, (3) initiate the creation of a tax increment finance district, (4) solicit constriction proposals, (5) finalize the project budget, (6) close on the financing, finalize the bonds, and (7) begin the design. Mayor Burroughs asked if there were current facilities which looked like the proposed convention center. Fortune stated that the facilities in Frisco and San Marcus had a similar look to the proposed facility in Denton. The Denton facility would have a different look as it would be built with LEED certification. Trustee Stafford asked about the architect. Fortune stated that there would be an in -house architect but with outside constriction help. Trustee Smith asked about the history of the project in terms of why the prior hotel was torn down. City of Denton City Council Minutes December 2, 2013 Page 2 Fortune stated that the former hotel needed significant refurbishing. UNT felt that it was in the best interest to take it down. Trustee Smith asked whether the current location would present any problems. Fortune stated that two market studies had been done regarding a convention center. The studies showed that there was a need and a demand for a convention center in this location. Trustee Smith expressed a concern putting the proposed facility in this neighborhood due to neighborhood opposition. Fortune stated that a traffic circle had been approved by the neighborhood. Mayor Burroughs stated that staff had been working with the neighborhood to do as little harm as possible to the area. 3. Receive a report and hold a discussion regarding legislative programs of interest to the City of Denton and Denton Independent School District including but not limited to topics that might be recommended for interim study by the Texas Legislature. Mayor Burroughs stated that Speaker Strauss had addressed a recent meeting of mayors and indicated that interim committees were being formed. Strauss had asked for suggestions on topics for discussion. Mayor Burroughs suggested that cities were under attack by the State in terms of city authority and governance. Trustee Stafford suggested a possible topic might be the use of the remainder of the City sales tax for early childhood education. A collaborative effort among various governmental entities could help further this idea. Another suggestion would be transportation for early childhood programs. Trustee Rodriguez suggested making the topic broader than just early childhood education. Council Member Engelbrecht asked if there was a timeline to submit ideas. Mayor Burroughs suggested the topic of limited sales tax issue for specific projects. Council Member King left the meeting. 4. Discuss possible future meeting topics. Suggested topics for future meetings included (1) partnerships, (2) updates on projects each entity was working on and (3) Denton pre - kindergarten issue. 5. 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 City of Denton City Council Minutes December 2, 2013 Page 3 Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, 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 reminder 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. There was no new business suggested by Council Members. 6. Adjourn. With no further business, the Mayor adjourned the City Council portion of the meeting at 1:15 p.m. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES December 3, 2013 After determining that a quorum was present, the City Council of the City of Denton, Texas convened in a Work Session on Tuesday, December 3, 2013 at 4:00 p.m. in the Council Work Session Room. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden ABSENT: Council Member Hawkins 1. 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 December 3, 2013. City Attorney Burgess stated that the posting for Item 6A was not correct and recommended that Council open the public hearing, wait on action on the item and continue it to the December 17th meeting. 3. Receive a report, hold a discussion and give staff direction regarding replacement of the Eureka! Playground in South Lakes Park. Emerson Vorel, Director of Parks and Recreation, stated that the playground was 19 years old. It was a well -used playground in the system but had aged over the years. An associated topic with the playground was the fact that the lumber that was used had arsenic although it was sealed every year. The time had come to replace the playground. Staff recognized this would be a sensitive project in terms of those using it and those who worked on the original playground. Staff was requesting guidance on what the replacement playground would look like. The Park Foundation volunteered to work on fundraising for the replacement. The project sequence would be (1) accept the replacement project, and (2) develop a vision on what the playground would look like. One option was a steel and plastic playground. Another option was a newer version of Eurekal. An option would be to have a 2 -5 year old playground and a 5 -12 playground that was separated with a fence. Elements of the playground would be constricted with recycled plastic - not wood. The surfacing would be poured in place with a rubberized product topped with granulated ribber. That product would replace the wood fiber currently in all of the playgrounds. However, that material was very expensive compared to the wood fiber. Another element of a new playground would be equipment/surfacing for special needs children. Consensus of the Council was to continue with the proposed design and approach but also look for other options to consider. Council Member Engelbrecht suggested expanding the parking and have a public transportation stop near the area. 4. Receive a report, hold a discussion and give staff direction regarding a proposed Hotel /Convention Center. City of Denton City Council Minutes December 3, 2013 Page 2 Jon Fortune, Assistant City Manager, presented an update on the progress of the convention center and highlighted the changes made. The Master Development Agreement was essentially the same document as previously provided. Insurance provisions included liquor liability as well as a business interruption policy required in the sublease. The only change in the site plan was the delineation of the hotel site versus the site of the convention center. Definitions were revised in the City -UNT lease and also updated the rent table. The insurance indemnity provisions were also refined. Fortune noted that the City- Convention Center sublease included language to help qualify conditions to allow for a change in management of the Convention Center. Language was also inserted to clarify the maintenance language and responsibility of the City in terms of ongoing capital maintenance. Insurance changes were similar to the master development agreement. The UNT land lease was still under discussion. UNT was scheduled to consider that at their December 10th meeting. Mayor Burroughs asked about the decision making process for the traffic circle in the neighborhood. Fortune stated that at this time it was not a TxDOT funded project nor was it a component of the funding for the convention center or hotel. The concept was brought forward to TxDOT for the area. Funding was currently the issue and staff was looking at viable opportunities for funding. Mayor Burroughs felt that there were congestion mitigation issues in the area and the project should rank high on a list due to the conditions. Mayor Pro Tem Kamp stated that staff would be considering options through COG and RTC. She noted that the design was acceptable to the neighborhood and to TxDOT. Council Member Roden asked about conversations with the DISD and the County regarding the proj ect. Fortune stated that over the past year, there had been multiple conversations with the DISD. The DISD always indicated that they would be agreeable once they saw the details. Staff had more one -on -one conversations with individual County Commissioners. Staff was ready to make a presentation to the full Commissioners Court once the agreement was signed. If a TIRZ was not approved by the two entities, it would pose a serious threat to the project. Questions to consider were whether they would participate and how much were they willing to participate. Council discussed the impact of the I35 constriction on the project and the timing of the project. Council Member Engelbrecht stated that he would like a calendar of events in terms of constriction and what was known today for the I35. He felt the road should be completed before the project was completed. The traffic circle should be targeted for a completion date that coincided with the completion of the hotel. Following the completion of the Work Session, the Council convened in a Closed Meeting at 5:05 p.m. to consider the items listed below. City of Denton City Council Minutes December 3, 2013 Page 3 1. Closed Meeting: A. Consultation with Attorney - Under Texas Government Code Section 551.071; and Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. 1. Receive a report, hold a discussion, and give staff direction regarding a Reimbursement Agreement with Rayzor Investments, Ltd. for Tax Increment Reinvestment Zone Two (TIRZ II) with respect to infrastructure improvements within TIRZ IL This discussion shall include commercial and financial information the City has received from Rayzor Investments, Ltd. which the City Council seeks to enter into a Reimbursement Agreement for TIRZ II, where City Council seeks to have commercial or industrial businesses locate, stay, or expand in or near the territory of the city, and with which the City Council is conducting economic development negotiations; including the offer of financial or other incentives. This item was not discussed. B. Consultation with Attorney - Under Texas Government Code Section 551.071 1. Consultation with the City's attorneys regarding legal advice concerning the leasing of land and financing of a proposed Hotel /Convention Center facility of University of North Texas property located at I -35 and North Texas Boulevard where a public discussion of this legal matter would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. C. Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. 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 James Perry Survey, Abstract No. 1040, John Scott Survey, Abstract No. 1222, John Bacon Survey, Abstract No. 1541, and the John Davis Survey, Abstract No. 326, City of Denton, Denton County, Texas, and generally located along Western Boulevard between Airport Road and Jim Christal Road. 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. City of Denton City Council Minutes December 3, 2013 Page 4 Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney, Denton, Texas, 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLANIATIONS/PRESENTATIONS A. Proclamations /Awards 1. Police Appreciation Day Mayor Burroughs presented the proclamation for Police Appreciation Day. 2. Denton Calvary Academy Lady Lion Volleyball Appreciation Day Mayor Burroughs presented the proclamation for Denton Calvary Academy Lady Lion Volleyball Appreciation Day. 3. CITIZEN REPORTS A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: 1. Carol Soph regarding disclosure policy for urban development. Ms. Soph indicated that a disclosure agreement was being considered alerting prospective buyers of nearby gas wells. She felt that a lot of information had been left out of the notice. She provided the Council with information on what effects chemicals from gas well drilling and fracking had on a person's body. 4. CONSENT AGENDA Council Member King motioned, Council Member Roden seconded to approve the Consent Agenda and accompanying ordinances and resolutions. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden — "aye ". Motion carried unanimously. Resolution No. R2013 -039 A. Consider approval of a resolution casting votes for membership to the Board of Directors of the Denton Central Appraisal District; and declaring an effective date. City of Denton City Council Minutes December 3, 2013 Page 5 Ordinance No. 20 13-33 1 B. Consider adoption of an ordinance of the City of Denton, Texas authorizing the approval of a First Amendment to a contract for vehicle and equipment parts, by and between Genuine Parts Company dba NAPA Integrated Business Solutions and the City of Denton, Texas, providing for the expenditure of funds therefor; and providing an effective date (Bid 4739 - Providing for an additional expenditure amount of $2,700,000 with the total contract amount not -to- exceed $11,804,355.53). Ordinance No. 2013 -332 C. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Denton Holiday Lighting; providing for the expenditure of funds therefore; and providing for an effective date. ($1,000) Ordinance No. 2013 -333 D. Consider adoption of an ordinance authorizing execution of a franchise agreement with the City of Denton, acting through its electric utility, granting a franchise to maintain, and operate facilities within the City of Corinth for the delivery and sale of electricity; providing for the payment of a fee for the use of the public rights -of -way; providing that such fee shall be in lieu of other charges; setting forth the term of the franchise; and providing an effective date. (Third Reading) 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. Consider nominations /appointments to the City's Boards and Commissions. 1. Airport Advisory Board Mayor Burroughs nominated Jim Clark. 2. Community Development Advisory Committee Mayor Burroughs nominated Mary Beth Cottingham. 3. Human Services Advisory Committee Council Member Roden nominated Bryce Olsen. 4. Public Art Committee Mayor Pro Tem Kamp nominated Brian Wheeler. 5. Zoning Board of Adjustment There were no nominations to the Zoning Board of Adjustment. 6. Citizens Bond Advisory Committee Council Member Hawkins appointed Dan Proctor. Council Member Gregory appointed Robert Bostick and Sara Hoffman. Council Member Engelbrecht appointed Ira Weinstein and Amanda Austin. City of Denton City Council Minutes December 3, 2013 Page 6 Council Member Roden motioned, Council Member Engelbrecht seconded to approve the above nominations. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden — "aye ". Motion carried unanimously. 6. PUBLIC HEARINGS A. Hold a public hearing and consider making a recommendation to the City Council regarding amendments to the City's Gas Well Ordinance, Denton Development Code Subchapter 22, pertaining to certain definitions and to the sequence of permits necessary for constriction, drilling, and production activities. (DCA 13 -0003) The Planning & Zoning Commission recommends approval (7 -0). Mayor Burroughs stated that the City Attorney's Office had indicated that the posting on the agenda was not sufficient to consider the ordinance; however, the public hearing would be opened. If someone spoke at this meeting, he /she would not be able to speak at a later meeting on the same item. Brian Locldey, Director of Planning and Development, presented the information on the item. He indicated that these were amendments to Subchapter 22, pertaining to certain definitions and the sequence of permits necessary relating to gas well drilling and production activities and clarified the current practice with the Code. The first amendment revised the definition of gas well permit. It identified the entity issuing the gas well permit as the Department, defined in the Code Subchapter 23 as the Planning and Development Department. It also clarified the City's current practice and included additional activities in the definition that currently were described in the Code Section 35.22.7. The second amendment added a requirement for approval of a fire code operational permit. The fire code operational permit would be the last step prior to drilling the well. The Mayor opened the public hearing. No one spoke during the public hearing. Comment cards were submitted by: Rhonda Love, 1921 Hollyhill Lane, Denton, - in support making it retroactive to all wells Angel Bravo, 2269 W. Oak, Denton, 76201 — in support Pepper Cunningham, 912 Avenue A, Denton, 76201 — in support Mayor Pro Tem Kamp motioned, Council Member Engelbrecht seconded to continue the item and the public hearing to a date certain, December 17, 2013. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden — "aye ". Motion carried unanimously. City of Denton City Council Minutes December 3, 2013 Page 7 7. CITIZEN REPORTS There were no citizen reports for this portion of the meeting. 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 taken, 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 reminder 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 Gregory noted the Holiday Lighting Festival to be held Friday. B. Possible Continuation of Closed Meeting under Sections 551.071 - 551.086 of the Texas Open Meetings Act. Mayor Burroughs noted that Council would be reconvening in Closed Session. The following item was considered in Closed Session at 7:25 p.m. B. Consultation with Attorney — Under Texas Government Code Section 551.071. 2. Receive a report and hold a discussion with the City's attorneys regarding the City of Denton's Sign Ordinance. With no further business, the Council convened into Open Session at 8:15 p.m. and adjourned. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES December 10, 2013 After determining in Open Session that a quorum was present, the City Council convened in Closed Session on Tuesday, December 10, 2013 at 3:00 p.m. in the Council Work Session Room. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins ABSENT: None 1. Closed Meeting A. Consultation with Attorney - Under Texas Government Code Section 551.071. 1. Consultation with the City's attorneys regarding legal advice concerning the leasing of land and financing of a proposed Hotel /Convention Center facility of University of North Texas property located at I -35 and North Texas Boulevard where a public discussion of this legal matter would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. 2. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with Gas Well Ordinance regulation of gas well drilling and production within the City Limits and the extraterritorial jurisdiction, including Constitutional limitations, statutory limitations upon municipal regulatory authority, 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. B. Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086; and Consultation with Attorneys - Under Texas Government Code, Section 551.071. 1. Receive a presentation from Denton Municipal Electric ( "DME ") staff regarding certain public power competitive, financial and commercial information relating to issues regarding purchased power pricing and other public power information that is contained in the Purchase Power Agreement by and between the City of Denton, Texas who is selling power and electric energy services to the University of North Texas. Discuss, deliberate, consider a recommendation of approval of, and take final action on said Agreement. Consultation with the City's attorneys regarding legal issues associated and related to the Purchase Power Agreement 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. City of Denton City Council Minutes December 10, 2013 Page 2 Council considered approval of the above detailed agreement. Mayor Pro Tem Kamp motioned, Council Member Gregory seconded to adopt Ordinance No. 2013 -354. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. C. Deliberations regarding Real Property - Under Texas Government Code, Section 551.072; and Consultation with Attorneys - Under Texas Government Code, Section 551.071. 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 James Perry Survey, Abstract No. 1040; John Scott Survey, Abstract No. 1222; John Bacon Survey, Abstract No. 1541; and the John Davis Survey, Abstract No. 326, City of Denton, Denton County, Texas, and generally located along Western Boulevard between Airport Road and Jim Christal Road. 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. 2. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests located in (1) the James Edmonson Survey, Abstract Number 400, Denton County, Texas (located generally on Roselawn Drive, 600 feet east of South Bonnie Brae Street), in the City of Denton, Texas; and (2) in the James Edmonson Survey, Abstract No. 400, Denton County, Texas, located generally in the 3100 Block of South Bonnie Brae Street, in Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests 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. (Bonnie Brae Street Widening and Improvements project) Following the completion of the Closed Session at 5:43 p.m., the City Council convened in a 2nd Tuesday Session. 1. Receive a report, hold a discussion and give staff direction regarding a proposed Hotel /Convention Center. City of Denton City Council Minutes December 10, 2013 Page 3 Jon Fortune, Assistant City Manager, stated that he did not have a formal presentation. This was listed as a follow -up from any previous sessions where the item had been discussed. He was available for Council questions. Council did not have any questions at this time. 2. Receive a report, hold a discussion and provide direction regarding options to improve pedestrian accessibility including the restriction of vehicle access in the 100 block of Walnut Street. Mark Nelson, Director of Transportation, presented the information on the topic. A group of merchants and stakeholders had requested consideration of the closing of Walnut Street between South Locust and South Elm to vehicular traffic to create a pedestrian mall. Mayor Pro Tem Kamp met with the merchants and stakeholders to gauge the general interest in the idea or to look into other options that might include partial closure of the street. At that meeting, it was recognized that there were several issues involved such as financing of infrastructure, loss of vehicular parking and maintaining utility /service access that would need to be addressed. Mayor Pro Tem Kamp requested staff review options for Walnut Street to improve pedestrian amenities or create a pedestrian plaza and to bring the item to the Mobility Committee to determine feasibility. Three initial options were considered by staff and presented to the Committee. They included (1) permanent street closure — conversion to a pedestrian plaza/mall with no vehicular access other than public safety vehicles, (2) limited closure — close Walnut Street to vehicular traffic during specified hours and reopen during normal business hours to allow access for utility service, merchant deliveries and maintain vehicle circulation around the Square during business hours, and (3) complete street — constrict Walnut to 20 feet wide allowing Fire Department access and expand sidewalk on one or both sides. The Mobility Committee considered these options on October 15th and requested staff to determine cost estimates for utilities in the corridor and present those to Council for consideration. Current conditions on Walnut — pictures were shown of the current conditions showing utility services, grease traps, and solid waste containers in the street. The estimated cost of municipal utility expenses including electric, water, wastewater, solid waste, streets and sidewalk, and street lights was $763,152. Examples of street closures, limited closures, and a complete street concept were shown. The DTIP had listed Walnut as a mews street with sidewalks, raised crosswalks, medians and traffic calming devices. Council Member Gregory asked if it would be the City's responsibility to provide ramps for service entrances and if that was included in the cost estimate. Nelson stated it was not included in the cost estimate. Council Member King asked if the same building materials would be used such as wooden stairs and just replace with wood. Nelson replied that had not been determined at this time. City of Denton City Council Minutes December 10, 2013 Page 4 Council Member Roden asked about return on investment and whether there was talk from the businesses about the back of the building being the main entrance and if that would be viable. Mayor Pro Tem Kamp replied that it had been discussed but the project would not be a re- orientation but rather an addition to an entrance. It would be similar to Sweetwater's on the corner. A discussion was needed by Council on the type of closure to consider — a full closure, partial closure or a build new streetscape. Utilities access was a major problem. Perhaps only one lane of vehicular traffic might be considered. Any type of ramps would have to be ADA accessible. Council Member Gregory stated that the Mobility Committee also discussed the possibility of not having the road all the way through but maybe a quarter of the way down on either side so the Fire Department could get in if needed and would also be available for loading and unloading of merchant supplies. Nelson stated that any of the options could maintain the 20 feet fire lane which could be used for utility access, pedestrians and still service the area. Council Member Engelbrecht felt that access from two ends of the street might be a problem and there also could be problems with delivery vehicles blocking the access. He noted that the minutes of Mobility Committee indicated that the property owners would be in favor if they had to improve the facades. He questioned if that would that be part of the program to have the property owners improve the facades. Nelson stated that there was a comment from the audience that it would probably have to be done but there was no discussion. Council Member Engelbrecht questioned if the loss of the 20 parking spaces was included in the cost estimate. Nelson stated that approximately 23 on- street parking spaces would be lost. Council Member Hawkins questioned the logistics of deliveries to the businesses and had that been discussed at the meetings. Mayor Pro Tem Kamp stated that the original meeting had 40 people in attendance with varying degrees of people's desires and commitments. Some of merchants would get on board immediately while others would not. It would not be an all or nothing at the beginning. This project might be considered as a Better Block site. Right now, this was in a discussion phase on what to do or what was wanted to be seen in this area. Council Member Gregory felt this would fit in with the big plan for Downtown and expand walkability of the area. As the project moved forward, a modification of the budget sheet would be needed to include the cost for landscaping, streetscape and a cost estimate to redo the service entrances and sidewalks on the north side of the street. City of Denton City Council Minutes December 10, 2013 Page 5 Mayor Burroughs felt that there needed to be engagement of the owners to bring enhancements to the street as well as the access to the street. City Attorney Burgess stated that the City would be required to do the ADA requirements if the City were the one to initiate the improvements. Council Member Roden stated that he was hearing the need for more green space environment and this might be a possible area. He cautioned to be aware of changes from one section to another and how that would affect the street. Council Member King suggested getting more information on what exactly was being proposed and to get more information from those most affected by the proposed changes. Mayor Pro Tem Kamp suggested being creative and looking at other options with the process. Council Member Gregory suggested thinking of the project in terms of part of the study for green space and outdoor congregating space for people in the Downtown area. He also suggested looking at Austin and Pecan Streets. Mayor Pro Tem Kamp suggested this might be a project for the Bond Committee to consider. Following the completion of the 2nd Tuesday Session, the Council convened in a Special Called Session. Ordinance No. 2013 -334 1. Consider adoption of an ordinance approving the Denton Convention Center Project Master Development Agreement between the City of Denton, Texas (City), the University of North Texas (UNT), O'Reilly Hotel Partners Denton, LLC (OHPD), and O'Reilly Hospitality Management, LLC (OHM) and including Exhibits A through H thereof to wit: Exhibit "A" City -UNT Land Lease, Exhibit "B" City -OHPD Convention Center Sublease, Exhibit "C" OHPD -UNT Land Lease, Exhibit "D" Preliminary Site Plan, Exhibit "E" Professional Services Agreement for Constriction- Manager -Agent (CMA), Exhibit "F" Professional Services Agreement - Architect or Engineer, Exhibit "G" Contractor Payment Guidelines, Exhibit "H" Hospitality Management Guidelines; and providing and effective date. Jon Fortune, Assistant City Manager, presented the action item for council consideration. Staff and Council had been discussing this project for a number of months and the final documents were being presented for Council consideration. He reviewed the project overview in terns of the hotel and convention center and also included the convention center financing. He presented an illustration of the convention center feasibility and timeline for the project. Mayor Burroughs asked where the final moment was when the city closed off any discretion and there was no more decision making to be made. Fortuned stated it would be when the City issued the debt. There would be no going back after that. Once the debt was sold, the project was a go. City of Denton City Council Minutes December 10, 2013 Page 6 Council Member Gregory stated that there was an on -going debate from people opposed to the project that city taxpayers would be paying for the hotel and convention center. It had already been explained that the City was not paying for the hotel just for the convention center but he asked Fortune to review where the money coming from to retire the debt. Fortune stated that $29 million would be issued for the convention center debt service payment which would be paid from project revenue. Take the debt service, apply the hotel tax and that tax would also go towards the debt. The sales of food and beverages in the general sales tax would also go towards the debt plus property tax. A rent payment would make up the difference between the other revenues and the debt service. Council Member Gregory questioned what would happen if the County and the DISD did not participate in the TIRZ. Fortune stated that participation was not determined at this time but if it was less than determined, it would affect the rent calculation. Mayor Pro Tem Kamp motioned, Council Member King seconded to adopt the substitute ordinance and the supporting documents. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. 2. Consider nominations /appointments to the City's Boards and Commissions A. Citizens Bond Advisory Committee Mayor Pro Tem Kamp appointed Jo Williams Council Member Roden appointed Lilyan Prado - Carrillo Council Member King appointed Karen Meredith Council Member Engelbrecht appointed Mary Beth Cottingham 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 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 taken, 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 reminder 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 Engelbrecht thanked city employees who worked in the recent bad weather. City of Denton City Council Minutes December 10, 2013 Page 7 Council Member Gregory requested a final report on the number of outages during the storm and after. City Manager Campbell stated that staff was currently working on such a report for Council. Following the completion of the Special Called Session, the Council convened in a Closed Session at 7:00 p.m. Closed Session A. Deliberation regarding personnel matters - Under Texas Government Code Section 551.074. 1. Deliberate and discuss the evaluation, duties, discipline, procedures, and contracts of the Municipal Court Judge, City Attorney, and City Manager. With no further business, the Council returned to Open Session and the meeting was adjourned. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES December 17, 2013 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, December 17, 2013 at 3:00 p.m. in the Council Work Session Room. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member Roden, Council Member Hawkins ABSENT: Council Member King 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 December 17, 2013. Council Member Gregory asked how the fair market value was determined for Consent Agenda Item M. Phil Williams, General Manager -DME, stated that the Communications Staff looked at other leases for the going rate. This lease was for additional tower space at McKenna Park. Mayor Burroughs stated that Council Member King requested that Consent Agenda Items D, E and F be pulled for separate consideration. Mayor Burroughs asked about Item H and stated that although there had been numerous communications to get individuals to respond, only two responses had been received. He asked about the process for soliciting responses to the bid. Scott Payne, Risk Manager, stated that last year, they had only four responses. There were not many companies in the stop loss insurance business and not much was done on the local level. Council Member King arrived at the meeting. Receive a report, hold a discussion and give staff direction regarding the future of Water Works Park. Emerson Vorel, Director of Parks and Recreation, stated that staff needed direction from Council regarding the direction to take with the Water Works Park (WWP). The operating agreement for this facility called for any revenue in excess of operating expenses from the WWP be used to offset operating losses at the Natatorium. It was anticipated that the Natatorium would operate at a deficit because its primary use was training and competition for DISD athletics, not revenue generation. Although the WWP had generated small amounts of revenue in excess of operating expenses in most years, the total shortfall averaged $777,414 per year for the last four years. Per the operating agreement, the DISD reimbursed the City for 50% of that loss. Several factors at the WWP limited expanded revenue potential. Those included (1) there was no outdoor pool, (2) there was no outdoor lap swimming which was one of the major points brought out in the WWP Survey, (3) there was a limited number of elements, (4) there had not City of Denton City Council Minutes December 17, 2013 Page 2 been any upgrades or additions to the WWP while other water parks tried to add or upgrade every other year to keep the park new and exciting, and (5) there was only a temporary concession stand operating out of a small trailer which limited what could be sold. Staff was asking Council whether they wanted to explore expansion and quality of life issues at the WWP. The Parks and Recreation Department had requested $4.2 million be included in the 2014 CIP program to add a wave pool, a large interactive stricture and permanent concession stand. If Council did not want to pursue the expansion and upgrade, staff would remove those items from the CIP program. Mayor Pro Tem Kamp questioned if staff was looking for expansion or the removal of some features. Vorel indicated that there was plenty of room on the site for expansion. Council Member Roden asked how the Denton facility compared to other facilities in terms of return users. Vorel stated that they saw a lot of return users and season passes sold. He felt that other facilities also saw a mixture of one time or multiple users. Council Member Roden asked about the concessions stand in the trailer and if the facility was limiting the number of options sold and keeping down interest. Vorel stated that nothing could be fried in the trailer so staff was creative on the type of items that appear to be fried. Council Member Gregory asked if the plan for upgrading included doing the upgrades all at once or over the course of several years to freshen the park over several years. Vorel stated that the vision was to have enough money to build the wave pool, interactive stricture and the concession stand for this bond issue. The design money would be in one year and the constriction money the next year. Then a year or two later add other facilities. Council Member King asked if the commitment to upgrade the park could be done through the General Fund rather than a bond issue. Vorel stated that he did not know if adding these amenities would make the facility self - supporting which was a goal for the General Fund. Council Member Gregory stated that if the facility were sold, the City might have to buy the DISD portion of the natatorium and maybe the property as it was DISD property. Council Member Engelbrecht asked if a new interactive feature were added, would the current one be taken out. Vorel stated yes that the vision was for a 4 -5 story facility. The small interactive feature would stay. City of Denton City Council Minutes December 17, 2013 Page 3 Mayor Burroughs felt that the constriction could be done over a number of years to keep it fresh. The funding should be put in the CIP as it was a community asset. It was considered a park and a resource to the community. Each element of a park had its own community connection from ball fields to the water park. He suggested getting feedback from the Citizens Bond Committee on their feelings on the viability of increasing the water park. He also suggested having separate elements in the bond proposal and not a lump sum in the bond funds. The elements could be prioritized within the options for the best value. Council Member Gregory asked about the use of mandatory park dedication fees in the area. Vorel stated that those had to be used for facilities in the area of the development. Council Member Roden suggested highlighting times when there were reduced rates or special rates for the park. Council Member Engelbrecht suggested encouraging a bus stop in the area. 4. Receive a report, hold discussion and provide direction on the consultant contract for implementation of the Road Impact Fees. PS Arora, Assistant Director of Wastewater, stated that staff had made several presentations to the Council on the land use assumptions. The contract under consideration was for a road impact fees consultant contract and not a road maintenance fee. At the September 2013 meeting, Council directed staff to get input from the Developer's Committee before proceeding with engaging a consultant for implementation of the impact fees. Staff made a presentation to the Developer's Committee on November 15th. The Committee gave a unanimous support on proceeding with the road impact fees with a request that there be presentations to the Developer's Committee during the progress of implementation of the impact fee study Proposal request for Kimley -Horn and Associates (KHA) — The City purchased the rough proportionality model from KHA in 2009. Staff had been using this model for street exactions when a request for proportionality was submitted by a developer. This rough proportionality model would be an integral part of the impact fee ordinance. Highlights of the KHA proposal — the proposal included (1) project initiation and management, (2) land use assumptions, (3) master plan review and impact fee capital improvements plan, (4) maximum fee calculations and rate analysis, (5) roadway impact fee study document and adoption process, and (6) administration tools. Staff needed direction from Council on how much interest there was to do an infill area and a TIF area. A consideration might be to not charge impact fees in a larger area or just not charge in a smaller downtown area. Council Member King asked if the study would also discuss collector streets and what would be reasonable for those types of streets. Arora stated that what streets classifications might have to be reduced would be looked at as the process progressed. City of Denton City Council Minutes December 17, 2013 Page 4 Mayor Burroughs noted that the vast majority of the area in the central part of the City was redevelopment as opposed to large tracts of vacant land. Re- developing in this type of area was expensive and with the addition of a road impact fee would just increase the expenses for redevelopment. Arora stated that the existing use could be examined and if comparable or a small increase would be needed, the impact fee would not be charged. Staff could look at these areas and draft a proposal for Council consideration. KHA would prepare existing, build -out and then the 10 -year land use assumptions. Based on the Mobility Plan, KHA would analyze the existing capacity of the roads and project the capacity requirements for the 10 -year impact fee planning window. Based on the existing capacity available and the project capacity required, KHA would develop a 10 -year impact fee capital improvements plan. KHA would also assist with the adoption of the Land Use Plan and the 10- year Impact Fee Capital Improvement plan at the Capital Improvement Advisory Committee (CIAC) and Council meetings. After that, the impact fee calculations would be presented to the CIAC and Council. Based on direction from the CIAC and Council, staff would prepare road impact fee ordinance for adoption in public hearings. Administrative Implementation of the Road Impact Fees — KHA would create a Road Impact fee estimator spreadsheet tool to assist in calculating a development's transportation impact fee based on the impact fee rates adopted. Based on the ordinance adopted, KHA would update the existing roadway rough proportionality worksheet. This updated worksheet would capture the City's existing rough proportionality policies and the potential use of the maximum roadway impact fee as a basis for making rough proportionality determinations. Impact Fee Procedures — procedures would include (1) approval of a Council resolution to consider impact fees (2) appointment of a Capital Improvements Advisory Committee, (3) land use assumptions, CIP and impact fee recommendation from the CIAC, (4) public notice of hearings 30 days in advance, (5) reports made available to the public and (6) public hearings and adoption. There would be separate hearings for the land use assumptions /CIP and impact fees. The impact fee ordinance would be approved within 30 days. The proposal was to complete the land use assumptions, impact fee capital improvements plan and maximum impact fee calculations in six months. Staff was targeting the January 7, 2014 council meeting for approval. Council Member Roden stated that another aspect was the walkable nature of the streets and suggested keeping that in the plan and part of the evaluation. Mayor Burroughs stated that a Downtown walking area was a strategic goal for the City and suggested building those amenities to get people to the area. Council Member Engelbrecht suggested building in an incentive system for bikes. Arora stated that staff would look at the Mobility Plan and related bike sections to see if any amendment was needed to establish bike lanes. Consensus of the Council was to proceed with the contract and ordinance for the January 7th council meeting. City of Denton City Council Minutes December 17, 2013 Page 5 Following the completion of the Work Session, the Council convened in a Closed Session at 4:25p.m. to consider the items listed below. 1. Closed Meeting: A. Consultation with Attorney - Under Texas Government Code Section 551.071 1. Consultation with the City's attorneys regarding legal advice concerning Agenda Item 6.A. where a public discussion of this legal matter would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. 2. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with Gas Well Ordinance regulation of gas well drilling and production within the City Limits and the extraterritorial jurisdiction, including Constitutional limitations, statutory limitations upon municipal regulatory authority, 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. B. Deliberations regarding Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. I. Receive a presentation from Denton Municipal Electric ( "DME") staff regarding public power utility competitive, financial and commercial matters pertaining to Texas Municipal Power Agency, a Joint Powers Agency ( "TMPA "), being a generation resource owned in common by the City of Denton, Texas, which holds a 21.3% interest in the same; including without limitation, plans, proposals, possible revisions to the power sales contract, system improvements, fuel contracting, other contracting issues, the fixed and variable costs of operation of the generation unit, and capital improvement plans for the TMPA generation unit. Discuss, deliberate and provide staff with direction. C. Deliberations regarding Real Property - Under Texas Government Code Section 551.072; and Consultation with Attorneys - Under Texas Government Code Section 551.071. 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 James Perry Survey, Abstract No. 1040; John Scott Survey, Abstract No. 1222; John Bacon Survey, Abstract No. 1541; and the John Davis Survey, Abstract No. 326, City of Denton, Denton County, Texas, and generally located along Western Boulevard between Airport Road and Jim Christal Road. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and City of Denton City Council Minutes December 17, 2013 Page 6 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. 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 M.E.P. & P.R.R. Survey, Abstract No. 1475, and the Mary Austin Survey, Abstract Number 4, City of Denton, Denton County, Texas, and located generally running north from the Spencer Electric Substations to McKinney Street. 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. 3. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests located (1) in the in the O.S. Brewster Survey, Abstract No. 56, located generally in the 1700 block of South Bonnie Brae Street; and (2) in the A. Tompkins Survey, Abstract Number 1246, Denton County, Texas, located generally in the 1800 block of South Bonnie Brae Street, all property interests within the City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests 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. (Bonnie Brae Street Widening and Improvements project) 4. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests located in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and located generally in the 2100 block of South Mayhill Road. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests 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 the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would City of Denton City Council Minutes December 17, 2013 Page 7 jeopardize the City's legal position in any administrative proceeding or potential litigation. (Mayhill Road Widening and Improvements project) D. Deliberation regarding personnel matters - Under Texas Government Code Section 551.074. 1. Deliberate and discuss the evaluation, duties, discipline, procedures, and contracts of the Municipal Court Judge, City Attorney, and City Manager. This item was not discussed. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney, Denton, Texas./ 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 There were no proclamations /presentations for this meeting. 3. CITIZEN REPORTS There were no citizen reports for this meeting. 4. CONSENT AGENDA Mayor Burroughs stated that Items D, E and F would be removed from the Consent Agenda and considered individually. Council Member Roden motioned, Council Member Hawkins seconded to approve the Consent Agenda and accompanying ordinances and resolutions with the exception of Items D, E. and F. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. Ordinance No. 2013 -335 A. Consider adoption of an ordinance of the City of Denton, Texas, amending Ordinance No. 2012 -268, prescribing the number of positions in each classification of Police Officer; providing a repealer clause; and declaring an effective date. Resolution No. R2013 -040 B. Consider approval of a resolution of the City Council of the City of Denton to City of Denton City Council Minutes December 17, 2013 Page 8 form a Regional Law Enforcement Mutual Aid Task Force Agreement with other area law enforcement agencies for the purpose of providing and receiving law enforcement assistance; and providing an effective date. Ordinance No. 2013 -336 C. Consider adoption of an ordinance accepting competitive proposals and awarding public works contract for the supply and installation of a Prefabricated Communications Shelter for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5343 - awarded to GFRC Shelters in the not -to- exceed amount of $119,637. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -340 G. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a First Amendment to a Professional Services Agreement for Engineering Services by and between the City of Denton, Texas and Black & Veatch Corporation, for Electric Engineering Services relating to the Arco Substation as well as other Denton Municipal Electric projects; authorizing the expenditure of funds therefor; providing an effective date (File 5089 in the additional amount of not -to- exceed $781,400; aggregating a total not -to- exceed $1,345,400). The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -341 H. 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 Individual and Aggregate Stop Loss Insurance for the City of Denton's Self- Funded Health Benefits Program; providing for the expenditure of funds therefor; and providing an effective date (RFP 5425 - Individual and Aggregate Stop Loss Insurance for the City of Denton awarded to UnitedHealthcare Insurance Company, in the annual estimated amount of $1,074,789.48 for a five (5) year estimated expenditure of $5,373,947.40). Ordinance No. 2013 -342 L Consider adoption of an ordinance of the City of Denton, Texas, authorizing the City Manager to execute the First Amendment to a Contract by and between the City of Denton, Texas, and Open Systems International, Inc. (OSI) regarding a Licensing Agreement for the Electric Reliability Council of Texas ( ERCOT) Market Interface, which is available from only one source, and is exempt from the requirements of competitive bidding under the provisions of Section 252.022, Texas Local Government Code, for software relating to bidding and pricing information for purchased power, generation and fuel, and ERCOT bids, price, offers, and related services for purposes of supporting the Energy Management Operation of Denton Municipal Electric (DME); providing for the expenditure of funds therefor; providing an effective date (File 4074 - awarded to Open Systems International, Inc. in the additional not -to- exceed amount of $301,240, aggregating a total amount not -to- exceed $504,659). The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -343 J. Consider adoption of an ordinance of the City of Denton, Texas prohibiting City of Denton City Council Minutes December 17, 2013 Page 9 parking on both sides of Fry Street from its intersection with Oak Street to its intersection with Scripture Street; providing a repealer clause; providing a savings clause; providing for a penalty not to exceed $500 for violations of this ordinance; providing that violations of this ordinance shall be governed by Chapter 18 of the Code of Ordinances of the City of Denton; and providing for an effective date.. The Traffic Safety Commission recommends approval (5 -0). Ordinance No. 2013 -344 K. Consider adoption of an ordinance of the City of Denton, Texas authorizing and approving a Memorandum of Understanding by and between the City of Denton, Texas and Mesquoakee, LLC, a Texas limited liability company for the provision of electric services for the development known commonly as the Hills of Denton; providing the City Manager with authority to perform said Memorandum of Understanding and to expend funds as necessary; providing for an effective date. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -345 L. Consider adoption of an ordinance of the City of Denton, Texas authorizing and approving the third extension to the agreement by and between the City of Denton, Texas and Denton 288, L.P. for the Provision of Sanitary Sewer and Water Facilities" originally entered into on the 5th day of June, 2007, said third extension being entered into by the City and MESQUOAKEE, LLC., the present owner of record of the affected realty; providing the City Manager with authority to perform said third extension and to expend funds as necessary; providing for retroactive confirmation and approval thereof. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -346 M. Consider adoption of an ordinance of the City of Denton, Texas, authorizing the City Manager to execute Amendment No. 3 to Tower Lease, by and between the City of Denton, Texas and Dallas, MTA, L.P., d /b /a/ Verizon Wireless respecting certain tower space on the McKenna Park Tower; providing for the expenditure of funds therefor; providing for an effective date. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -347 N. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to surrender to DRP Country Lakes, LLC that certain irrevocable standby letter of credit dated October 1, 2009 drawn on J.P. Morgan Chase Bank in the amount of $176,143.93 in which Wynne /Jackson Lakes Development, L.P. is the applicant and the City of Denton, Texas is the beneficiary; and further releasing DRP Country Lakes, LLC, a successor real property owner to Wynne /Jackson Lakes Development, L.P. from any financial obligation regarding that certain letter agreement dated December 29, 2000 by and between the City of Denton and Wynne /Jackson Lakes Development, L.P.; authorizing the acceptance of a replacement irrevocable standby letter of credit from the present owner of that certain real property being generally known as Country Lakes, in the City of Denton, Texas, Bloomfield Homes, L.P., in the amount of $176,143.93; providing City of Denton City Council Minutes December 17, 2013 Page 10 an effective date. Ordinance No. 2013 -348 O. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager or his designee to execute an Easement Purchase and Abandonment Agreement (herein so called), as attached hereto and made a part hereof as Exhibit "A ", by and between Terrano Realty, Inc., a Texas corporation (the "Owner "), and the City of Denton (the "City "), regarding the sale by Owner and purchase by the City of three easements consisting of 4.499, 0.223, and 2339 acres, respectively, being situated in the M.E.P. & P.R.R. Survey, Abstract No. 1475, and the Mary Austin Survey, Abstract Number 4, City of Denton, Denton County, Texas, located generally running north from the Spencer Electric Substations to McKinney Street, for the public use of expansion, constriction, maintenance, operation, and improvement of electric transmission and distribution lines, facilities, and strictures (herein, the "Project "), for the combined purchase price of Four Hundred Fifty Four Thousand Two Hundred Forty Three and No /100 Dollars ($454,243.00); 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 Easement Purchase and Abandonment Agreement; authorizing the expenditure of funds, therefor; and providing an effective date. (69kV Transmission Line Re -build Project) The Public Utilities Board recommends approval (6 -0). Approved the minutes listed below P. Consider approval of the minutes of: October 1, 2013 October 7, 2013 October 14, 2013 October 15, 2013 October 22, 2013 October 29, 2013 November 4, 2013 November 5, 2013 Ordinance No. 2013 -349 Q. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of two (2) NP323I 8 -inch pumps for the City of Denton Cooper Creek Pump Station, 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 5431 awarded to Xylem Water Solutions USA, Inc. in the not -to- exceed amount of $62,741.35). The Public Utilities Board recommends approval (6 -0). Items D, E, and F were considered. Ordinance No. 2013 -337 D. Consider adoption of an ordinance of the City of Denton, Texas amending the City of Denton City Council Minutes December 17, 2013 Page 11 Fiscal Year 2013 -2014 Budget and Annual Program of Services of the City of Denton to allow for an adjustment to the Capital Improvement Program of one million seven hundred and fifty thousand dollars ($1,750,000), increasing appropriations from $323,657,313 to $325,407,313, to provide for costs associated with Phase I of the Taxilane Quebec Hanger Development Project for the City's Airport; declaring a municipal purpose; providing a severability clause; an open meetings clause; and providing for an effective date. Ordinance No. 2013 -338 E. 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 Airport Fund with Certificates of Obligation with an aggregate maximum principal amount not to exceed to $1,750,000 to allow for engineering and constriction services for Phase I of the Taxilane Quebec Hanger Development Project; and providing an effective date. Ordinance No. 2013 -339 F. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement for Aviation Engineering and Consulting Services for the City of Denton Enterprise Airport with Aguirre Roden, Inc. in an amount not -to- exceed $272,804; providing for the expenditure of funds therefor; and providing an effective date (File 5357 - awarded to Aguirre Roden, Inc.). Council Member King felt that as an investor this proposal might be a good investment for the City but for the City government to be involved, it might be a bad choice. He did not like taking the place of private investment as it possibly could push out private investors or future investors who did not want to compete against the City. Mayor Burroughs noted that there was a long waiting list for hanger services at the Airport. Without additional space, progress would be regressive and the Airport needed to support itself. He felt it was necessary to utilize the resources to the best possible to bring in funds. Mayor Pro Tem Kamp motioned, Council Member Engelbrecht seconded to adopt the ordinance. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. 5. ITEMS FOR INDIVIDUAL CONSIDERATION - CONSIDERATION OF THE USE OF EMINENT DOMAIN TO CONDEMN REAL PROPERTY INTERESTS Ordinance No, 2013 -350 A. 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 mineral estate, of a 0.08 acre tract, (ii) a utility and slope easement, encumbering 0.03 acre, (iii) a slope easement, encumbering 0.01 acre; and (IV) a temporary constriction, City of Denton City Council Minutes December 17, 2013 Page 12 grading and access easement, encumbering 0.01 acre, 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 1800 block of South Bonnie Brae Street and situated in the A. Tompkins Survey, Abstract No. 1246, City of Denton, Denton County, Texas, as more particularly described in Exhibit "A ", 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 therefor; making findings; providing a savings clause; and providing an effective date. (Parcel 18 - Thomas - Bonnie Brae Widening and Improvements proj ect) Paul Williamson, Real Estate Manager, presented the details on the item. He stated that this was the use of eminent domain on the Bonnie Brae Widening and Improvements Project. The City was seeking to acquire tracts from the Thomas family but as there was no clear title the eminent domain process was necessary. Council Member Engelbrecht motioned "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 state, with waiver of surface use related to the mineral estate, to a 0.08 acre tract; (2) a utility and slope easement, encumbering 0/03 acre; (3) a slope easement, encumbering 0.01 acre; and (4) a temporary constriction, grading and access easement, encumbering 0.01 acre, all tracts being situated in the A. Tompkins Survey, as more particularly described in Exhibit "A ", to the ordinance now displayed to the audience, for the public use of widening and expansion of Bonnie Brae Street in the City of Denton, Texas ". Council Member King seconded the motion. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. Real property description is attached as Exhibit 1 to the Minutes. 6. PUBLIC HEARINGS A. Hold a public hearing and reconsider adoption of an ordinance of the City of Denton, Texas, providing for a zoning change from a Neighborhood Residential 2 (NR -2) zoning district and land use designation to a Neighborhood Residential 3 (NR -3) zoning district and use classification on approximately 75.3 acres of land located on the south of Ryan Road, north of the Kansas City Southern Railroad, approximately 950 feet east of FM1830 and approximately 800 feet west of Forrestridge Drive, 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 clause and an effective date (Z13 -0006, Kelsoe Tract). The Planning and Zoning Commission recommends approval (6 -1). The City Council previously denied (3 -3). Brian Locldey, Director of Planning and Development, presented the details of the project. The proposal would amend the zoning classification from NR -2 to NR -3. He reviewed the location City of Denton City Council Minutes December 17, 2013 Page 13 of the property and the history of the project. The Planning and Zoning Commission held a public hearing on September 25th with a 6 -1 approval. The Council held a public hearing on November 5th which ended in a 3 -3 tie vote which was a denial. The Council then passed a motion to rehear the item on November 19th. The future land use map, the current zoning map, proposed zoning, and location of gas wells were reviewed. On November 19th, Council directed staff to work with the applicant to buffer the future homes and notify home purchasers of the gas well sites on the property. Discussion of Conditions - Gas Well Location and Buffering • Homes would be located a minimum 200 feet from the gas well drilling and location production site, per code. • A type D buffer would be required between residential and industrial uses. Notification options - staff discussed 4 options to notify home purchasers with the developer on November 26th. Option A would put a note on the plat identifying gas well drilling and production sites. The developer would be willing to pursue this option. Option B would have the location of gas well drilling and production sites identified in the Covenants and Deed Restrictions of the Homeowner's Association. This option was more likely to be seen by homebuyers but still might not be read. The developer was willing to pursue this option. Option C would file a separate notice with Denton County noting the location of gas well drilling and production sites for all properties within 1200 feet. This notice was intended to come up on a title search. This would be a document that would appear in title search so every subsequent purchaser would be notified. However, not everyone read documents at closing of their home and may translate to increased interest rates from lenders. The developer was not willing to pursue this option. Option D would have location of gas well drilling and production sites noted in the sales contract from the builder to the first homeowner. This would notify the first purchaser of the home from the builder but no any subsequent purchasers. The developer was not willing to pursue this option. One other condition relating to gas well drilling and operations related vehicle traffic not being allowed to use platted constricted roadways within the property to access the Pittner Pad sites had been removed. Staff had worked with the developer for a better access to the site. Locldey reviewed site photos of the property, zoning analysis, analysis criteria, and the Planning and Zoning Commission recommendation. The Planning and Zoning Commission recommended approval with the following conditions: • a Type D landscape buffer be provided between the single family the existing drilling site on the property • purchasers of lots in the subdivision that were within 1200 feet of the existing gas well pad site were to be notified about the location of the Pittner Pad Site through all of the following mechanisms: o (a) a note placed on the residential plat identifying the Pittner Pad site. Said note would include a statement that advised lot purchasers the existence of producing City of Denton City Council Minutes December 17, 2013 Page 14 wells, as well as the possibility that the well on the Pittner Pad Site may be re- drilled and/or re- fracked in the future o (2) Bob Shelton Enterprises would include in the subdivision's Declaration of Restrictive Covenants or a restriction in the Deeds for all subdivision lots the same information described in (a) o A separate recordable instrument that provided the same information described in (a) would be filed with the Denton County Clerk's Office. Before recordation, Bob Shelton Enterprises would submit the proposed instrument to the City Attorney's Office for its review and approval of the instrument. • every sales contract between the builder and the first home purchaser of each lot would be provided a copy of the city approved plat that depicts the location of the Pittner Pad Site in relation to the lot being purchased, including the plat information described in (a) above. Council Member Roden stated that the last condition was being removed and put in the platting process. He questioned how much different would it be to include it in the ordinance. Locldey stated that two gas wells already had access. When the area was platted, it would be platted over the easement. Staff would like to explore other options to access the sites and remove access from the interior of the site. Until the property was platted, the access would remain the same as it currently was. Council Member Gregory questioned the negotiations regarding the other three wells. Locldey stated that the negotiations involved the surface rights that would preclude drilling in the future. Council Member Gregory expressed concern about the naming of the wells in the ordinance. City Attorney Burgess stated that the ordinance addressed the Pittner pad sites. The developer was seeking subordination agreements for development of the property for the other three sites. The ability to move forward with the development hinged on moving forward with the negotiations for the surface rights. Council Member Gregory stated that in order for him to approve the proposal, he needed assurance requiring notification of any potential gas well and currently that was not the case. The Mayor opened the public hearing. Bob Shelton, Applicant, spoke in favor. He indicated that he had just reviewed ordinance and was concerned with a few issues it contained. Council Member Gregory stated that he was concerned about the removal of the provision regarding gas vehicles on the platted streets. City of Denton City Council Minutes December 17, 2013 Page 15 Shelton stated that if there was a pickup trick that was oil related, it could not drive down the street. Beyond that, oil vehicles were driving all over the City on city streets. He wanted opportunity to visit with the neighbors for an alternate solution. He did not know all the particulars at this point in time. Council Member Gregory asked what would happen if an alternative route was not available. Shelton stated that he would visit with the neighbors if he couldn't use the city street. It was in their best interest to keep the traffic off the streets but he couldn't say for certain at this point in time what the process would be. Council Member Gregory asked about the other three well sites. Shelton stated that they were in dialog with lease holders of the property. In the event he could not get a surface waiver he would use the 250 notification with the current zoning. Mayor Burroughs asked if it would be possible to place all five sites instead of the two sites in the ordinance or further condition the ordinance on getting those three sites included. Shelton stated that he did not have a problem adding the sites to the ordinance. Council Member King asked if the two sites would still be developed or would Shelton pass on the development if he couldn't get the surface rights. Shelton stated he would develop as is and agreed with the notices about the sites. Paul McCracken with Kimley Horn and Associates spoke in favor of the proposal. He displayed the existing 2 sites with a 250 foot buffer, with a 1200 foot buffer, the 5 gas well sites and approved gas well sites with a 1200 buffer. He showed what the NR -2 zoning would look like if they were not trying to rezone. He stated that the only way to do the NR -3 zoning was by having the three well sites go away. If they couldn't go away, then they would have to do NR -2 zoning. Council Member Engelbrecht asked how many lots could be developed with the NR -2 with all wells. If the zoning was changed to NR -3 and they did not get agreements, would more lots be put in the area. McCracken stated that with NR -3 they could put more lots. If they could not get the surface rights, they would only build the NR -2 size. Council Member Gregory stated that with the Pittner, Fry IA and Halo wells, there currently was a 250 foot restriction with the pad site but there was no permit for a well. McCracken stated that was correct, that they were shown on the current plat but there were no wells. Council Member Gregory stated that Option B for notification centered on deed restrictions but in the substitute ordinance, Option B did not mention anything about a homeowner's association. City of Denton City Council Minutes December 17, 2013 Page 16 McCracken stated that he was in agreement with filing the deed restrictions on the lots whether or not there was a homeowner's association. Zack Thompson, 1750 Valley View, 4200, Dallas, 75243, spoke in favor. He stated that the notices needed form as to function. The Covenants, Codes and Restrictions (CCR), option B and plat notice were form and function. Option C was not viable. A loan closer would have an issue issuing a loan with that option. He was not sure the City had the ability to force the altering of closing documents. Most transactions over next 10 years would be from homeowner to homeowner and he felt their obligation was only with the first buyer. Homeowners review in details their CCR more than other documents recorded in the title. He questioned what would happen if the gas well changed. Amending the homeowner's association bylaws was easier to do than releasing the documents and adding a new document. He was not sure a document could be amended after closing. Mayor Burroughs asked about condition D that would convey information to at least the first purchaser. He stated that most sales contracts were standardized and he questioned if there was any other way to include this information at the point of sale. Thompson stated that by state law, a homebuyer had to be issued the CCR or bylaws at the time of the contract. He did not want an obligation via an ordinance with his sales contract which was generated by his home office. He felt that all his counterparts would have the same problem. He questioned what type of enforcement would be associated with the condition. Council Member Gregory stated that he found it hard to understand how a notice about a piece of property would cause a problem during a title search. Thompson stated that he had asked those who worked with title searches. They indicated that if something different appeared in a title search, questions might arise. He felt it would be best to keep as few things as possible from clouding the title but also notifying the homeowners. Council Member Roden asked if Thompson had built near gas wells before and if homebuyers were notified in those situations. Thompson stated that he had built in Fort Worth and Keller. In Fort Worth, the distance was less than 250 feet. Notifying the buyer depended on the buyer profile. More time may be spent with those buyers who did not know about the situation. Many buyers came in with knowledge already. Mayor Burroughs asked what types of notification he done before to notify potential buyers of the proximity of a well. Thompson stated that he never had a city obligate to him notify a homebuyer. The plats showed show the gas wells or future pad sites. The following individuals also spoke during the public hearing: Steve Friedson, 2044 W. Oak, Denton, 76201 - spoke in opposition. City of Denton City Council Minutes December 17, 2013 Page 17 Cathy McMullen, 805 Ector, Denton, 76201 - spoke in opposition. Ed Soph, 1620 Victoria, Denton, 76209 - spoke in opposition. Elise Ridenour, 2044 West Oak, Denton, 76201 - opposed Council Member Roden stated Shelton had sent the Mayor a letter indicated that he was willing to put notification in each sales contract. He questioned why that had changed. Shelton stated that he did not know it would be contrary to the sales people /builder. Mayor Burroughs stated that Shelton's letter suggested language prepared with an attached map. Shelton stated that was the language to put in the CCR with a map. Mayor Burroughs asked what would happen if the three wells stayed. Shelton stated he would have to resend the notices. Mayor Burroughs questioned if language could be provided for both situations. Language would be needed if the three wells did not go away. Shelton stated that if the wells did not go away, he would go ahead with NR -2. Mayor Burroughs stated if the three sites were not eliminated, the NR -3 would go away. Shelton stated he would plat the current NR -2 zoning. City Attorney Burgess stated that she was working on some alternative wording to consider. Mayor Burroughs stated that any language in the ordinance would have to provide for that alternative. Council Member Hawkins stated possible language might be that if the NR -3 zoning was approved, the number of homes could be capped at 150 unless the wells went away. He asked Shelton what things he had been doing with the community. Shelton stated that they had given the City a right -of -way dedication, landscaped the road right - of -way for the school, provided a 6 foot screen and bike racks and donated $30,000 to the school to use as they desired. Carol Soph, 1620 Victoria, Denton, 76209, submitted a Comment Card in opposition. The Mayor closed public hearing. Mayor Pro Tem Kamp suggested adding the names of the other three gas wells to the ordinance. City Attorney Burgess stated that language could be added naming the other sites and include a phrase in connection with the subordination of the surface use. City of Denton City Council Minutes December 17, 2013 Page 18 Locldey stated that instead of naming the wells, it might be better to identify the locations without specific names in case the property was sold and future operators changed the names. Reference the locations of the wells instead of names of the gas wells as they could change in the future. Council Member Gregory stated that it had been suggested by a citizen to develop an ordinance that would require any developer in the City developing a gas well site within 1200 foot radius of the gas well be subject to a different ordinance to provide notice to the homebuyer. He questioned if that were possible and not do it with a change of zoning. City Attorney Burgess stated that the Planning Department and Legal were heading in that direction and looking to Council specifically for the notice provisions. Council Member Gregory stated that the final configuration of the development was waiting for procurement of the surface waivers. If it was not pressing that Council conclude their deliberations this evening, he was leaning towards postponing the item to a date certain of procuring the surface rights. Shelton stated that delaying the proposal would slow down the whole process plus he had other obligations to meet in certain time frames. He recognized the concern until the issue of the surface waiver was settled but if it was going to be a 30 -60 day delay, it would be very hard on the project. Mayor Burroughs asked if Shelton would agree to conditional zoning on the acquisition of the surface waivers. Shelton stated he would be agreeable to that. Council Member King suggested approving the proposal with a surface waiver condition with Items 1 and 2. Council Member Gregory stated that the developer indicated that he could not go forward with project without surface waivers and if there were no surface waivers, he didn't need the zoning change. He felt the Council did not need to act until surface waiver issue was resolved. Shelton stated that a lot of money had already been spent to get to this point. He had to have the surface waivers to make this work. Mayor Burroughs asked if the surface wells would subordinate the rights for the entire property. Shelton replied correct. Mayor Burroughs stated that a condition was needed for the zoning that presumed the elimination of the other sites within the subject property. If not, then they did not get the requested zoning. Shelton stated that if the zoning was successful but they did not get the surface waivers, then he would be through with the tract. He could not develop the property without the surface waivers. City of Denton City Council Minutes December 17, 2013 Page 19 Council suggested various wording scenarios for dealing with the surface waivers and the associated conditions in the ordinance. City Attorney Burgess suggested that Council consider laying the item on the table, proceeding with the other items on the agenda and then go into Closed Session to discuss the proposal. Mayor Pro Tem Kamp motioned, Council Member Gregory seconded to lay the item on the table. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. Council continued with the items listed on the agenda. Ordinance No. 2013 -352 B. Continue a public hearing and consider adoption of an ordinance of the City of Denton, Texas amending Subchapter 22 of the Denton Development Code, pertaining to certain definitions and to the sequence of permits necessary for constriction, drilling, and production activities; providing a cumulative clause; providing a severability clause; providing for a penalty; and an effective date. The Planning and Zoning Commission recommends approval (7 -0). (DCA13- 0003) Brian Locldey, Director of Planning and Development, presented the details of the item. The purpose of the item was to amend Subchapter 22 of the Denton Development Code pertaining to definitions and sequence of permits for gas well drilling and activities. He reviewed the background information of the amendment. The intent of the amendment was to clarify current practice and to remain consistent with the updated fire code. Amendment 1 revised the definition of a gas well permit, identified the issuing entity as the Planning and Development Department and included activities described in Development Code clarifying the City's current practice. Amendment 2 added a number 5 to the requirements for authorization for gas well drilling to include an approval of a fire code operational permit. That permit was the last step prior to drilling the well. Council Member Roden questioned the vested rights and whether these amendments would be subject to vested rights claims. Locldey stated that these amendments were in the zoning portion of the ordinance and would have to be followed. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. City of Denton City Council Minutes December 17, 2013 Page 20 Council Member Hawkins motioned, Mayor Pro Tem Kamp seconded to adopt the ordinance. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. 7. CITIZEN REPORTS There were no citizen reports for this section of the meeting. 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 taken, 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 reminder 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. There were no items presented. B. Possible Continuation of Closed Meeting under Sections 551.071 - 551.086 of the Texas Open Meetings Act. Mayor Burroughs announced that the Council would convene in Closed Session to discuss the Public Hearing item listed on the agenda as Item 6A. Council convened in Closed Session at 9:25 p.m. Following the completion of the Closed Session at 9:50 p.m., the Council returned to Open Session to continue the discussion of Item 6A on the Agenda. 6. PUBLIC HEARINGS Ordinance No. 2013 -351 A. 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 mineral estate, of a 0.08 acre tract, (ii) a utility and slope easement, encumbering 0.03 acre, (iii) a slope easement, encumbering 0.01 acre; and (IV) a temporary constriction, grading and access easement, encumbering City of Denton City Council Minutes December 17, 2013 Page 21 0.01 acre, 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 1800 block of South Bonnie Brae Street and situated in the A. Tompkins Survey, Abstract No. 1246, City of Denton, Denton County, Texas, as more particularly described in Exhibit "A ", 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 therefor; making findings; providing a savings clause; and providing an effective date. (Parcel 18 - Thomas - Bonnie Brae Widening and Improvements project) Mayor Pro Tem Kamp motioned, Council Member Gregory seconded to remove the item from the table. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. City Attorney Burgess suggested the following wording for the item: (1) adding the plat as shown with a reference to the attachment rather than the sites; (2) in Section 2, paragraph 2, second line for notice provisions add wording to the effect that the developer shall notify lots in the property within 1200 of the gas well sites depicted on the exhibit unless such well site was subject to subordination agreement of the mineral interest of surface use. Mayor Burroughs asked if the wording regarding the subordination of the surface use eliminated the drilling sites or just shifted control of the surface rights. City Attorney Burgess stated that it would be the subordination to the surface rights. Mayor Burroughs suggested "unless eliminated through subordination agreement ". It would provide the same concept. City Attorney Burgess continued that the proposed language would include a declaration of covenants in 2A and would strike the condition of 2c, 2d, and 3 under Section 2. Council Member Engelbrecht state that he would be voting against the motion as it gave up density to get notification. It would remove obstacles but there was nothing for the homeowner and homebuyer. Mayor Burroughs stated that the proposed wording was trying to accomplish something in the City by creating the ability to require notice of future owners regarding the presence of gas wells in the area. If nothing was done, NR -2 zoning would be developed. This would provide an opportunity to notify future buyers of the development situation. Council Member Gregory stated that this was a balancing of the competitive interests of mineral owners and property owners where mineral owners were more favored by current state legislation than property owners. Providing notice will be a positive for informed purchasers. Mayor Pro Tem Kamp motioned, Council Member Hawkins seconded to adopt the ordinance with the wording provided by the City Attorney. City of Denton City Council Minutes December 17, 2013 Page 22 On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Gregory, Council Member King, Council Member Hawkins — "aye ". Council Member Engelbrecht and Council Member Roden — "nay ". Motion carried with a 5 -2 vote. With no further business, the meeting was adjourned. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES December 19, 2013 After determining that a quorum was present, the City Council convened in a Special Called Closed Meeting on Thursday, December 19, 2013 at 4:00 p.m. in the Council Work Session Room. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Hawkins ABSENT: Council Member Roden 1. Closed Meeting A. Deliberations regarding Real Property — Under Texas Government Code Section 551.072; Consultation with Attorneys — Under Texas Government Code Section 551.071. 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 James Perry Survey, Abstract No. 1040, John Scott Survey, Abstract No. 1222, John Bacon Survey, Abstract No. 1541, and the John Davis Survey, Abstract No. 326, City of Denton, Denton County, Texas, and generally located along Western Boulevard between Airport Road and Jim Christal Road. 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. This item was not considered. Following the completion of the Special Called Closed Meeting, the City Council convened in a Special Called Meeting to consider the following item: Ordinance No. 2013 -353 1. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Termination Agreement (the "Agreement ") between Rayzor Investments, Ltd., a Texas Limited Partnership and Westpark Group, LP, a Texas Limited Partnership (collectively, the "Seller") and the City of Denton, Texas (`Buyer"), terminating that contract dated effective April 19, 2011, City of Denton Ordinance No. 2011 -063, relating to the sale and purchase of certain real property and real property interests located generally in the vicinity of Western Boulevard, between Airport Road and Jim Christal Road, Denton, Texas; and providing for an effective date. City Manager Campbell stated that this property was the potential site for the CHP project. The City had entered into a contract for the land rights necessary to complete an electric and natural City of Denton City Council Minutes December 19, 2013 Page 2 gas utility infrastructure project in April of 2011. The scope of the project had changed necessitating an alternative location, easements, and right of way. The contract needed to be terminated so Peterbilt could purchase the property for a major expansion. Council had discussed this proposal in an earlier Closed Session. Council Member Gregory motioned, Mayor Pro Tem Kamp seconded to adopt the ordinance. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. With no further business, the meeting was adjourned at 4:08 p.m. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS AGENDA INFORMATION SHEET AGENDA DATE: FEBRUARY 4, 2014 DEPARTMENT: DENTON MUNICPAL JUDGE'S OFFICE CM/ ACM: Robin A. Ramsay, Denton Municipal Judge SUBJECT Consider adoption of an ordinance of the City of Denton, Texas appointing Robin A. Ramsay as Presiding Judge for the City of Denton Municipal Court of Record; establishing a term of office for the Presiding Judge beginning on the 4"' day of March 2014, and extending through March 3, 2016; providing for reappointment and term of office in accordance with the Texas Constitution and applicable State statutes; authorizing the Mayor to execute a contract for term of office; and ratifying terms of contract; and declaring an effective date. BACKGROUND The Denton Municipal Court continues to experience continued growth. While the total number of cases filed has remained somewhat constant, the type and complexity of cases heard and hearings held has slowly continued to increase. Pursuant to Chapter 30.0007 of the Texas Government Code, the governing body of a home rule municipality must, when there is more than one appointed municipal judge for that municipality, appoint one of the judges as the Presiding Judge for the Municipal court. The Denton City Charter and Code of Ordinances (Section 19 -36) provides for the appointment of the position of Presiding Judge in even numbered years. Further, Chapter 29.05 of the Government Code provide that a Municipal Judge who is not appointed by the 91" day following the expiration of a term of office shall, absent action by the appointing authority, continue to serve for another term of office beginning on the date the previous term of office expired. In reality, without direct action by the Council, the term of Office for the Presiding Judge will be extended by an additional two years, by operation of law. However, it has been the custom of the Denton City Council as good stewards of public trust, to take specific action for re- appoint the municipal judges at or near the expiration of each term of office. Request for Re- Appointment of the Presiding Judge While the Council may choose to take no action, I have taken the liberty of revising an Ordinance of Appointment or Re- Appointment. This ordinance is substantially the same as in years past. This ordinance is submitted merely as a draft and is of course, more appropriately prepared by the City Attorney's office. OPTIONS The City Council may appoint any persons they feel are qualified and competent to serve in the capacity as Assistant Municipal Judge's for the City of Denton Municipal Court of Record. The Council could: (1) Choose to re- appoint Robin A. Ramsay as Presiding Municipal Court Judge for the City of Denton, Texas; or, (2) Propose alternative candidates and appoint any other individual to serve as Presiding Municipal Judge, so long as that individual met all requirements as set forth in Chapter 30 of the Government Code. RECOMMENDATION It is the recommendation of the Judge's Office that the Council re- appoint (or appoint) a Presiding Judge as required by law. It is of course, the current Presiding Judge's sincere hope that you will see fit to re- appoint the current Presiding Judge, Robin A. Ramsay, and that you authorize the Mayor to ratify the attached Ordinance Appointing Presiding Municipal Court Judge. ESTIMATED SCHEDULE OF PROJECT Effective upon appointment and adoption of ordinance. FISCAL INFORMATION The appointment or re- appointment of a Presiding Municipal Judge will have no fiscal or financial impact, as there are no additional costs or additional positions created. Any compensation will be derived from the currently budgeted amounts. BID INFORMATION Not Applicable. (Professional Services) EXHIBITS Draft Ordinance of Appointment Respectfully submitted: J 46 Robin A. Ramsay Presiding Municipal Judge Denton Municipal Court of Record No.1 sAlegal \our documents \ordinances \14\2014 ordinance appointing presiding judge.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPOINTING ROBIN A. RAMSAY AS PRESIDING JUDGE FOR THE CITY OF DENTON MUNICIPAL COURT OF RECORD; ESTABLISHING A TERM OF OFFICE FOR THE PRESIDING JUDGE BEGINNING ON THE 4th DAY OF MARCH 2014, AND EXTENDING THROUGH MARCH 3, 2016; PROVIDING FOR REAPPOINTMENT AND TERM OF OFFICE IN ACCORDANCE WITH THE TEXAS CONSTITUTION AND APPLICABLE STATE STATUTES; AUTHORIZING THE MAYOR TO EXECUTE A CONTRACT FOR TERM OF OFFICE; AND RATIFYING TERMS OF CONTRACT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, Sections 6.03 of the Charter of the City of Denton and Chapter 19 of the City Code for the City of Denton authorize the City Council to appoint a Presiding Municipal Judge to preside over the judicial functions of the Municipal Court of Record for the City of Denton; and WHEREAS, Chapter 30 of the Government Code, the Uniform Municipal Courts of Record Act (specifically Section 30.00006) provides that a governing body shall appoint one or more Judges to preside over a municipal court of record; and WHEREAS, Chapter 30.0007 of the Government Code requires that, if there is more than one municipal judge in the municipality, the governing body of the municipality shall appoint one of the judges as the presiding judge; and WHEREAS, Chapters 29 and 30 of the Texas Government Code requires that the Council shall establish two year Terms of Office; and that a Municipal Judge who is not appointed by the 91St day following the expiration of a term of office shall, absent action by the appointing authority, continue to serve for another term of office beginning on the date the previous term of office expired; and WHEREAS, Section 19 -36 of the Code of ordinances for the City of Denton provides that the Presiding Judge shall be appointed in even - numbered years and the Assistant Municipal Court Judges shall be appointed in odd - numbered years; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That ROBIN A. RAMSAY is appointed as the Presiding Judge for the Municipal Court of Record for the City of Denton, Texas for a two (2) year Term of Office beginning on the 4th day of March, 2014, and continuing through March 3, 2016, or as further provided herein. SECTION 2. The City of Denton therefore appoints and designates ROBIN A. RAMSAY, as Presiding Municipal Judge and Magistrate for, and under the laws of the State of Texas, with all the powers, rights and duties of said appointment for two (2) year Terms of Office. Said Term of Office shall be automatically renewed and extended and ROBIN A. RAMSAY shall be reappointed for successive terms of two (2) years, unless either the City or sAlegal \our documents \ordinances \14\2014 ordinance appointing presiding judge.doc the Judge provides written notice of intent that said appointment and contract shall not be renewed at least thirty (30) days prior to the expiration of any such term of appointment. As provided by Section 29.005 of the Texas Government Code, the Presiding Municipal Court Judge shall be reappointed by the 91St day following the expiration of a term of office shall, absent action by the City Counsel for the City of Denton, Texas, and shall continue to serve for another term of office beginning on the date the previous term of office expired. SECTION 3. The Mayor is herein authorized to execute on behalf of the City a Contract for Services with the Presiding Judge, providing for the terms of employment and compensation for each municipal court judge at a later time within said term as the Council deems appropriate. SECTION 4. Should any portions or provisions of the City Code or City Charter for the City of Denton conflict with state law, Chapter 30 (The Uniform Municipal Court of Record Act) shall be controlling authority regarding the terms of appointment, re- appointment, qualifications or removal of a municipal court judge as appointed herein. SECTION 5. The Ordinance shall become effective as March 4, 2104, without lapse or interruption of office as provided by law; all judicial acts, orders and decrees issued in his capacity a Presiding Judge since the date of the expiration of any prior terms are herein ratified, and shall not affect the remainder of any terms of office for the Presiding Judge as referenced above. PASSED AND APPROVED this the day of , 2014. ATTEST: JENNIFER WALTERS, CITY SECRETARY MMA APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY f BY: MARK A. BURROUGHS, MAYOR Page 2 S:\Legallour Documents\Con=cts \14\Ramsay Employ vent Agreement.doc STATE OF TEXAS COUNTY OF DENTON EMPLOYMENT AGREEMENT This Agreement, made and entered into effective the 4`h day of March, 2014 by and between the City of Denton, Texas, a Texas municipal corporation, hereinafter called "Employer," and Robin A. Ramsay, hereinafter called "Presiding Judge," both of whom agree as follows: WITNESSETH: WHEREAS, Employer desires to re- appoint and continue the employment of the services of said Robin A. Ramsay as Presiding Judge of the City of Denton Municipal Court; and WHEREAS, it is the desire of Employer to (1) secure and retain the services of Presiding Judge and to provide inducement for him to remain in such employment, (2) to make possible full work productivity by assuring Presiding Judge's morale and peace of mind with respect to future security, and (3) to act as a deterrent against malfeasance or dishonesty for personal gain on the part of the Presiding Judge; and WHEREAS, Presiding Judge desires to accept continued employment as Presiding Judge of said City of Denton, Texas Municipal Court; and WHEREAS, the parties acknowledge that Presiding Judge is a member of the State Bar of Texas (`State Bar ") and that Presiding Judge is subject to the Code of Professional Responsibility of the State Bar and shall comply with all conditions and restrictions as set forth for municipal judges under all applicable state statutes and as required under the Texas Code of Judicial Conduct; NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: SECTION 1. DUTIES. Employer hereby engages the employment services of Robin A. Ramsay as Presiding Judge of said Employer to perform the functions and duties specified by the Code of Judicial Conduct, the Denton City Charter, the City Code, Chapter 30 of the Texas Government Code, the laws of the State of Texas, and all other applicable laws, and to perform other legally permissible and proper duties and functions as Employer shall from time to time assign. Such duties include court sessions, workday arraignments, in -house training, office hours, and other services of the Municipal Court Judge (or Statutory Magistrate) for the City of Denton. Olcgalbur doeumentslcontracts114Vamsay employment agreement.doc SECTION 2. TERM. A. Presiding Judge shall be re- appointed for a term of two years commencing on March 4, 2014 and ending on March 3, 2016. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of Employer to terminate the services of Presiding Judge at any time, subject only to the provisions set forth in Section 4, paragraphs A and B of this Agreement. B. Nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the Presiding Judge to resign at any time from his position with the Employer, subject only to the provision set forth in Section 4, paragraph C, of this Agreement. C. Presiding Judge shall continue in the duties of Presiding Judge on March 4, 2014. and agrees to remain in the employ of Employer until March 3, 2016, and except as provided herein, neither to accept other employment nor to become employed by any other employer until this Agreement is terminated by either party as provided herein. The term "employed" shall not be construed to include those outside activities approved in accordance with Section 8 hereof. SECTION 3. SUSPENSION /REMOVAL. Subject to the provisions of Section 4 below; Employer may suspend or remove the Presiding Judge with or without full pay and benefits at any time during the term of this Agreement, but only if: A. Employer and Presiding Judge agree; or B. At least 30 days before the suspension or removal shall become effective, the City Council shall by a majority vote of its members adopt a preliminary resolution stating the reasons for his removal. The reasons for removal shall be in accordance with Section 30.000085 of the Texas Government Code, as amended (the "Reasons for Removal "). Presiding Judge may reply in writing and may require a hearing at a public meeting of the Council; which shall be held not earlier than 20 days nor later than 30 days after the filing of such request. The hearing may be held in executive session, at the option of the Council, unless Presiding Judge requests the hearing be held in open session in accordance with Tex. Gov't Code §551.074. Pending such hearing, the Council may suspend Presiding Judge from duty, but may not. suspend or reduce his salary. After such hearing or public hearing, if one be requested, and after full consideration, the Council by majority vote may adopt a final resolution of removal or suspension. SECTION 4. SEPARATION AND SEVERANCE PAY. A. In the event of his separation as Presiding Judge under Subsection 3.A, he shall be entitled to receive a lump sum payment equal to six months aggregated salary. Severance pay is not due for removal under Subsection 3.13. s:UegaMn documentskontracts\ dlramsay employment agrcement.doc B. In the event Presiding Judge voluntarily resigns his position with Employer before expiration of the aforesaid term of his employment; then Presiding Judge shall give Employer 30 days notice in advance, unless the parties otherwise agree. SECTION 5. SALARY. A Employer agrees to pay Presiding Judge for his services rendered pursuant hereto an annual base salary of 5114,324.39, payable in installments at the same time as other employees of the Employer are paid. All provisions of the City Charter, City Code, and Rules and Regulations of the City adopted by the City Council relating to vacation and sick leave; retirement and pension system contribution, holidays, and other fringe benefits and working conditions as they now exist or hereafter may be amended, shall apply to Presiding Judge as they would to other employees of the City, which benefits include health insurance, long -term disability insurance, retirement under the Texas Municipal Retirement System, and other benefits as provided to other Council appointees of the City. B. In addition. Employer agrees to increase said base salary and/or other benefits of Presiding Judge in such amounts and to such extent as the Council may determine within the approved budget that it is desirable to do so on the basis of an annual performance review of said Presiding Judge made at the same time as similar consideration is given other Council appointees. C. The Presiding Judge, as one of several appointed magistrates for the City of Denton, may be required to serve as an assigned "Jail Magistrate" to perform magisterial duties related to persons arrested by, and in the custody of the Denton Police Department. In addition to the annual base salary referenced herein, the Presiding Judge shall be paid $165 for each day of service as designated or assigned "Jail Magistrate" when such services are required on a Saturday, Sunday or holiday as designated by the City. SECTION 6. PERFORMANCE EVALUATION. A. The Council shall review and evaluate the performance of the Presiding Judge at least once annually during the time set aside each year for the performance review of other Council appointees. Said review and evaluation shall be in accordance with specific criteria developed jointly by Presiding Judge and Employer. Said criteria may be added to or deleted from as the Council and Presiding Judge shall agree. B. Annually, the Council and Presiding Judge shall define such goals and performance objectives which they determine necessary for the proper operation of the City of Denton Municipal Court, and in the attainment of the Council's policy objectives and shall further establish a relative priority among those various goals and objectives. sAlepllour documentskontracuU4Vamsap employment agrermcnt.doc C. In effecting the provision of this Section, the Council and the Presiding Judge mutually agree to abide by the provisions of applicable law. SECTION 7. HOURS OF FORK. It is recognized by both Employer and Presiding Judge that the duties of Presiding Judge require a great deal of time outside of normal office hours. It is also recognized by the parties that Presiding Judge is required to devote the amount of time and energy necessary to carry out those duties with the highest amount of professionalism possible. That being the case, the parties recognize that Presiding Judge may choose to take personal time off during business hours when it is appropriate and when his duties allow. Although this personal time off is not considered vacation, neither is it to be considered as compensatory time for time spent by Presiding Judge in carrying out his duties outside of normal office hours, as the parties agree that the Presiding Judge must devote the amount of time necessary to fulfill those duties. The Council will consider the Presiding Judge's use of personal time off during the performance evaluation. SECTION 8. OUTSIDE ACTIVITIES. Presiding Judge is entitled to devote whatever amount of time he feels is appropriate under the circumstances to the pursuit of teaching, counseling, consulting, writing. private practice of law, judging for other municipal courts, or other non - employer connected business outside of normal business hours of the Employer, provided that this does not conflict or interfere with his duties of the office of Presiding Judge as required by Chapter 30 of the Texas Government Code, and provided that Presiding Judge first notifies the Council Appointee Performance Review Committee that he intends to engage in such activity, including the amount of time he intends to devote to this activity and his engagement in the activity is approved by the Chair of the Committee. SECTION 9. AUTOMOBILE. The Presiding Judge is required to be on call for 24 hour service, so therefore. must have access to a vehicle for Citv business. Employer shall grant to the Presiding Judge a car allowance of $338 per month for providing such vehicle. The Presiding Judge shall be responsible for the purchase, maintenance, insurance, taxes, etc. for said vehicle. The monthly allowance will be considered for increase during the performance evaluation process. The Employer also agrees to reimburse Presiding Judge for mileage for out-of- county travel associated with City business at the current IRS rate for mileage reimbursement in accordance with the then current City Travel Reimbursement Policy for City employees with car allowances. SECTION 10. RETIREMENT. A. Employer agrees to execute all necessary agreements provided by the International City /County Management Association — Retirement Corporation (ICMA -RC) for Presiding Judge's participation in said ICMA -RC retirement plans. Employer further agrees to contribute 6% of Presiding Judge's annual base salary to ICMA -RC's 457 plan. All sums contributed to said plans shall be in s:Utgalbut documentskontractsM41tamsay employment agreement.doc addition to Presiding Judge's base salary. Employer also agrees to allow Presiding Judge to contribute whatever portion of his base salary he may deem appropriate to said plan, including "catch -up" provisions. B. Employer agrees to pay the percentage of the cost of Presiding Judge's participation in the TMRS retirement program, in accordance with Employer's current policy for other executive -level employees. C. if the Presiding Judge retires pursuant to a qualified retirement plan; or is permanently disabled during the term of this Agreement, the Presiding Judge shall be compensated for sick leave, vacation leave, holidays, and other benefits then accrued or credited to the Presiding Judge in accordance with Employer's current policies for compensation for these benefits, and, at the Presiding Judge's option, shall be permitted to continue to participate in the City's health insurance plan on the same basis as other retirees from the City are permitted to do so; or, if such other retirees are not permitted to do so, at the cost of the Presiding Judge. SECTION 1 1. DUES, MEMBERSHIPS AND SUBSCRIPTIONS Employer agrees to budget and to pay for the professional dues, memberships, and subscriptions of Presiding Judge necessary for his continuation of full participation in national, regional, state and local associations and organizations necessary and desirable for his continued professional participation, growth and advancement as Presiding Judge, and for the good of the Employer in amounts that are approved by the City Council in the annual budget for the City's Municipal Court Judge — Administration. SECTION 12. PROFESSIONAL DEVELOPMENT. Employer hereby agrees to budget for and to pay the full travel. participation, and subsistence expenses of Presiding Judge for professional and official travel, meetings and occasions adequate to continue the professional development of Presiding Judge, and to adequately pursue necessary official and other functions for Employer, including such national, regional, state and local groups and committees thereof which Presiding Judge serves as a member in the amounts approved by the City Council in the annual budget for the City's Municipal Court Judge - Administration. SECTION 13. BONDING. Employer shall bear the full cost of any fidelity or other bonds that may be required of the Presiding Judge under any law or ordinance. SECTION 14. OTHER TERMS AND CONDITIONS OF EMPLOYMENT. A. The City Council, upon recommendation of the Council Appointee Performance Review Committee and in consultation with the Presiding Judge, shall fix any such other terms and conditions of employment as it may determine from time to time, relating to the performance of Presiding Judge, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this sAlegatlout documentskonuactAI4Vamsay employment agreement.doc Agreement, the City Charter, Chapter 30 of the Texas Government Code, or any other law, and are memorialized by a written amendment to this Agreement. B. All provisions of the City Charter and Code, and regulations and rules of the Employer relating to vacation and sick leave, retirement and pension system contributions, holiday, and other fringe benefits and working conditions as they now exist or hereafter may be amended, also shall apply to Presiding Judge as they would to other employees of the Employer in addition to said benefits enumerated specifically for the benefit of Presiding Judge. SECTION 15. GENERAL PROVISIONS. A. The text herein shall constitute the entire agreement between the parties. B. This Agreement shall be binding upon and inure to the benefit of the heirs at law and executors of Presiding Judge. C. If any provision; or any portion, thereof, contained in this Agreement is held unconstitutional, invalid, or unenforceable, the remainder of this Agreement. or portion thereof, shall be deemed several, shall not be affected and shall remain in force and effect. D. The venue of any litigation involving this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. SECTION 16. APPROPRIATIONS. The Employer has appropriated, set aside and encumbered, and does hereby appropriate, set aside. and encumber available and unappropriated funds of the City in an amount sufficient to fund and pay all financial obligations of the City pursuant to this Agreement. including, but not limited to the severance pay, salary and benefits set forth and described herein. IN WITNESS WHEREOF, the Mayor as duly authorized by the City Council and on behalf of the City of Denton, has signed and executed this Agreement and the Presiding Judge has signed and executed this Agreement, both in duplicate, the day and year first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY MN R CITY OF DENTON MARK A. BURROUGHS, MAYOR s:UegaMur documenWcontracts \14\ramsav emplolment agreement.doc APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: PAIN A,,�MSAY PRESIDING JUDGE Coir�d i3O , eirAa AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Planning and Development CM/ACM: John Cabrales, Jr. SUBJECT 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 1, 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 making 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. BACKGROUND On July 9, 2013, staff presented a status update on the current Food and Food Service Establishments Ordinance 2012 -305 which was adopted on November 6, 2012. Staff also presented some proposed amendments to the current Food Code. The amendments were discussed and the City Council gave direction regarding the proposed amendments. Based on that discussion, staff is recommending the following amendments: • The addition of the following definition for Vendor: VendorlUpplier.• an approved business establishment that sells or supplies food and food related products to Mobile Food Establishments. • To help clarify who is required to provide documentation to whom, staff has added the following to the code: The mobile food establishment shall provide documentation of each visit to a commissary and shall have that documentation available for inspection. This documentation shall he provided by the commissary providing service, and should sped& when and which service was provided. • There is a need to add verbiage to address Food Tricks that sell food at constriction sites: A mohile,food preparation facility shall not park on an unimproved surface such as grass or dirt without written approval from the City, unless selling 1br less than one hour at or on a site that is currently under construction or where there is significant construction activity. • Staff also added the following to the code: Mohile units shall not stop and sell food in any residential zone that does not have an active Homeowner's or Neighhorhood Association, except for those mobile food units that regildeirly sell food to construction workers in residential zones with active construction activity. • Staff added the following to the Food Code: Mohile units shall not sell food from a public right of way without written permission from the City Manager or his designee. Agenda Information Sheet February 4, 2014 Page 2 • Staff added the following clarifying change to the food code: The Consumer Health Division shall he given written notice within two (2) husiness days after innplementation of any changes to the filed itinerary. OPTIONS I. Make no changes to the current Food and Food Service Establishments Ordinance No. 2012 -305. 2. Adopt the proposed version of Council and Staff recommended amendments made to the current Food and Food Service Establishments No. Ordinance 2012 -305. 3. Direct the Building Inspections Division to amend the current Food and Food Service Establishments Ordinance No. 2012 -305, based on new City Council recommendations not included in the proposed amended ordinance. RECOMMENDATIONS The Building Inspections Division recommends that the City Council adopt the proposed changes to the Food and Food Services Establishments Ordinance No. 2012 -305 PRIOR ACTION/REVIEW On July 9, 2013, staff presented a six month status report of the Food and Food Service Establishments Ordinance No. 2012 -305 along with some proposed amendments On November 6, 2012, the City Council adopted the current Food and Food Service Establishments Ordinance No. 2012 -305 EXHIBITS Revised Ordinance Prepared by: Z�� V Kurt S. Hansen Building Official Respectfully submitted: Brian K. Locldey, AICP, CPM Director of Planning and Development Exhibit I ORDINANCE NO. 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 MAKING RELATED DELETIONS AND AMENDMENTS THERETO; PROVIDING A SEVERABLITITY 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. THE COUNCIL OF THE CITY OF DENTON TEXAS HEREBY ORDAINS: SECTION 1: Articles I, II, III, IV, V and VI of Chapter 13 ( "FOOD AND FOOD SERVICE ESTABLISHMENTS ") of the City of Denton Code of Ordinances are hereby deleted in their entirety and replaced with new Sections 13 -10 and 13 -20 which hereby read in their entirety as follows: Sec. 13 -10 Rules on food service -- Adopted; compliance procedures. The city adopts the amendments to Texas Board of Health found in 25 Texas Administrative Code, Chapter 229, Sections 161 - -171 and 173 - -175 as amended, which establishes regulations regarding the regulation of food establishments in this jurisdiction is hereby adopted as the minimum standards for food service operations within the corporate limits of the City of Denton, Texas. Wherever in these rules the words "municipality of Denton" appear, they shall be understood to refer to the City of Denton and the words "regulatory authority" shall refer to the City of Denton. The Texas Food Establishments Rules, save and except the amendments set forth below are made a part of this article as if fully set forth herein. A copy of the Texas Food Establishment Rules, along with city amendments, shall be kept on file in the office of the city secretary of the city being marked and designated as the Texas Food Establishment Rules, published by the Texas Board of Health Bureau of Food and Drug Safety (Retail foods division). Any revision, addition, or deletion to the Texas Food Establishment Rules (TFER) by the Department of State Health Services or the United States Food and Drug Administration (FDA) shall be deemed to be an amendment to this article and adopted as of the time it goes into effect or is published. Sec. 13 -20 Deletions and amendments. Amendments to the Texas Food Establishment Rules Section 229.162 is amended by adding the following: 162.1 Administrator: the Building Official, or their designated employee, of the City of Denton. 162.2 Agricultural product: an agricultural, apicultural, horticultural, silvicultural, or viticultural, or fish or other aquatic species product, either in its natural or processed state, that has been produced, processed, or otherwise had value added for use as human food. 162.3 Catering Establishment: shall mean a food establishment where food is completely or partially prepared for delivery at a separate location where it is meant to be served and consumed. For purposes of this definition of mobile food establishments, a food service establishment is considered to be operating mobile food units, rather than to be operating as a catering establishment; unless at each premises or property to which food is delivered, the food is provided to one person for consumption by that person or that person's guests or invitees. Page 1 of 33 162.4 Catering operation: a food service establishment which prepares or serves food on premises in control of another. 162.5 Certificate of Occupancy: A Certificate of occupancy is a document issued by a local government agency indicating that a building or mobile food vehicle complies with zoning and building laws. 162.6 Change of Ownership: a change of owner or operator of a food establishment business, and does not refer to a change of owner of the property or building in which the business is located. 162.7 Change of Use: that which requires the owner of an establishment to submit plans before any construction is begun on a project that changes the use of the current establishment. 162.8 Commercially Manufactured: produced or built, for commercial gain, by a person showing a high degree of skill or competence. 162.9 Commissary: also known as a central preparation facility; base of operations; or premises from which a mobile unit operates. A commissary shall be used as a base of operations for all classes of mobile food vendors. A commissary is a site approved by the City Health Officer at which food preparation, storage and cleaning or servicing of the vehicle occurs. State law prohibits the use of a private residence as a central preparation facility or warehouse. 1162.10 Community Market: a designated location used primarily for the distribution and sale directly to consumers of raw agricultural products grown by farmers or home -grown fruits, vegetables, produce or food products; meat and fish items, plants and flowers; arts and crafts items; and bakery goods, beverages, dairy products, delicatessen, and grocery items. 162.11 Cooking demonstration: food that is not to be offered, sold, or otherwise distributed to the public 162.12 Farmers Market: a designated location used primarily for the distribution and sale directly to consumers of food products by farmers or other producers of agricultural products 162.13 Farmer's Market Food Vendor: any person(s) who operate(s), offers, or sells food typically known as "farm grown ", "farm originating" or "farm obtained" from a location approved on private or public property. Foods included in "farm grown" are whole produce, plants, nuts, certain meats, honey, eggs and pasteurized dairy products. These vendors and any foodservice operations shall comply with the Texas Food Establishment Rules as set forth by the Dept. of State Health Services. 162.14 Fixed Commercial Location: a building that can obtain a certificate of occupancy; not mobile in nature. 162.15 Food handler card: a card issued by the city of Denton to all food establishment employees whose work brings them into contact with the handling of food, utensils, or food service equipment. These employees shall fulfill all city requirements before receiving a card. 162.16 Grease Interceptor: A plumbing appurtenance that is installed in a sanitary drainage system to intercept oily and greasy wastes from a wastewater discharge. Such device has the ability to intercept free - floating fats and oils. 162.17 Health Officer: the officer or other designated authority charged with the administration and enforcement of this code, or a duly authorized representative. 162.18 Health or regulatory authority: the City of Denton. 162.19 Heavy Food Preparation: shall mean any area in which foods are prepared utilizing a grill, griddle, deep -fat fryer, commercial type ovens, and /or any similar food preparation equipment; or any area subject to flooding type of wet cleaning procedures due to the cutting or processing of meat, poultry, fish or pork. Heavy food preparation includes but is not limited to: Page 2 of 33 cafeterias, fast food restaurants, full service restaurants, pizza preparation, donut preparation, and meat and fish markets, etc. and may include day care centers. For information regarding grease interceptor sizes, refer to the International Plumbing Code as amended by the City Building Inspection Department. 162.20 Light Food Preparation: shall mean any area in which foods are prepared exclusive of the use of fryers, grills or similar equipment. Light food preparation is usually limited to the preparation of hot dogs, sandwiches, salads or other similar foods and fountain -type cold drinks. Light food preparation includes, but is not limited to, sandwich shops, limited menu concession stands, etc. and may include day care centers. For information regarding grease interceptor sizes, refer to the International Plumbing Code as amended by the City Building Inspection Department. 162.21 Minor: shall mean an individual under the age of 18 162.22 Mobile Food Establishment; a food establishment that serves, sells, or distributes any food or beverage from a mobile food preparation vehicle that is not operating at a permanent fixed location. A mobile foodservice establishment is vehicle - mounted or wheeled and capable of being readily moveable. A mobile food unit is fully self - contained. A mobile food establishment is a commercially manufactured vehicle from which food is prepared, served or provided for the public with or without charge. Types of mobile food establishments: The mobile food unit classifications are based upon the type of menu served. Class I — Limited Mobile Food Establishment: these mobile food units may provide hot and cold holding display areas from which packaged foods are displayed. Self - service by customers of unpackaged foods is not allowed. Preparation, assembly or cooking of foods is not allowed on the unit. Non - potentially hazardous beverages must be provided from covered urns or dispenser heads only. No dispensed ice is allowed. Class II — General Mobile Food Establishment: these mobile food units may serve a full menu as approved by the Consumer Health Division. Class III - General Service Pushcarts: these mobile food units may operate only at one location for the life of a permit and shall serve only a limited menu as approved by the Consumer Health Division. Class IV — Limited Service Pushcarts: these mobile food units may operate at one location for the life of a permit or may be pushed by human power to various locations and shall serve only a limited menu of non - potentially hazardous, prepackaged food items as approved by the Consumer Health Division. 162.23 No food preparation: any area in which foods are provided pre - wrapped, from a source approved by the Department of State Health Services with microwave oven type heating being the maximum handling involved. No food preparation is limited to prepackaged sandwiches or similar foods, candies and containerized beverages. 162.24 Non - potentially hazardous beverage: shall mean a non- alcoholic liquid intended for consumption, whether natural or synthetic, that does not require temperature control because it is not capable of supporting the rapid and progressive growth of infectious or toxigenic microorganisms or the growth and toxin production of Clostridium botulinum. The term includes: 1) Tea and coffee, excluding espresso, with powdered creamer or ultra -high, pasteurized half and half in individual servings; 2) Commercially made, high acid beverages with a pH level of 4.6 or below, such as apple juice, lemonade, limeade, and orange juice; 3) Fresh squeezed, high acid beverages; Page 3 of 33 4) Commercially filled carbonated beverages; 5) High acid beverages made from a commercial mix; and 6) Mineral water sold in open, single- service cups with ice from an approved source. 162.25 Non - profit organization: All government entities and political subdivision and public school districts; Organizations chartered under the Texas non -profit corporation act; or Operations recognized by the IRS as a 501(c) organization or corporation. 162.26 Perishable food: shall mean any food of a type or in a condition that may spoil. 162.27 Remodeling, extensive: any change in the structure of a food preparation area or any change in the establishment which would increase or decrease size requirements for the food preparation or food storage areas as specified in sections 13 -27 (b) and (c). The term may also include any construction which requires a building permit from the Building Inspection Division of the City of Denton. It does not include: Expenditures for the replacement of moveable equipment; or remodeling which does not affect the construction or operation of food storage or food preparation areas or areas used to store or clean utensils and equipment used in food storage or food preparation. 162.28 Seasonal food service establishment: any food service establishment which operates from a fixed location for a period not to exceed six (6) consecutive months provided that such operation shall occur only once during any twelve (12) consecutive month period. 162.29 Smoker: any unit, whether mobile or fixed in nature, which uses wood or wood products to provide smoke for the purpose of slow cooking meats intended for human consumption, whether such unit is inside an enclosed building or in an outdoor area. 162.30 Temporary Event /Community Based Event: transitory gatherings such as traveling fairs, carnivals, multicultural celebrations, special interest fundraisers, restaurant food shows, grand openings, custorner appreciation days, etc. also called special events. These are single events or celebrations. 162.31 Temporary food permit: a permit issued after fulfilling all City requirements to a food establishment selling or serving food at a temporary event. The temporary food permit is valid until the temporary event concludes or for 14 consecutive days, whichever is less. A temporary food permit is valid for only one event location at a time. 162.32 Toilet facilities: flush toilets and sinks with hot and cold running water connected to an approved system 162.33 Vendor /Supplier: a business establishment approved by the City Health Officer that sells or supplies food and food related products to Mobile Food Establishments. 162.34 Warehouse: shall mean any enclosed structure, room, or building where packaged food or food products intended for off - premise consumption are stored for, sold to, or offered for sale or distribution to persons other than the ultimate consumer. 162.35 Wholesome: in sound condition, clean, free from adulteration, and otherwise suitable for use as human food. Food which is packaged shall be deemed wholesome if it meets the foregoing requirements and it is used or sold prior to the expiration date marked on the package. Section 229.163(a) is amended by adding the following: 163.1 This person (i.e., the person in charge as defined in T.F.C.R. §229.163(c)) shall have a valid Food Protection Management training certificate. Certification must be obtained by passing an examination approved by the Texas Department of State Health Services and approved by the regulatory authority. The following food service establishments are exempt from the requirements of this section: Page 4 of 33 1) Establishments selling only uncut produce or commercially packaged; hermetically sealed foods; 2) a food enterprise that provides only beverages or prepackaged food that is not a potentially hazardous food; 3) Bars and lounges that do not serve potentially hazardous foods; 4) a food processing plant that is inspected at least once each week by a state or federal food sanitation inspector or that only stores prepackaged food that is not potentially hazardous; 5) Concession stands that are run by volunteers; 6) a nonprofit organization that serves food only to members of the organization; 7) a vending machine or a mobile food establishment that offers only prepackaged food, if a certified food manager is in charge at the central preparation facility that supplies the products for the vending machine or mobile food establishment; or 8) a temporary event food vendor. Compliance may be required of establishments having one of the above exemptions if they have repeated or critical food code violations, or if determined by the health officer to be capable of causing food borne illness. 163.2 The owner or operator of a new foodservice establishment shall provide verification to the Consumer Health Division, prior to the opening of the establishment, that the establishment meets the Certified Food Protection Manager requirement of this article. 163.3 If a foodservice establishment cannot meet the requirements of this section because of the termination or permanent transfer of a registered food protection manager, the food establishment shall: Employ another registered food manager within thirty (30) days of the effective date of the termination or transfer of the previous manager. When an existing food service establishment has a change of ownership, the new owner or operator of the establishment shall provide verification to the Consumer Health Division within thirty (30) days of the effective date of the change of ownership that it is in compliance with the certified food protection manager requirements of this article. 163.4 A person commits an offense if the person is the owner or operator of a food establishment and violates a provision of this section. 163.5 A person commits an offense if the person is the food manager of a food establishment and fails to obtain a food protection manager's certificate from an accredited program accepted by the Texas Department of State Health Services within the time limits allowed in this article. 163.6 A person holding a food protection manager's certificate shall register a copy of that certificate with the City of Denton Consumer Health Division. Section 229.163(c)(12) is amended by adding the following: 163.7 Every person whose work brings them into contact with the handling of food, utensils, or food service equipment must possess a valid City of Denton food handler card. Every person who owns, manages, or otherwise controls any food service establishment shall not permit any person to be employed therein who does not possess a valid City of Denton food handler card within ten (10) days from the date of their employment. 163.8 Food handler test In order to receive a food handler's card, every person must achieve a score of seventy (70) or more on a the test offered by the City of Denton or pass an approved on -line course offered on the City of Denton Consumer Health webpage. After an applicant passes an online food handler Page 5 of 33 course, the applicant shall bring verification to the City in order to receive a City of Denton issued Food Handler card. This requirement must be met upon expiration of a food handler's card and upon application for a new food handler's card. At the discretion of the health officer, if he or she deems it necessary, employees may be required to attend one of the classes offered by the City of Denton Consumer Health Division. 163.9 Certificates available. The permit holder of the food service establishment shall make food handler cards and food manager certificates displayed where they can be easily seen by the regulatory authority. 163.10 Duration of food handler card. Any food handler's card issued under the provisions of this article shall remain in full force and effect two years from the date of issuance. 163.11 Same - nontransferable. Every food handler card issued under the provisions of this chapter shall be nontransferable. 163.12 Same -- Confiscation. The health officer shall have the authority to confiscate a food handler's permit that has expired or is otherwise invalid. 163.13 Personnel. a) A food employee may drink from a beverage container that has a tight -fitting lid with a straw. b) Employees shall wear disposable gloves when handling ready -to -eat foods, or provide documentation of training regarding correct handling of ready -to -eat foods as found in section 229.164(e)(1)(D)(i)- (iii). Section 229.164(a) is amended by adding the following: 164.1 Destruction of unwholesome food authorized. Whenever the city health officer discovers any food or drink displayed for sale or kept for sale, which is unwholesome or unsafe for human consumption, the officer shall order the food or drink to be destroyed or removed, and the owner or the responsible person in charge shall immediately destroy or remove such unwholesome or unsafe food at his or her own expense. 164.2 Sale or other disposition of unwholesome food prohibited. It shall be unlawful for any person, association of persons, firm, food service establishment, temporary food service establishment or corporation to offer for sale or give away any food or drink for human consumption which has been pronounced by the city health officer to be unfit for such use. No person shall prepare potentially hazardous or TCS food for sale to the public from their own private residence. Section 229.164(v)(2)(C) is amended by adding the following: 164.3 Written documentation of cool -down procedures of the food that is being donated is required. Section 229.165(k)(1)(C) is amended by adding the following: 165.1 Existing equipment which was installed in a food service establishment prior to the effective date of this chapter, and which does not meet fully all of the design and fabrication requirements of this rule shall be deemed acceptable in that establishment as long as there is no change of ownership, equipment is in good repair and capable of being maintained in a sanitary condition, and the food - contact surfaces are nontoxic. Replacement equipment and new equipment acquired after the effective date of this chapter shall meet the requirements of this chapter. Page 6 of 33 Section 229.1660)(3) is amended by adding the following: 166.1 Grease Interceptors shall be located outside the food preparation area unless otherwise approved by the regulatory authority. Section 229.166(l)(14)(B) is amended by adding the following: 166.2 Garbage Containers. Garbage and refuse shall be kept in durable, easily cleanable, insect - proof, and rodent -proof containers that do not leak and do not absorb liquids. Containers used in food preparation and utensil - washing areas shall be kept covered except when actually in use. There shall be sufficient number of containers to hold all the garbage and refuse that accumulates during operation of the food establishment. The regulatory authority may require additional service, dumpsters or larger dumpsters to accommodate the garbage and refuse that accumulates. Suitable facilities, including hot water and detergent or steam shall be provided and used for washing garbage containers. Liquid waste from compacting or cleaning operations shall be disposed of as sewage. Power washing and contracted cleaning services shall be performed according to applicable law. Cardboard or other packaging materials that do not contain food residues or that are waiting regularly scheduled delivery to a recycling or disposal site may be stored outside in a covered receptacle if it is stored so that it does not create a rodent harborage problem. Section 229.167(b)(3) is amended by adding the following: 167.1 Premises. Food Service establishments and all parts of the property used in connection with operations of the establishment shall be kept free of litter. Only articles necessary for the operation and maintenance of the food service establishment shall be stored on the premises. Section 229.167(p)(15)(B)(iii) is amended by adding the following: 167.2 A food service establishment may permit a customer to be accompanied by a dog in an outdoor dining area if: a) The food service establishment posts a sign in a conspicuous location stating that dogs are allowed in the outdoor dining area; b) The customer and the dog access the outdoor dining area directly from the exterior of the food service establishment; c) The dog does not enter the interior of the food service establishment; d) The customer retains the dog on a leash at all times and controls the dog; e) The customer does not allow the dog to be on a seat, a table, a countertop, or a similar surface; f) In the outdoor dining area, the food service establishment does not 1) prepare food; or 2) permit open food, except for food that is being served to a customer; and, g) Only cleaners and sanitizers that are not harmful to animals may be used on outdoor surfaces. Page 7 of 33 Section 229.169 is amended by adding the following: 169.1 Requirements for mobile units. a) Application Process 1) In order to obtain a health permit to operate a mobile food establishment within the city limits of Denton, an applicant shall submit all required applications and applicable documents with the City of Denton and pay all required fees. 2) The application shall include an approved Certificate of Occupancy issued by the Building Official. A Certificate of Occupancy shall be required for all mobile units that will stop and sell food in any one parcel of land for more than one hour. The Certificate of Occupancy verifies that all sales locations stated in the submitted location itinerary are zoned for food establishments. Other documentation may be required by the health officer. 3) The Consumer Health Division shall be given written notice within two (2) business days after implementation of any changes to the filed itinerary. b) Permit Issuance 1) Upon receiving a proper application for a permit, the Consumer Health Division shall make appropriate inspections of the vehicle; equipment and other reasonable inspections concerned with the mobile food establishment and shall issue a permit and sticker only if: a)The inspection reveals compliance with the applicable requirements of all federal and state statutes and regulations and city ordinances governing the proposed mobile food establishment operation. b) The valid sticker shall be displayed by a mobile food establishment: 1. The hard copy of the permit shall be posted in public view inside the vehicle and 2. The sticker permit shall be posted on the back right corner on the outside of the vehicle — it will display the date of expiration of the permit and the unit ID number. 2) The health permit shall be valid for 12 months. Mobile food establishment permits shall not be transferable and shall be considered revoked should the food vending operation be changed from that specified in the permit. c) Location of Operation 1) Any location where mobile units stop and sell food in any one location for more than one hour, shall be zoned (according to the Denton Development Code) to allow food establishments. 2) Mobile units shall not stop and sell food in a residential District (as defined in the Denton Development Code) without written permission from the Homeowner's Association or a Neighborhood Association. Mobile units shall not stop and sell food in any residential zone that does not have an active Homeowner's or Neighborhood Association, except for those mobile food units that regularly sell food to construction workers in residential zones with active construction activity. 3) Mobile units shall not sell food from a public right of way without written permission from the City Manager or his designee. Page 8 of 33 d) Operations on Public Property No mobile food vehicle shall operate a business from a public park or publicly owned property or site without written permission from the City. e) Signage 1) Each mobile establishment must be readily identifiable by business name, printed, permanently affixed, and prominently displayed upon at least two sides of the units , in letters and numbers not less than 3 (three ) inches in height 2) Each mobile food establishment shall be clearly marked with the food establishment's name or a distinctive identifying symbol. The lettering shall be at least three (3) inches in height and of a color contrasting with the background color. If a symbol is used, it shall be at least twelve (12) inches in diameter or of an equivalent size. 3) Each mobile food establishment shall be clearly marked with the permit number for purposes of identifying each unit on inspection reports and other communications. Section 229.169(a)(1) is amended by adding the following: 169.2 Mobile Food Vehicle Types Class I — Limited Mobile Food Establishment: these mobile food establishments may provide hot and cold holding display areas from which packaged foods are displayed. Self - service by customers of unpackaged foods is not allowed. Preparation, assembly or cooking of foods is not allowed on the unit. Non - potentially hazardous beverages must be provided from covered urns or dispenser heads only. No dispensed ice is allowed. Examples of foods that are allowed: 1) Food that was prepared and packaged in individual servings at an approved commissary and transported and stored under conditions meeting the requirements of this article 2) Potentially hazardous beverages such as individual servings of milk, milk products and coffee creams that have been packaged at a pasteurizing plant. All foods sold will need to meet proper labeling requirements. Note: If the vendor is selling prepackaged food, the vendor shall provide a copy of the commercial food establishment's Texas Food Manufacturing permit (or Meat Safety Assurance Permit — if applicable) from the Texas Department of State Health Services. Class II — General Mobile Food Establishment: these mobile food establishments may serve a full menu as approved by the Consumer Health Division. Class III - General Service Pushcarts: these mobile food units may operate only at one location for the life of a permit and shall serve only a limited menu as approved by the Consumer Health Division. Menu items shall be limited to, unless authorized by the Health Inspector: those menu items listed under Class IV — Limited Service Pushcart category, hot dogs, nachos with artificial cheese base, corn on the cob, snow cones, popcorn, pretzels, sausage on a stick, tea, lemonade, fruit drinks (from dry mix only), tamales, and roasted peanuts. Class IV — Limited Service Pushcarts: these mobile food units may operate at one location for the life of a permit or may be pushed by human power to various locations and shall serve only a limited menu of non- potentially hazardous, prepackaged food items as approved by the Consumer Health Division. Menu items shall be limited to, unless authorized by the Health Inspector: prepackaged chips, candy, ice cream, prepackaged sodas, and bottled water. Page 9 of 33 169.3 Class III and Class IV Mobile Food Vendors shall not: 1) use a vehicle that exceeds 6 ft. x 4 ft. x3 ft.; 2) enter or occupy a public roadway to solicit or conduct a sale; 3) place any signs or other advertising devices on public property other than those signs affixed to the vehicle; 4) physically or visibly obstruction pedestrian and vehicular traffic; 5) sell, distribute, or offer for sale, goods or services that have not been approved by the Health Inspector; 6) be located within a construction area, or; 7) conduct business with vehicular traffic located in the street right -of -way. 169.4 Servicing at commissaries Mobile food establishments shall report to an approved commissary location for supplies, cleaning, and servicing operations as follows: 1) The interior of the mobile food establishment shall be cleaned and serviced at a commissary approved by the City Health Officer at least daily and shall be stored at such a commissary, at a commercial parking lot, or at a storage facility when not in operation. 2) The mobile food establishment shall acquire needed supplies from an approved commissary or other approved sources. 3) An existing food establishment may serve as a commissary for a mobile food establishment only if approved by the health officer. The existing food establishment would be required to have an approved vehicle storage facility, approved potable water hookups, approved wastewater drainage facilities, approved grease interceptor hookups and size, and any other accommodations as determined necessary by the health officer to ensure compliance with all regulatory codes. 4) The mobile food establishment shall provide documentation of each visit to a commissary and shall have that documentation available for inspection. This documentation shall be provided by the commissary providing service, and should specify when and which service was provided. 169.5 Servicing Records It shall be unlawful for an operator of a mobile food establishment to be in operation without a valid servicing record in his possession. The operator of a mobile food establishment shall keep and maintain servicing records on the mobile food establishment for a period of one year from the date of servicing. The servicing records must be immediately available to any peace officer or health officer for inspection. 169.6 Vehicle construction a) The interior of the vehicle shall be commercially manufactured or be approved by the health officer. b) The food preparation area of the vehicle shall be completely enclosed. c) Mobile food establishments may be required to provide an on board power source, such as a battery or generator, to assure maintenance of PHF /TCS foods at proper temperatures during transit, preparation and service. The vehicle must be equipped with commercial mechanical facilities. All equipment on the vehicle is to be NSF approved, ANSI approved, or of commercial grade. d) The cab of the vehicle must be physically separated from the food preparation area, and the seats designated for the cook and any passengers must be located outside of the food preparation area. Page 10 of 33 e) All cooking equipment and hot holding units must be located at the rear of a mobile food preparation vehicle. Covers for deep flyers must be provided and installed over fryer units while vehicle is in motion. f) The vehicle must be equipped with a built -in hose that may be used to wash the interior of the vehicle when it is at the commissary for servicing. 169.7 Exterior surfaces Exterior surfaces of mobile food units shall be of weather resistant materials and shall comply with all applicable laws. 169.8 Utility connections Utility connections shall be limited to only electrical service and shall be in full compliance with the Electrical Code. All electrical extension cords shall be of industrial grade quality and shall be utilized in a safe manner as not to be a nuisance or a trip hazard. Mobile food establishments shall not be connected to any potable water service, sanitary sewer service, or fuel gas service while in the operation of preparing or vending food. 169.9 Damage Report Any accident involving a mobile food establishment that results in damage to the water system, waste retention tank, food service equipment, or any facility that may result in the contamination of the food being transported or any damage that results in a violation of this section, shall be reported within 24 hours of the time the accident occurred. Reports shall be made by the holder of the mobile food establishment health permit. 169.10 Overhead Protection Overhead protection shall be provided for mobile food units that are operated outdoors and where food is not covered at all times. The overhead protection shall consist of, but not be limited to, roofing, ceilings, awnings, or umbrellas. The overhead protection must be easily cleanable. 169.11 Any additional equipment or the arrangement thereof other than that approved when the permit was issued shall be prohibited unless approved in advance by the Consumer Health Division. Section 229.169(a)(7) is amended by adding the following: 169.12 A mobile food establishment must demonstrate mobility at any reasonable time if requested by any peace officer, health officer, or designated city employee. 169.13 Operation capacity limited The operator of a mobile food establishment shall prepare, serve, store, and display food and beverages on or in the mobile food unit itself; and shall not attach, set up, or use any other device or equipment intended to increase the selling, serving, storing, or displaying capacity of the mobile food establishment. It shall be un- lawful for the operator of a mobile food establishment to: 1) Allow items such as, but not limited to brooms, mops, hoses, equipment, containers and boxes or cartons to remain adjacent to or beneath the mobile food establishment; 2) Provide or allow any sign or banner to remain that is not attached and solely supported by the mobile food establishment; or, 3) Sell food outside of the vehicle, for example, from a table under a free standing canopy. All food vending shall be done from the mobile unit. 169.14 Mobile food establishments are limited by the types and choices of approved food items being prepared and sold. Food preparation may be restricted by Consumer Health. Page 11 of 33 Section 229.169(a)(8)(A) is amended by adding the following: 169.15 If liquid waste results from the operation of a mobile food establishment it shall comply with the following: 1. It shall be stored in permanently installed, vented retention tanks that are at least fifteen percent (15 %) larger than the water supply tank, but not less than thirty (30) gallons of capacity and shall be drained and thoroughly flushed during servicing operations. 2. All liquid waste shall be discharged to an approved sanitary sewage disposal system at the commissary. 3. Liquid waste shall not be discharged from the retention tank when the mobile food establishment is at an operational location. 4. The waste connection shall be located below the water connection to preclude contamination of the potable water system. 5. Connection to a sewerage system at an operation location is prohibited. 6. All used fats, oil, or grease shall be discharged to an approved grease interceptor at the commissary. Used fats, oils, or grease shall not be discharged to any unauthorized food establishment grease interceptor. Section 229.169(a)(9)(B) is amended by adding the following: 169.16 Garbage and Refuse A mobile food establishment shall provide a minimum of 20 gallons for garbage and refuse storage facilities for the operator's use; and shall have garbage and storage facilities attached to the exterior of the mobile food establishment that are insect and rodent -proof for customer use. 169.17 Access to Restroom Facilities Prior to the issuance of a health permit, the operator of a mobile food establishment shall submit to the Consumer Health Division and comply with the following: a) Written proof of availability of restrooms with flushable toilets for the use of the mobile food establishment employees located in a business establishment within 500 feet of each location where the mobile food unit will be in operation for more than one (1) hour in any single day. b) Proof of availability of adequate facilities shall be in the form of a written and notarized statement from the owner, or owner's agent, including the name, address and telephone number of the property owner or authorized agent, and the type of business and hours of operation, granting permission for the use of the facilities. If the business owner is a partnership or corporation, the statement shall include the name, address and telephone number of one of the partners or officers. c) A copy of the notarized statement shall be displayed in the mobile food establishment in plain view of the public at all times. 169.18 Separation and Setbacks Mobile food vehicles shall be separated from existing buildings and other mobile food vehicles by a minimum of 12 feet. Mobile food vehicles shall be subject to all current zoning and setback regulations found in the Denton Development Code (DDC). Mobile food vehicles shall not set up in fire lanes or parking spaces that are required by the Certificate of Occupancy of an existing business. 169.19 Food Transportation 1) During transportation, food and food utensils shall be kept in covered containers or completely wrapped or packaged so as to be protected from contamination. Foods in Page 12 of 33 original packages do not need to be overwrapped or covered if the original package is sealed. 2) Food shall be maintained at required temperatures at all times during transport. 169.20 Closure of a Mobile Food Establishment: When a mobile food unit is closed by the health officer for critical violations, the health officer shall post a closed sign and the inspection report on the unit. When a commissary or warehouse is closed by a health officer for critical violations, the health officer shall post the inspection report inside the facility. No person except the health officer shall remove or alter the inspection report or closed sign. Section 229.169(b)(2) is amended by adding the following: 169.21 Servicing records to be kept by commissaries A commissary from which a mobile food establishment operates shall issue and maintain servicing records for each unit in a manner and form prescribed by the health officer. The permit holder, person in charge, employee, or representative of any commissary shall keep and maintain servicing records at the commissary for a period of two years from the date of servicing or until retrieved by the health officer, whichever comes first. Servicing records maintained at a commissary shall be immediately available to any peace officer or health officer for inspection during normal business hours. 169.22 Falsification of servicing records It shall be unlawful for an owner, permit holder, person in charge, employee, or representative of any commissary to issue a servicing record without first verifying that the mobile food establishment has complied with all servicing requirements. It shall be unlawful for any owner, permit holder, person in charge, employee, or representative of any commissary or mobile food establishment to knowingly present or issue any false, fraudulent, or untruthful servicing record for the purpose of demonstrating compliance with the requirements of this chapter. Section 229.169(c)(2) is amended by adding the following: 169.23 Servicing operations 1) Potable water - servicing equipment shall be stored and handled in a way that protects the water and equipment from contamination. 2) Vehicle cleaning and in -place cleaning of nonfood- contact surfaces of equipment not requiring sanitization shall be done with potable water and shall be done in a manner that will not contaminate the vehicle's food storage or food preparation areas of equipment. If hoses are used in the cleaning process, they shall be food -grade and kept off the floor or pavement, on racks or by other approved suitable means. All cleaning areas shall be paved with a smooth surface of nonabsorbent material such as concrete or machine -laid asphalt, which is sloped to drain toward an approved catch basin or floor drain where the liquid waste can be lawfully disposed. The use of liquid waste transport vehicles (otherwise known as vacuum trucks), licensed by the Texas Commission on Environmental Quality for the removal and disposal of liquid waste resulting from mobile unit food operations is permitted. 3) Servicing operations may be performed by a commissary operator or by the mobile food establishment operator. It shall be the commissary operator's responsibility to observe or perform servicing on each mobile food unit and properly complete a servicing record. It is the responsibility of the mobile food establishment operator to confirm that the requirements of this section are fulfilled prior to resuming operations. 4) A current copy of each authorization must be maintained on file with the City of Denton Consumer Health Division and also in plain sight on the vehicle for inspection by the City of Denton or a peace officer upon request. Page 13 of 33 169.24 Permitting of commissaries as food establishments A commissary servicing any mobile food establishment may be an approved and permitted food establishment at which the mobile food unit is supplied with fresh water, emptied of waste water (and grease) into a proper waste disposal system, and cleaned, including washing, rinsing and sanitizing of those food contact surfaces or items not capable of being immersed in the mobile food establishment's utensil- washing sink. The servicing area must be of adequate size and scope as to accommodate its own operation, as well as those of the mobile food establishment. 1) Compliance with all other applicable rules and operational guidelines as may be promulgated by the health officer. 2) When the commissary is within another jurisdiction the permit holder shall provide a copy of the latest inspection of its facility by that regulatory authority. 169.25 Warehouse: 1) If only prepackaged goods are sold, a warehouse may be accepted in lieu of a commissary. 2) Warehouses shall be required to meet only those rules necessary to prevent the contamination of stored foods, single service articles, utensils and equipment. In general, warehouses shall be exempt from the rules relating to finished walls, ceilings, or storage bases, light colored surfaces, restroorns, lavatories and utility facilities, provided foods are protected from contamination from dust, insects, rodents, flooding, drainage, or other contaminants. 3) Handling of unpackaged foods, dishwashing and ice making are prohibited in a warehouse. 169.26 A mobile food preparation facility shall not: 1) Stop at any location, unless the stop is for less than one hour, to sell or serve food during any time other than the dates and times specified in the current itinerary on file with the Consumer Health Division for the mobile food preparation vehicle. 2) Serve as a commissary for another mobile food unit or as the base of operation for a caterer 3) Apply for variances of food processing 4) Use leftover foods. All PHF /TCS foods shall be served or discarded at the end of each business day 5) Use time as a public health control. All PHF /TCS foods shall be controlled by mechanical means 6) Park on an unimproved surface such as grass or dirt without written approval from the City Manager or his designee, unless selling for less than one hour at a site immediately adjacent to property that is currently under construction. 7) Park at a residence. 8) Be permitted to be washed -out at the location of an existing food establishment. All interior washing shall be at an approved commissary. Only exterior washing of the mobile food vehicle may be done at a commercially operated carwash. Grease or wastewater shall not be dumped or drained at a carwash. 9) Leave a location of operation until the area of operation is free from trash or nuisance caused by the mobile food vehicle business, its employees, or its customers. Page 14 of 33 169.27 Inspection Procedures I ) Critical violations shall result in the immediate closure of a mobile food unit, commissary or warehouse if the City of Denton Consumer Health officer determines that an imminent danger to the public health exists, and that the violation cannot be corrected immediately or an approved alternative procedure has not been implemented. Also refer to section 171.22. 2) For violations not resulting in closure, the corrections shall be made and approval shall be given by a City Health officer before reopening for business. 169.28 Requirements for snow cone vendors and ice cream vendors a) A snow cone vendor shall be limited to the sale of snow cones and pre- packaged items only and shall have a: 1) Commercially approved source for ice and syrup; 2) Hand wash sink with hot and cold running water under pressure, liquid soap, and paper towels; 3) At least a two (2) compartment sink (with hot and cold running water under pressure) for washing and sanitizing utensils; and, 4) Waste -water holding tank of adequate size for operation or be connected to an existing sanitary sewer. b) A snow cone vendor may also be required to meet any and all provisions required for a food service establishment, which the administrator deems necessary to protect the public health and safety. This type of establishment may be a fixed location capable of obtaining a certificate of occupancy. c) A water heater system capable of producing water of 100° degrees Fahrenheit interconnected with the potable water supply shall be provided. A minimum of 15 gallons of water must be available. d) Adequate, conveniently located and accessible toilet and lavatory facilities shall be available to the snow cone stand at all times. A notarized letter signed by the owner /operator of the establishment where the facilities are located, must be submitted with the permit application giving written permission for the snow cone personnel to use such facilities and that the facilities will be available for use at all times during the food establishment's hours of operation. The path of travel to such facilities shall not exceed a distance of 500 feet. 169.29 Requirements for the sale of ice cream, other frozen desserts or novelties upon a public street (a) A person may not sell ice cream, frozen desserts or other novelties from a vehicle before sunrise or after sunset. (b) Ice cream, frozen desserts, and other novelty frozen food items shall be individually wrapped by the manufacturer before being placed in the vehicle from which they are sold and shall be sold in the original wrapping. (c) Such frozen items as described in (b) above may be sold from a pushcart. 169.30 All vehicles offering ice cream for sale shall have: 1) An automatic flashing device consisting of two lamps at the front of the vehicle, mounted at the same level and as widely spaced laterally as possible and displaying simultaneously flashing amber lights, and two (2) lamps at the rear of the vehicle mounted at the same level and as widely spaced laterally as possible and displaying simultaneously flashing amber lights, to be used at all times while each vehicle is in use for food service or solicitation of sales; Page 15 of 33 2) Signs in front and real bearing the word "SLOW" in letters not less than six (6) inches high; and 3) be capable of maintaining a constant temperature for food storage and contain, in a conspicuous place, a thermometer to allow for verification of temperatures. Section 229.170(x) is amended by adding the following: 170.1 The term temporary food service establishment shall not include concession stands, which operate at a fixed location in conjunction with scheduled, community -based sporting or recreational events provided that the preparation and serving of potentially hazardous foods shall be restricted to only those pre- cooked, pre- packaged potentially hazardous food products that have been properly prepared in accordance with all Department of State Health Services and local requirements and are properly stored, handled, and served in the unopened, original package from said concession stands. In such instances where open potentially hazardous foods are prepared on site from a concession stand, these shall be evaluated on a case -by -case basis and a determination shall be made as to requirements. a) A temporary food service establishment that does not comply with other requirements of this chapter or other city ordinances applicable to food service establishments is permitted if: 1) The health officer finds that the operation will not result in a health or safety hazard or a nuisance; 2) The operation is limited to a single, fixed location, which may include one or more facilities at the location; 3) The operation is either: a. Limited to a time of not more than fourteen (14) consecutive calendar days; b. Operating under a city park and recreation department that has been approved by the city; and c. The food service establishment complies with the other requirements of this section. b) An application and non - refundable fees for a temporary event permit (per food booth) shall be submitted at least two (2) working days prior to the event, or five (5) days prior to the event if ten (10) or more booths are permitted for the same event. The application shall include the time the booth will be set up and ready for inspection. c) If an application is not submitted by the deadline in (b) above, the acceptance of the application will be at the discretion of the health officer, and an administrative fee will be charged. d) All requirements of the food booth must be in place before a permit will be issued. e) A temporary event permit will be required if there is open food (e.g. offering samples) available. f) Food manufacturers must submit a copy of the state manufacturer license with their application. g) Permits for temporary food service establishments that are not operating in conjunction with a City sponsored special event or community based event shall be limited to six (6) permits per year per establishment. h) A foodservice establishment with a current annual health permit will be required to obtain a temporary event permit if the event is at a location outside their permitted premises. i) A temporary food service establishment shall not: Page 16 of 33 I ) Prepare, serve, sell or distribute any food not approved in advance by the health officer. This prohibits the storage and preparation of food from a private residence. Any slicing, dicing or cutting of potentially hazardous foods must be done in a commercial kitchen and brought to the event under proper temperature control; this includes raw hamburger meat that must be brought in as commercially prepared frozen patties. No "gyro" type meat cookers are allowed. 2) Prepare potentially hazardous food; except, that the establishment may prepare potentially hazardous food that is approved in advance by the health officer and does not require substantial preparation prior to consumption (including, but not limited to, a hamburger or frankfurter) or may prepare potentially hazardous food that is obtained by the establishment in individual servings; Section 229.170(b) is amended by adding the following: 170.2 Potentially hazardous food products shall be held in mechanical refrigeration that is maintained at 41° degrees or less. Frozen products may be stored in ice only if approved in advance by the regulatory authority and the duration of the event and items offered for sale is limited, typically less than four (4) hours in duration. Potentially hazardous food products shall be held in mechanical hot or cold holding equipment if the event is more than four (4) hours in duration. All foods are to be kept properly protected during storage, preparation, and service; this will include grill covers or lids to prevent contamination from overhead. Section 229.170(d)(3) is amended by adding the following: 170.3 Small "crock- pots" may be used to properly store food utensils in water 135 ° F degrees or hotter; or utensils may be stored in running water dipper wells. 170.4 "Sterno" heating units are not allowed for use at outdoor events to hold foods hot. Section 229.170(d)(4) is amended by adding the following: 170.5 Bare hand contact with ready -to eat foods is prohibited. Single -use gloves must be worn over cleaned hands. 170.6 Animals are prohibited from being within the interior limits of a temporary food establishment. Section 229.170(h) is amended by adding the following: 170.7 A temporary food service establishment shall comply with liquid waste disposal ordinances, solid waste disposal ordinances and fire codes. Section 229.170(k)(3) is amended by adding the following: 170.8 A temporary food service establishment shall comply with these Texas Food Rules and any other requirement that the administrator determines is necessary to protect the public health or safety and imposes as a condition to the lawful operation of the establishment. 170.9 Food - handler cards required: Food safety training is required for all temporary food establishment workers. Food service workers may obtain a food - handler card through a class offered through the City of Denton Consumer Health Division's normal schedule of classes or an approved on -line course. Depending on the duration of the event and the extent of the food service being offered, the Consumer Health Division may mandate a Food Manager's Certification for a minimum of one or maximum of all personnel during the event. 170.10 Catering operations. a) All catering operations based in the City of Denton shall comply with all state rules, laws, and local ordinances. A person shall not engage in a catering operation unless the service is affiliated with a food service establishment operating from a fixed facility that is permitted by the appropriate health authority. Page 17 of 33 b) The base of operations for a catering operation shall be physically separate from a residential home and shall be a permanent, fixed location. c) The health officer may inspect a catering operation at any time. 170.11 The health officer may request copies of the health permit issued to the caterer from the regulatory authority having jurisdiction where the food is prepared or packaged. 170.11 FARMER'S MARKET a) Management and Personnel Responsibility, assignment. The permit holder shall be the person in charge or shall designate a person in charge and shall ensure that a person in charge is present at the market during hours of operation. Where it is allowed, food vendors that offer, sell, or distribute food that is potentially hazardous or that offer samples of food; shall have a person in charge that can show proof of successful completion of a Texas Department of State Health Services approved Certified Food Managers Course. Food vendors that offer, sell, or distribute only prepackaged foods, non - potentially hazardous foods or beverages or temporary food vendors in conjunction with a special event at such location are exempt from the food manager certification course requirement. Proof of successful completion of a certified food manager course may be required of food vendors having exemptions if judged by the regulatory authority to be capable of causing food -borne illness or may be an increased public health risk. b) Food 1) Preventing contamination: a. Food Display. Except for plants, nuts in the shell and whole, raw fruits and vegetables that are intended for hulling, peeling or washing by the consumer before consumption, food on display shall be protected from contamination by the use of packaging, counter, service line, or salad bar food guards that comply with NSF standards, completely enclosed display cases; or other means approve by the Regulatory Authority. Letters may be required from the fabricator or installer of such food guards stating compliance with NSF standards if visual compliance is not evident through the use of labels or listings posted directly on the food guard by the authority approved to affix such label or listing. b. Except for plants, nuts in the shell and whole, raw fruits and vegetables that are intended for hulling, peeling or washing by the consumer before consumption, food that is not completely packaged must be located under a cover, tent or other covering approved by the Regulatory Authority and remain under the covered protection for the duration of the operating period. 2) Approved Source. Only food from an approved source may be offered at a Farmer's Market or Food Market under these rules. Foraged foods are not considered to be from an approved source. Food prepared in a private home, a Cottage food production operation or from an unlicensed food manufacturer or wholesaler is considered to be from an unapproved source and may not be used or offered for sale in Farmer's Markets or Food Market as defined in this rule. Food from a kitchen regulated by a local regulatory authority and proof of such is presented shall be considered from an approved source. 3) Meat, non - poultry. a. Meat such as game animals, ratites or equine meats (as defined in TFER) may not be sold. Page 18 of 33 b. Whole muscle meat shall be stored frozen and held under refrigeration capable of maintaining the meat in a hard, frozen state. Meat shall be packaged ready to offer or sell. Separating, cutting or otherwise removing meat from an intact package is prohibited. c. Meat shall be produced, stored, labeled in compliance with U.S. Department of Agriculture rules and regulations. Proof of license or exemption shall be provided to the Regulatory Authority at time of application. 4) Poultry. a. Poultry is defined as allowed by TFER, as amended. b. Poultry shall be stored frozen and held under refrigeration capable of maintaining the meat in a hard, frozen state. Poultry shall be packaged in form ready to offer or sell. Separating, cutting or otherwise removing poultry from intact packaging is prohibited. c. Poultry shall be produced, stored and labeled in compliance with U.S. Department of Agriculture rules and regulations. Proof of license or exemption shall be provided to the Regulatory Authority at time of application. 5) Seafood, prohibition. Sale of seafood is prohibited at a Farmer's Market 6) Sampling: Allowed only where expressly approved by the Regulatory Authority. Where allowed, sampling shall comply with all of the following: a. Non - PHF /TCS foods shall be offered to the consumer in individual servings or bites and shall not be made available for self service. Portioning foods on site is prohibited. Portions shall be completely enclosed until given to the consumer or shall be unpackaged by the consumer. b. Only single- service articles may be given to the consumer for use. c. PHF /TCS foods shall be maintained at proper temperatures according to TFER (41 degrees or colder; 135 degrees or hotter). Meats shall be frozen and remain frozen until sold to the consumer d. Where PHF /TCS foods are stored on ice, dry ice, or other items intended for use to cool or freeze foods, a thermometer shall be present in the container holding such foods. The thermometer must show evidence of proper temperatures in which to maintain the food item in compliance with TFER. If at any time, food stored in this manner is not at proper temperatures, the Regulatory Authority shall dispose of the food, whether voluntarily or involuntarily, if it cannot be determined if it is safe to sell or offer for sale. e. Time as a public health control may not be used as the sole means for holding PHF /TCS foods safely f. Ice shall be readily drained and water or melting ice shall not come into contact with stored food. g. Foods cut or constituted on site such as soups, dips, relish, condiments and sauces shall be maintained at or below 41 degrees Fahrenheit and process must comply with the Equipment and Utensils section of these rules. Page 19 of 33 h. Digital thermometer accurate to +/- 2 degrees Fahrenheit shall be on site for use by the vendor. One thermometer shall be provided for each piece of equipment used to hold proper PHF /TCS temperatures. 7) Animals, prohibition. a. Animals may not be offered for sale, or given away at a Farmer's Market. b. Other than service animals that are conspicuously and properly identified, animals accompanying their owner, where allowed, shall be in a carrier or on a leash and under direct physical control of the owner. Animals may not be allowed within 10 feet of a food booth. c) Equipment and Utensils 1) Functionality of equipment. a. Except for a municipally owned Farmer's Market, equipment used to keep foods under this ordinance frozen or refrigerated shall comply with TFER and be able to maintain required temperatures for the duration of operations. Municipally owned Farmer's Markets shall have mechanical temperature controlled equipment capable of maintaining proper food temperatures as required in TFER. Mechanical food equipment shall obtain approval from the Regulatory Authority for use. b. Tables used within the vending area shall be made of non - porous material and be easily cleanable. c. Utensils used, only when approved for sampling, shall be made of non - wood material and disposable unless compliance for cleaning and sanitizing under Section 229.165 of TFER, or as amended, is provided and approved by the Regulatory Authority for use onsite. 2) Equipment numbers and capacities. a. At least one (1) hand wash sink or facility complying with the Temporary Food Establishment requirements in TFER (Section 229.170) shall be located within the immediate selling area of each food vendor approved to sample foods and available to each vendor where required by the Regulatory Authority. b. Manual ware - washing sink requirements. At least one (1) sink with at least three (3) compartments shall be provided for manually washing, rinsing, and sanitizing equipment and utensils for vendors that are approved to sample. c. Alternative manual ware - washing equipment may be used only by vendors when approved by the regulatory authority. Such written approval shall be evident and conspicuous on the permit placard issued to the vendor. d) Water, Plumbing, and Waste I) Where a hand sink is required, this hand sink shall be a portable hand sink capable of producing hot water, having a portable tanked water source and having a waste tank at least 2/3 size greater than potable source water tank. Hot generation and distribution systems shall be sufficient to meet the peak hot water demands throughout the operation. If approved by the regulatory authority, other means of hand washing may be used. Page 20 of 33 2) Where manual ware - washing is required using a hard — plumbed system, a licensed Plumbing inspector shall inspect the work prior to use. Backflow devices may be required. 3) Trash receptacles shall be available and shall be non - porous. Efforts shall be made to dispose of trash offsite in a timely manner so as not to encourage pests. e) Physical Facilities 1) Floor construction. Floors and floor coverings of all vending areas shall meet the requirements found in the TFER or be approved by the health officer. 2) Vending area shall be covered and protected to minimize presence of pests. f) Plan Review 1) Farmer's Market vendor application shall be submitted by each food vendor. 2) The plans and specifications shall indicate the following (whether existing or not): a. Proposed layout drawn from a "bird's -eye view" showing equipment arrangement and schedule including type and model and grease /waste storage receptacle location, b. Manufacturer's specifications sheets of all equipment c. List of all food items offered or vended, listing separately foods proposed to be sampled. d. Proof of food origin, copy of manufacturer's license, copy of storage license or description of approved source where food items will be obtained from; and copy of approved food labels. g) Administrative Process 1) All work must be inspected by the regulatory authority for compliance with these rules. After compliance with these rules is deemed to be met, a Food Vendor Permit may be approved. 2) Failure to follow the approved plans and specifications will result in a permit denial, suspension or revocation. 3) A notice, as required by this ordinance, is properly served when it is delivered to the holder of the permit or the person in charge, or when it is sent by registered or certified mail, return receipt requested, to the last known address of the holder of the permit. A copy of the notice shall be on file in the records of the regulatory authority. 4) The hearings provided by the HaBSCo shall be conducted by them at a time and place designated by HaBSCo. Based on the recorded evidence of such hearing, the regulatory authority shall make final findings, and shall sustain, modify or rescind any notice or order considered in the hearing. A written report of the hearing decision shall be furnished to the holder of the permit by the regulatory authority. 5) Condemnation of adulterated products or on site destruction. Food found to be adulterated shall be condemned and, if no appeal be taken from such determination of condemnation, such articles shall be destroyed for human food purposes under the supervision of an inspector. 6) All appeals from final suspension or revocation of a Food Vendor Permit shall be made in writing to the building official or his designee. The appeal shall be filed in writing within ten (10) days of the occurrence of the suspension or revocation. Page 21 of 33 The Consumer Health director (or his designee) shall attempt to hear the appeal within thirty (30) days after the notice of the appeal. The Consumer Health director shall have the power to reverse a decision of the regulatory authority where he finds that such a reversal will not affect the health and /or welfare of the public. All decisions of the Consumer Health Director or his designee shall be subject to review by the City Council at one of its regularly scheduled meetings. The decision of the Consumer Health Director or his designee will be final unless reversed by the City Council. Section 229.171(b)(2) is amended by adding the following: 171.1 Plans a) The owner shall submit plans and specifications for construction of work areas intended for use in the operation of a food establishment, and the location, size, and type of fixed equipment and interior finishes of such areas to the City of Denton for approval, before work is begun, when a food service establishment is constructed, or: 1) The nature of the operation changes; 2) The establishment is extensively remodeled; 3) When an existing structure is converted for use as a food service establishment; or 4) When the menu is changed to include more, or different menu items. b) In a food service establishment, the food preparation area shall be of adequate size and shall constitute a minimum of twenty -five (25) percent of the total square footage of the occupied permitted area or the minimum size deemed necessary by the Consumer Health Division. c) In a food service establishment, dry storage areas shall be of adequate size and shall constitute a minimum of fifteen (15) percent of the total square footage of the food preparation area. At the discretion of the Consumer Health Division, additional dry storage may be required. d) A menu must be submitted with all plans. If changes are made to the menu at a later time, the changes must be submitted for approval by the Consumer Health Division. e) All plans submitted shall include information on the following specifications: 1) Aisles and working spaces: Shall be unobstructed and of sufficient width to permit employees to readily perform their duties without contaminating food or food contact surfaces by clothing or personal contact. Minimum width of aisles shall be thirty-six (36) inches. 2) Auxiliary equipment: Water heaters, washing machines, dryers, remote connected refrigerators, compressors, and air conditioners must be located outside of food preparation areas. 3) Equipment and utensils: All equipment is to be NSF (National Safety Foundation) approved or commercial grade. 4) Floors: In food preparation areas, storage areas, utensil washing areas, restrooms, and dressing rooms, floors shall be constructed of smooth, durable, easily cleanable, non - absorbent materials of commercial grade. Flooring must be light colored, without texture or patterns that create difficult places to clean. In addition to the kitchen areas of day care centers, floors in food service areas of classrooms shall meet these requirements. The health officer shall establish approved floor surfaces in food preparation areas based upon the degree of preparation expected. Food establishments involved in Page 22 of 33 heavy food preparation shall incorporate quarry tile, cement -based terrazzo tile or an equivalent floor covering as approved by the health officer. Food establishments involved in light food preparation shall incorporate a commercial grade sheet vinyl or equivalent floor covering as approved by the health officer. Establishments involved in no food preparation shall incorporate sealed concrete, vinyl asbestos tile or an equivalent floor covering as approved by the health officer. An approved sealer (such as rubber cove base) shall be required at the floor /wall interface. If using ceramic tile squares in the food preparation area, the minimum size of tiles shall be 12" x 12" (twelve by twelve inches). 5) Ice machines: Are to be of adequate size and located in areas that meet the wall, floor and ceiling design standards for food preparation areas. Do not locate an ice machine near sources of potential contamination, such as exposed sewer lines, open stairwells, etc. 6) Refrigerators /freezers: Each mechanical refrigeration unit storing potentially hazardous foods must be of commercial type (even in day care center rooms) and each unit must have a numerically scaled indicating thermometer. All such units must hold foods at 41° degrees Fahrenheit or colder. Freezers must hold frozen foods at a temperature of zero (0) ° degrees Fahrenheit or colder. Walk -in coolers must be commercially built and have interiors of impervious, non - absorbent materials. Shelves must be resistant to rust. Mechanical refrigeration is required on salad bars, etc. for holding cold foods cold; holding foods in ice will not be acceptable. The processing and packaging of meat and poultry shall be conducted in a refrigerated room: a) Where the temperature is kept at 500 degrees F or less; or b) Which, along with processing equipment, undergoes a mid -shift cleanup after 4 (four) hours of operation. 7) Sinks: a) Shall be the number required by law. Stainless steel hand sinks shall be located within every twenty -five (25) linear feet of unobstructed space in food preparation and utensil washing areas so it is convenient for employees to wash hands as often as necessary. Hand -wash sinks shall be freestanding or wall hung. If a sink is too close to other equipment or sinks, a splashguard may be required. Sinks are to be of adequate size to allow for the thorough washing of hands and forearms. Liquid soap and paper towels are required at the hand sink and lotion hand sanitizer is required if gloves are not used. Lavatories, soap dispensers, hand - drying devices and all related fixtures shall be permanently mounted and kept clean and in good repair. b) A three (3) compartment sink that has basins large enough to allow immersion of the largest utensil and two (2) self draining drain - boards shall be required for manually washing, rinsing and sanitizing equipment and utensils. c) A stainless steel, four (4) compartment sink with two (2) self - draining drain - boards shall be installed in all bar areas. This requirement may be modified if glassware is sanitized in a commercial dishwasher. i. Knee pedals, electronic eye and metered faucets are not allowed in kitchen hand sinks but are allowable in public restrooms. ii. Blower dryers shall not be allowed as a means of drying hands in food preparation or dish wash areas. Common towels are also prohibited. Steam - mixing valves are prohibited. Page 23 of 33 iii. All dishwashing equipment shall be located in one area to prevent any cross contamination from soiled to clean dish storage or food preparation. 8) Storage rooms: Wood shelving is allowed for dry storage use only if finished with varnish or high gloss type paint to make sure it is smooth, non - absorbent, and easy to clean. Rooms are to have finished walls (minimum finish includes: taped and bedded sheetrock painted with high gloss paint) and commercial flooring with rubber cove base at floor /wall juncture. Dry storage rooms may contain refrigerators or freezers not requiring drains to the sewer for condensate removal. 9) Wait areas: If remote from food preparation or service areas, and used only for non - potentially hazardous beverage preparation, wait areas shall comply with the following requirements: a) Flooring shall be VCT or equivalent as approved by the Consumer Health Division b) Counters shall be laminate surface, solid surface, or equivalent c) Shelving below countertops shall be sealed, smooth, and easily cleanable 10) Toilet facilities: Public access shall not be through the kitchen. 11) Walls & ceilings: a) In food preparation, storage, utensil washing areas, and restrooms; walls, ceilings, and other architectural features shall be smooth (not textured), easily cleanable, non- absorbent, light in color, and durable. Fibrous acoustical drop -in ceiling panels are prohibited in these areas. Wall areas behind sinks or places that receive heavy use must be finished with FRP (fiberglass reinforced panels), ceramic tile, epoxy type paint or similar materials to withstand moisture. Bathroom walls shall be finished (as those listed above) behind plumbing fixtures to a height of at least four (4) feet up from the floor. Heavy food preparation areas behind stoves, grills, and fryers shall be of stainless steel from floor to ceiling. b) Surface mounted pipes shall not be installed tightly against the surface of the walls. There shall be a gap of at least two (2) inches between the pipe and the finished surface of the wall. c) All holes cut into walls and ceilings for pipes and conduits shall be sealed, and the clearance between the floor surface and the bottom edge of a door shall be tight fitting. 12) Water heater: Must be of adequate size to provide enough hot water for all hand washing, ware washing, and cleaning. Minimum size: fifty (50) gallons. Commercial tank -less water heaters may be used. 13) At the discretion of the City of Denton, additional sinks such as pot sinks, produce washing sinks, etc. may be required. 14) Kitchens in day care centers shall comply with all rules of this code except that the size of the kitchen may be determined on a case -by -case basis as approved by the City of Denton. 15) When a foodservice establishment is extensively remodeled it must be closed during any demolition especially if water or power service is interrupted. If remodeling pertains to only a portion of the establishment, the food preparation areas shall be protected by a solid wall that prevents any construction debris or other contaminates from entering the kitchen or food service areas. Page 24 of 33 Section 229.171(f) is amended by adding the following: 171.2 Permit required. a) It shall be unlawful for any person, association of persons, firm or corporation to operate a food service establishment in the city without having obtained a permit under the terms of this section. b) Any person desiring to operate a food service establishment shall make written application for a permit at the office of the consumer health division. The application shall include the applicant's full name, street and post office address, and whether such applicant is an individual, firm, or corporation, and, if a partnership, the names of the partners, together with their addresses shall be included; the location and type of the proposed establishment; and the signature of the applicant or applicants. If the application is for a temporary or seasonal food service establishment, it shall also include the inclusive dates of the proposed operation. 171.3 Application fee. a) The applicant shall submit the applicable nonrefundable fee as set forth by city council by ordinance, and the schedule of fees shall be available for public inspection at the offices of the city secretary or the health officer. Notwithstanding any other provision of this chapter the payment of any fees set under this section is not applicable to the City of Denton or any political subdivision or agency of the State of Texas and the United States of America. b) Application fees for seasonal food service establishments shall be the same as those for any other similar full time food service establishment. c) An applicant shall not, under any circumstances, be entitled to a refund of application fees after an application has been filed. d) Fee Exemptions 1) Food vendors operated by a public entity, such as D.I.S.D., university, community college, or the City, may be exempt from paying the Food Vendor fee, if approved by the regulatory authority. 2) A food vendor that is not permanently permitted by the regulatory authority, but that is a recognized charitable or philanthropic organization, or that has attained 501(c) (3) status from the Internal Revenue Service, may be exempt from paying the temporary food establishment fee for a permit for a temporary event, if approved by the regulatory authority. 3) Fee exemptions granted do not exempt any food establishment from the requirement of applying for, obtaining, and displaying a food vendor permit or from complying with the provisions of this section or any other applicable law. Permits are not transferable from one person to another or from one location to another location. A valid permit must be posted in or on every food establishment regulated by this ordinance, in a location conspicuous to the consumer. 171.4 Permit issuance. a) Upon receipt of an application and payment of the applicable fee, the health officer shall make an inspection of the premises where the business is to be conducted. If the premises comply with the terms of this article and with all current requirements of the zoning ordinance, other ordinances and state law, a permit shall be issued to the applicant upon payment of the permit fee. The applicable fees shall be set by city council by ordinance and the fee schedule shall be available for public inspection at the offices of the city secretary or the health officer. The applicant shall submit the applicable nonrefundable fee as set forth by city council before a permit will be issued. Page 25 of 33 b) Notwithstanding any other provision of this chapter, the payment of any fees set under this section is not applicable to the City of Denton or any political subdivision or agency of the State of Texas and the United States of America. 1) In the event a food permit application is rejected, the administrator shall notify the applicant of the rejection in writing. The notice shall specify the reasons why the permit is denied. The decision of the administrator is final unless the applicant shall file an appeal as provided in Section 13 -34. The decision of the administrator shall continue in effect until the final decision of the committee. 2) Permits shall not be transferable. A person who acquires an existing food service establishment shall not operate the establishment without obtaining a new permit within ten (10) days from the date of the change of ownership. 3) Upon change of ownership of a business, the new owner shall be required to meet current food establishment standards as defined in this code and state food rules before a permit may be issued by the Consumer Health Division. 4) If the establishment changes the name of the business only, they have 10 days from the date of the name change to notify the Consumer Health Division in writing. 5) Each food service establishment shall display all valid health permits in public view in the establishment. a) A permit shall be valid for a period of twelve (12) months with the expiration date being the last day of the month the permit was issued; temporary, and seasonal permits shall expire in accordance with their terms, unless suspended or revoked by the health officer. b) Acceptance of a permit issued by the administrator constitutes agreement by the establishment to: 1) Comply with all conditions of the permit and all applicable provisions of this chapter; 2) Allow the lawful inspection of its facility and operations. 3) Inspections of newly constructed establishments prior to opening shall be done: i. when equipment is set in place; ii. at least 2 weeks prior to opening; and iii. At least 2 days prior to opening. 171.5 If inspections are called for before the establishment is ready for them, the owner may be charged an administrative fee. 171.6 Expiration and renewal of permits. a) A permit lapses and is void unless the applicable permit fee is received by the City of Denton before the expiration date of the existing permit. b) A permit lapses and is void if the food service establishment operating under the permit constructs a new facility or changes ownership. c) Permit renewal fees that are not received by the expiration date, will be assessed an additional administrative fee. 171.7 Revocation of permit. The consumer health administrator may, after providing opportunity for a hearing, revoke a permit if the administrator determines that the manager or owner of a food service establishment has: Page 26 of 33 a) Interfered with the health officer in the performance of his duties; or b) Been convicted twice within a twelve -month period for a violation of this chapter; or c) Failed to comply with a hold order or a condemnation order; or d) Failed to comply, within the time specified, with an order to correct or abate an imminent and serious threat to the public health or safety; or e) Intentionally or knowingly impeded a lawful inspection by the health officer; or f) Been closed two (2) or more times within a twelve -month period for conditions that constituted a serious and imminent threat to public health. 171.8 Prior to revocation, the health officer shall notify the holder of the permit, or the person in charge of the food service establishment, in writing, of the reason for which the permit is being revoked and that the permit shall be revoked at the end of five (5) days following service of such notice unless a written request for a hearing is filed with the city by the holder of the permit within such five -day period. If no request for hearing is filed within the five (5) calendar day period, a final notice of revocation shall be served. Upon receipt of the final notice of revocation, the food service establishment shall immediately cease operation and the permit shall be considered finally revoked. 171.8 Application after revocation. Whenever a revocation of a permit has become final, the holder of the revoked permit may make written application for a new permit. 171.9 Service of notices. A notice provided for in this article is properly served when it is delivered to the holder of the permit, or the person in charge of the food service establishment, or when it is sent by registered or certified mail, return receipt requested, to the last known address of the holder of the permit. A copy of the notice shall be filed in the records of the city secretary. 171.10 Appeal from denial or revocation of a permit. If the health officer denies the issuance of a permit or a permit is finally revoked, the officer shall send the applicant or permit holder by certified mail, return receipt requested, written notice of the denial or revocation and of the right to an appeal. The applicant or permit holder may appeal the decision of the health officer to the Health and Building Standards Commission — (HaBSCo) by giving written notice to the administrator within ten (10) days of the receipt of the denial or revocation notice. 171.11 Hearing. A hearing of the appeal shall be conducted by the Health and Building Standards Commission. The hearing shall be held at a time and place designated by the Health and Building Standards Commission. The Health and Building Standards Commission shall hear and consider evidence offered by any interested person. Based upon the recorded evidence of such hearing, the Health and Building Standards Commission shall sustain, modify or rescind any notice, or order, considered in the hearing by a majority vote and provide a written report of the hearing decision to the holder of the permit. The decision of the Health and Building Standards Commission is final as to administrative remedies, and no rehearing may be granted. Once the decision of the Health and Building Standards Commission is final under this section, the applicant or permit holder may appeal the decision to the state district court or court of appropriate jurisdiction. 171.12 Registration of food service establishments based outside city. Page 27 of 33 A food service establishment or commissary operating from a facility located outside the city that sells, distributes or transports food inside the city may not conduct operations inside the city unless the food service establishment: a) Furnishes the health officer with a certificate from a health authority having jurisdiction over the establishment indicating that the establishment complies with applicable health laws; or b) Furnishes the health officer other information that the administrator determines is necessary to enforce the provisions of this chapter or otherwise protect the public health or safety. Section 229.171(g)(6) is amended by adding the following: 171.13 Authority to inspect. a) The health officer may inspect any and all things offered for sale, given in exchange or given away for use as food or drink for human consumption, and he /she shall have the authority to enter any food service establishment in the city, as authorized by law for the purpose of such inspection. b) The Consumer Health Division will conduct risk -based inspections and where the risk of food -borne illness is low, the Consumer Health Division, at its discretion, may lower the number of required inspections performed to a minimum of one each year. However, if the Consumer Health Division feels that a food service establishment poses a higher risk of food -borne illness, the Consumer Health Division shall conduct inspections as often as necessary to ensure enforcement of these rules. 171.14 Power to examine food service establishment records. a) The health officer shall have the authority to examine the records of a food service establishment in order to ensure compliance with all provisions of this ordinance or of state law. b) The health officer shall have the authority to require written documentation of cool down methods used and reheating times in order to verify compliance with food temperature items on the foodservice establishment inspection form. Section 229.171(i)(2) is amended by adding the following: 171.15 The city health officer, after proper identification, shall be permitted to enter any food service establishment at any reasonable time for the purpose of making inspections to determine compliance with these rules. The officer shall be permitted to examine the records of the establishment to obtain information pertaining to food and supplies purchased, received, or used, or to persons employed. 171.16 The following types of establishments are exempt from inspection requirements: a) Group homes; b) Establishments selling only commercially packaged, non - potentially hazardous foods; c) Vending machines that sells only commercially packaged, Non -PHF; and d) Facilities operated by nonprofit organizations for their members, families and invited guests. 171.17 Facilities are not exempt when food service is provided in conjunction with a child care facility, retirement center, hospital, school, indigent feeding program, or public fundraising events. Section 229.1710) is amended by adding the following: 171.18 Report of inspections. Page 28 of 33 Whenever an inspection of a foodservice establishment is done, the health officer shall record the findings on the inspection report form. The inspection report form shall summarize the requirements of these rules and shall set forth a weighted point value for each requirement. Inspection remarks shall be written to reference, by section number, the section violated and shall state the correction to be made. The rating score of the establishment shall be the total of the weighted point values for all violations, subtracted from one hundred (100). The health officer shall furnish a copy of the inspection report form to the person in charge of the establishment at the conclusion of the inspection. Section 229.1710)(6) is amended by adding the following: 171.19 Re- inspection. a) Any food service establishment inspected by the City of Denton Consumer Health Division which receives a score of seventy -five (75) or below on any inspection shall be re- inspected. b) This re- inspection shall be performed in the same manner, using the same form, as the previous inspection. c) If, upon subsequent re- inspection of the establishment, the health officer finds that sufficient measures were not taken to bring the score above a total of seventy -five (75), he will issue a citation and schedule a date for another re- inspection. The health officer shall continue to perform re- inspections until the establishment has made sufficient progress to warrant a score above seventy -five (75). The issuance of a citation for failure to meet the required score upon re- inspection shall not in any way limit the ability of the inspector to issue any other citation for any violation of this chapter. d) Re- inspection for failure to meet the required score shall be performed within fourteen (14) calendar days immediately following the original inspection, or as soon as possible thereafter, except that where an establishment is closed due to a score below sixty (60), pursuant to section 13 -44, the original inspector shall determine the time of the re- inspection. e) Any food service establishment owner or manager that receives a score which he feels is unacceptable, may request a re- inspection. A re- inspection fee shall be required and shall be paid before the re- inspection will be performed. The health inspector shall perform the requested re- inspection within two weeks of the re- inspection fee payment. Only one re- inspection may be requested within any six (6) month period. 171.20 Fee for re- inspection. a) The fee for re- inspection shall be one -half the annual permit fee of the establishment receiving the re- inspection. b) A re- inspection fee will be charged for each re- inspection necessary to bring the food establishment's score above seventy -five (75). c) Payment of the re- inspection fee shall not void, or in any way affect the responsibility of the owner or permit holder for payment of any fines for any other violations of this chapter. d) The person, partnership, or corporation listed as "owner" on the original application shall be responsible for payment of any and all fees, including re- inspection fees. e) Payment of the re- inspection fee shall be made within 5 business days after the re- inspection is performed. 171.21 Violations. Page 29 of 33 a) The Building Official of the City of Denton, or any of his designated employees, shall have the responsibility and power to enforce all provisions of this chapter within the corporate limits of the City of Denton, Texas. b) Whenever the health officer determines that there has been a violation of any provision of this chapter, which in his /her judgment can jeopardize the public health, or for violation of any items, which have been noted as problems on two (2) or more consecutive inspection reports, the health officer may issue a written citation for said person to appear in court. c) It shall be unlawful for any person to knowingly give the health officer a false name when such officer requests the name of said person for purposes of enforcing the provisions of this chapter. Section 229.171(k) is amended by adding the following: 171.22 Authority to close. a) The health officer shall close without warning any building or place described in this chapter and prevent its use for the storage, manufacture, or sale of food or drink for human consumption whenever: 1) The health officer, upon inspection of an establishment, finds sufficient violations which cause the rating score of said establishment to be below a total of sixty (60) points; 2) The health officer finds that an establishment is operating with no working refrigeration units; 3) The health officer finds that an establishment is operating without running water or hot water for a period of more than one (1) hour; 4) The health officer finds an establishment is operating without a functioning ware - washing machine or adequate sinks for manual ware - washing; and 5) The health officer finds any food service establishment with an unreasonable infestation of rodents or insects. b) It shall be the duty of the health officer to post a notice of closure for such conditions at the entrance of such building or place and to maintain the same until such conditions or practices have been removed or abated. c) No person shall remove or alter in any way a sign, which has been posted by the health officer. Section 229.171(n) is amended by adding the following: 171.23 Examination and condemnation of food. The health officer shall tag, label, or otherwise identify any food subject to the hold order. No food subject to a hold order shall be used, served, or moved from the establishment. The health officer shall permit storage of the food under conditions specified in the hold order, unless storage is not possible without risk to the public health, in which case immediate destruction shall be ordered and accomplished. 171.24 Appeal from hold order. The hold order shall state that a request for hearing to appeal the hold order may be filed within five (5) days and that if no hearing is requested, the food shall be destroyed. If requested, a hearing shall be held on the basis of evidence produced at that hearing by the Health and Building Standards Commission. The Health and Building Standards Commission may vacate the hold order or direct the owner or person in charge of the food to denature or destroy such food or to bring it into compliance with the provisions of this chapter. Page 30 of 33 SECTION 2. The Health Permit Fee Schedule set forth in Exhibit "A" attached hereto and made a part hereof for all purposes, is hereby adopted and authorized to be imposed for the purposes of application for, and issuance of, permits required for compliance with the provisions of Chapter 13 "Food and Food Service Establishments ". SECTION 3. This ordinance shall repeal every prior ordinance in conflict herewith, but only insofar as the portion of such prior ordinance shall be in conflict; and as to all other sections of the ordinance not in direct conflict herewith, this ordinance shall be and is hereby made cumulative except as to such prior ordinances or portions thereof as are expressly repealed hereby. SECTION 4. 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 5. If any provision of this ordinance or application thereof to any person or circumstance is held invalid by any court, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares that it would have enacted the remaining portions despite any such validity. SECTION 6. Save and except as amended hereby, all the sections, subsections, and clauses of Chapter 13 Food and Service Establishments of the Code of Ordinances of the City of Denton, Texas shall remain in full force and effect. SECTION 7. This ordinance shall become effective, after its passage and approval on, , 2014, 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 52014 ATTEST: JENNIFER WALTERS, CITY SECRETARY I: it APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: MARK A. BURROUGHS, MAYOR Page 31 of 33 EXHIBIT A: Health Permit Fee Schedule: See new fees hi- lighted in yellow Type of Health Fee's Fee Amount 1. Two year food handler card ... $25.00 2. Manager Certification Registering Fee with the City... $10.00 3. Swimming Pool Operator Certification ... $50.00 4. Replacement Cards... $ 5.00 5. Beer and wine permit- New application processing fee ... $25.00 6. Wine and beer retailer's permit on premises ... '/2 of TABC charge 7. Wine and beer retailer's off premises ... i/2 of TABC charge 8. Retail dealer's on premise license beer only ... '/2 of TABC charge 9. Retail dealer's on premise late hours license ... '/2 of TABC charge 10. Mixed Beverage permit - application fee ... $25.00 11. Mixed Beverage permit fee '/2 of TABC charge 12. Mixed Beverage Late hours '/2 of TABC charge 13. Annual swimming pool permit ... $160.00 14. Re- inspection Fee for pools ... $ 80.00 15. Small Restaurant <= 2,000 sq ft... $310.00 16. Large Restaurant >= 2,001 sq ft... $485.00 17. Small Grocery Store <= 12,000 sq ft... $325.00 18. Large Grocery Store >= 12,001 sq ft... $450.00 19. Convenience Store, no Deli $250.00 20. Convenience Store with Deli $300.00 21. Bars $275.00 22. Concession Stands, Seasonal Permits $175.00 23. Mobile Food Unit - Class 1 (pre - packaged foods) $175.00 24. Mobile Food Unit - Class 2 (foods prepared on vehicle) $310.00 25. Mobile Food Unit- Class 3 $175.00 26. Mobile Food Unit - Class 4 $ 75.00 27. Daycare Facility... $150.00 plus $1.00 /each child licensed 28. Nursing Home... $275.00 29. School Cafeteria... $150.00 30. Temporary Permit ... $ 35.00 31. *Farmer's /Community Market Annual Permit ... $240.00 32. *Farmer's /Community Market Monthly Permit ... $ 40.00 33. * *Application fee for all new permits $250.00 Page 32 of 33 34. ** *Administrative Fee ... $ 35.00 Fees are non - refundable. *Sales of whole or uncut produce shall be exempt from permits and fees * *Application fee shall not apply to Temporary Food Service Establishments * ** Administrative fees may be charged for the following, but not limited to: late payment of any annual health permit fees; late application and payment of fees for temporary events; failure to have a mobile unit inspected when due; change of name of business only; re- inspections of new or remodeled establishments when contractor calls for inspection but is not ready when the inspectors begin the inspection. Page 33 of 33 AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Economic Development ACM: John Cabrales, Jr. SUBJECT Consider adoption of an ordinance amending Ordinance No. 2012 -366, by establishing term limits for the Board of Directors for Tax Increment Reinvestment Zone Number Two concurrent with the terms of the Economic Development Partnership Board; repealing all conflicting ordinances and portions thereof, and providing an effective date. BACKGROUND On December 17, 2012, the City Council adopted an Ordinance No. 2012 -366 designating and describing the boundaries of Tax Increment Reinvestment Zone Number Two (Westpark) to provide the public infrastructure necessary to encourage development in the largest industrially zoned area in the City. TIRZ Two Board Structure: The TIRZ board is comprised of eleven members. The City Council appointed nine members to the board on February 12, 2013. The governing body of Denton County, which levies taxes on real property in TIRZ Number Two, appointed one board member, Everette Newland. Rayzor Investments LLP, the "Developer," appointed Selwyn Rayzor. The TIRZ Two board City Council appointments included the nine Economic Development Partnership (EDP) board members and the Denton County and Developer representative presented below. Virgil Strange Axiom Commercial Company Greg Johnson Versus Real Estate Advisors Denny Aldridge James Wood Auto Park Cleve Breedlove Access Bank of Texas Marls Burroughs City of Denton Mayor Dalton Gregory City of Denton Councilman Caleb O'Rear Denton Regional Medical Center Dr. V. Lane Rawlins President, University of North Texas Carrell Ann Simmons Meridian Bank of Texas Everette Newland Denton County Selwyn Rayzor Rayzor Investments, LLC TIRZ Board membership Agenda Information Sheet February 4, 2014 Page 2 This board stricture was recommended to streamline the process, as the same group of individuals would also be working on other incentive agreements for the project. The following changes to Section 4 A and B of Ordinance No. 2012 -366 establish term limits concurrent with Economic Development Partnership Board: A. The Board of Directors shall consist of eleven (11) members, nine (9) of whom shall be appointed by the City Council of the City. All members appointed to the board shall meet the eligibility requirements set forth in the Act. Board membership shall consist of the following: 1. The nine members of the Economic Development Partnership Board; 2. One member shall be appointed by the governing body of Denton County; and 3. One member shall be appointed by the "Developer," Rayzor Investments, LLP. B. The terms of the board members shall be two -year terms; the nine (9) members appointed by City Council will serve terms concurrent with their EDP terms. A board member may serve no more than three consecutive terms. PRIOR ACTION/REVIEW On February 12, 2013, the City Council appointed the TIRZ Two board. The City Council adopted Ordinance 2013 -033 accepting an Agreement with Denton County to participate in Tax Increment Reinvestment Zone, Number Two on February 5, 2013. The City Council adopted Ordinance No. 2012 -366 designating and describing the boundaries of a TIRZ Number Two; established the duration of the Zone; established a Tax Increment Fund and established a Board of Directors for the Tax Increment Reinvestment Zone on December 18, 2012. The City Council also received reports on the TIRZ proposal at the July 17, 2012, September 11, 2012 and December 7, 2012 (Closed Session) meetings. FISCAL INFORMATION It is estimated that the TIRZ would generate approximately $14,275,430 over a 25 year period for infrastructure improvements. The City and County would contribute $10,033,470 and $4,241,960 into the TIRZ fund, respectively. The City would retain $43,926,530 and the County would retain $18,862,910 over the life of the TIRZ. TW Board membership Agenda Information Sheet February 4, 2014 Page 3 EXHIBITS 1. Ordinance 2012 -366 2. Ordinance Prepared by: Erica Sullivan, Economic Development Analyst Economic Development Department Respectfully submitted, Aimee Bissett, Director Economic Development Department -J - UodaMepartmentsVegakour documentslordinances1121ecodevo westpark tirz.doc EXHIBIT 1 ORDINANCE NO. 2012 -366 AN ORDINANCE DESIGNATING AND DESCRIBING THE BOUNDARIES OF A TAX INCREMENT REINVESTMENT ZONE TWO FOR AN INDUSTRIAL DISTRICT OF DENTON, TEXAS; ESTABLISHING THE DURATION OF THE ZONE; ESTABLISHING A TAX INCREMENT FUND; ESTABLISHING A BOARD OF DIRECTORS FOR THE TAX INCREMENT REINVESTMENT ZONE; MAKING CERTAIN FINDINGS AND OTHER MATTERS RELATED THERETO; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas, (the "City "), desires to promote the development of an industrial area within the City of Denton by the creation of a Tax Increment Financing Reinvestment Zone, as authorized by the Tax Increment Financing Act, Chapter 311 of the Texas Tax Code, Vernon's Texas Codes Annotated (the "Act "); and WHEREAS, the City has called a public hearing to hear the public comments on the creation of the proposed Tax Increment Reinvestment Zone and its benefits to the City and the property in the proposed Tax Increment Reinvestment Zone; and WHEREAS, notice of such public hearing was published in the Denton Record - Chronicle, a daily paper of general circulation in the City, such publication date being not later than seven (7) days prior to the date of the public hearing; and WHEREAS, such hearing was convened at the time and place mentioned in the published notice, on the 18h day of December 2012, at 6:30 p.m., in Council Chambers of the City of Denton, Texas; and WHEREAS, the City, at such hearing, invited any interested person, or his /her representative, to appear and speak for or against the creation of the Tax Increment Reinvestment Zone the duration of the Tax Increment Reinvestment Zone, the boundaries of the proposed Tax Increment Reinvestment Zone, whether all or part of the territory which is described in Exhibit "A" attached hereto and depicted on the map attached hereto as Exhibit `B" should be included in such proposed Tax Increment Reinvestment Zone, the concept of tax increment financing and the appointment of a board of directors of the proposed Tax Increment Reinvestment Zone; and WHEREAS, all owners of property located within the proposed Tax Increment Reinvestment Zone and all other taxing units and other interested persons were given a reasonable opportunity at such public hearing to protest the creation of the proposed Tax Increment Reinvestment Zone andlor the inclusion of their property in such; Tax Increment Reinvestment Zone; and WHEREAS, the proponents of the Tax Increment Reinvestment Zone offered evidence, in favor of all of the foregoing matters relating to the creation of the Tax Increment Reinvestment Zone, and opponents of the Tax Increment Reinvestment Zone were given the opportunity to appear to contest creation of the zone, after which the hearing was closed; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The facts and recitations contained in the preamble of this ordinance are hereby found and declared to be true and correct. EXHIBIT 1 SECTION 2. The City Council, after conducting such hearing and having heard such evidence and testimony, has made the following findings and determinations based on the evidence and testimony presented to it: a) The public hearing on adoption of the Tax Increment Financing Reinvestment Zone has been properly called, held and conducted and that notice of such hearing has been published as required by law b) Creation of the proposed Tax Increment Reinvestment Zone with boundaries as described in Exhibits "A" and "B" will result in benefits to the City, its residents, and property owners, in general, and to the property, residents and property owners in the Tax Increment Reinvestment Zone. c) The Tax Increment Reinvestment Zone, as defined in Exhibits "A" and "B ", meets the criteria for the creation of a Tax Increment Financing Reinvestment Zone set forth in the Act in that: (i) It is a contiguous geographic area located wholly within the corporate limits of the City. (ii) It substantially impairs or arrests the sound growth of the municipality creating the zone or constitutes an economic or social liability in its present condition and use because of the presence of: a. The area has a predominance of defective or inadequate sidewalks or street layout; and /or b. Predominately open or undeveloped and, because of obsolete platting, deterioration of structures or site improvements, or other factors. (iii) The proposed project plan includes the use of land in the zone with access to an industrial rail spur that serves the park. a) That 30 percent or less of the property in the proposed Tax Increment Financing Reinvestment Zone, excluding property that is publicly owned, is used for residential purposes, which is defined in the Act as any property occupied by a house which has less than five living units. b) The total appraised value of all taxable real property in the proposed Tax Increment Financing Reinvestment Zone according to the most recent appraisal rolls of the City, together with the total appraised value of taxable real property in all other existing Tax Increment Reinvestment Zones within the City, according to the most recent appraisal rolls of the City, does not exceed 25 percent of the current total appraised value of taxable real property in the City and in the industrial districts created by the City, if any. c) The improvements in the Tax Increment Reinvestment Zone will significantly enhance the value of all taxable real property in the Tax Increment Financing Reinvestment Zone. Ordinance Designating TIRZ City of Denton, Texas EXHIBIT 1 d) The development or redevelopment of the property in the proposed Tax Increment Financing Reinvestment Zone will not occur solely through private investment in the reasonable foreseeable future. SECTION 3. The City hereby creates a Tax Increment Reinvestment Zone over the area described in Exhibit "A," attached hereto and depicted in the map attached hereto as Exhibit "B," and such Tax Increment Reinvestment Zone shall hereafter be identified as Tax Increment Reinvestment Zone Number Two, City of Denton, Texas (the "Zone" or "Reinvestment Zone "). SECTION 4. There is hereby established a board of directors for the Zone that shall consist of eleven members. The board of directors of Tax Increment Reinvestment Zone Number Two shall be appointed as follows: a) Nine of the eleven member board shall be appointed by the City Council as provided here within sixty (60) days of the passage of this ordinance or within a reasonable time thereafter. All members appointed to the board shall meet the eligibility requirements set forth in the Act. The governing body of Denton County, which levies taxes on real property in Tax Increment Reinvestment Zone Number Two, has the right to appoint a single board member. Rayzor Investments, LLP the "Developer" has the right to appoint a single board member. b) The terms of the board members shall be two -year terms. A board member may serve no more than three consecutive terms. At the first meeting of the Board of Directors, the board members will draw lots to establish the staggering of terms with 5 of the board members serving an initial tern of one year. The City Council shall designate a member of the board to serve as chairman of the board of directors, and the board shall elect from its members a vice chairman and other officers as it sees fit. c) The board of directors shall make recommendations to the City Council concerning the administration of the Zone. It shall prepare and adopt a project plan and Tax Increment Reinvestment Zone financing plan for the Zone and must submit such plans to the City Council for its approval. The board of directors shall possess all powers necessary to prepare, implement and monitor such project plan and financing plan for the Tax Increment Reinvestment Zone as the City Council considers advisable, including the submission of an annual report on the status of the Zone. Any powers not herein delegated to the board of directors are specifically reserved to the City Council. SECTION 5. The Zone shall take effect immediately upon passage of this ordinance, and the termination of the Zone shall occur on December 31, 2036, or at an earlier time designated by subsequent ordinance of the City Council in the event the City determines that the Zone should be terminated due to insufficient private investment, accelerated private investment or other good cause, or at such time as all project costs and tax increment bonds, if any, and the interest thereon, have been paid in full. The base value within the Zone is established as of January 2012. Ordinance Designating TfRZ City of Denton, Texas EXHIBIT 1 SECTION 6. The Tax Increment Base for the Zone, which is the total appraised value of all taxable real property located in the Zone, is to be determined as of December 31, 2012, the year in which the Zone was designated a Tax Increment Reinvestment Zone. SECTION 7. Pursuant to Section 311.013(1) of the Tax Code, the City herby determines that the following portions of the tax increment produced by the City of Denton shall be paid into the tax increment fund for the reinvestment zone: Jurisdiction Years 2012 Tax Rate % of Tax Rate $ /$100 Value City of Denton 1 -10 0.6897500 40 11 -25 0.7197500 40 Denton County 1 -10 0.2828670 40 11 -25 0.3128670 40 SECTION 8. There is hereby created and established a Tax Increment Fund for the Zone which may be divided into such subaccounts as may be authorized by subsequent resolution or ordinance, into which all Tax Increments, less any of the amounts not required to be paid into the Tax Increment Fund pursuant to the Act, are to be deposited. The Tax Increment Fund and any subaccounts are to be maintained in an account at the City Treasurer's affiliated depository bank of the City and shall be secured in the manner prescribed by law for funds of Texas cities. In addition, all revenues from the sale of any tax increment bonds and notes hereafter issued by the City, revenues from the sale of any property acquired as part of the tax increment financing plan and other revenues to be dedicated to and used in the Zone shall be deposited into such fund or subaccount from which money will be disbursed to pay project costs for the Zone or to satisfy the claims of holders of tax increment bonds or notes issued for the Zone. SECTION 9. If any section, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Ordinance. SECTION 10. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this 181h day of December 2012. MARK A. B OL� HS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Ordinance Designating TIRZ City of Denton, Texas APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY EXHIBIT 1 Ordinance Designating TIRZ City of Denton. Texas EXHIBIT 1 EXHIBIT A CITY OF DENTON TAX INCREMENT REINVESTMENT ZONE No. 2 BOUNDARY DESCRIPTION TRACT No.1 BEGINNING at the southwest corner of the 9.27 acre T. Toby, Tract 4 and the north right -of- way line of Airport Road, the POINT OF BEGINNING; THENCE, north along the west boundary of the 9.27 acre T. Toby, Tract 4 to its northwest corner and the southwest boundary of the 41.629 acre T. Toby, Tract 3 (Denton Municipal Airport); THENCE, northwest along the southwest boundary of the 41.629 acre T. Toby, Tract 3 (Denton Municipal Airport) to its southwest corner and the east right -of -way of Sabre Road; THENCE, northwesterly along the east right -of -way of Sabre Road and the westerly boundary of the 41.629 acre T. Toby, Tract 3 (Denton Municipal Airport) and the 66.946 acre T. Toby, Tract 2 to the northwest corner of the 66.946 acre T. Toby, Tract 2; THENCE, east along the north boundary of the 66.946 acre T. Toby, Tract 2 to the southwest corner of the 148.5803 acre J. Scott, Tract 1; THENCE, north along the west boundary of the 148.5803 acre J. Scott, Tract 1 to its northwest corner and the south right -of -way of Jim Christal Road; THENCE, east along the north boundary of the 148.5803 acre J. Scott, Tract 1 to its northeast corner and the west right -of -way of Western Blvd.; THENCE, due east across Western Blvd. to its east right -of -way and the northwest corner of the 20.7207 acre J. Bacon, Tract 1; THENCE, east along the south right -of -way of Jim Christal Road and the north boundaries of the 20.7207 acre J. Bacon, Tract 1 and the 173.055 acre West Park Addition, Phase 2, Block A, Lot 2a to the southwest corner of the 24.9953 acre B.b.b, Tract 15 -17; THENCE, north along the west boundaries of the 24.9953 acre B.b.b., Tract 15 -17, the 39.999 acre B.b.b., Tract 18 and the 10 acre B.b.b, Tract 21a to the northwest corner of the 10 acre B.b.b, Tract 21 a; THENCE, east and south along the north and east boundary of the 10 acre B.b.b, Tract 21 a to its southeast corner and the north boundary of the 39.999 acre B.b.b, Tract 18; THENCE, east along the north boundary of the 39.999 acre B.b.b., Tract 18 to its northeast corner and the west boundary of the 43.3069 acre B.b.b, Tract 12 -14; EXHIBIT 1 THENCE, north along the west boundaries of the 43.3069 acre B.b.b, Tract 12 -14 and the 19.5 73 8 acre B.b.b, Tract 11 to the northwest corner of the 19.5738 acre B.b.b, Tract 11 and the south right -of -way of US Highway 380; THENCE, east along the north boundary of the 19.5738 acre B.b.b., Tract 11 and the south right - of -way of US Highway 380 to the northeast corner of the 19.5738 acre B.b.b, Tract 11; THENCE, southeasterly along the east boundaries of the 19.5738 acre B.b.b, Tract 11 and the 43.3069 acre B.b.b, Tract 12 -14, continuing westerly along the south boundary of the 43.3069 acre B.b.b, Tract 12 -14 to its southwest corner and the southeast corner of the 39.999 acre B.b.b, Tract 18; THENCE; west along the south boundary of the 39.999 acre B.b.b, Tract 18 to the northeast corner of the 24.9953 acre B.b.b., Tract 15 -17; THENCE, south along the east boundary of the 24.9953 acre B.b.b., Tract 15 -17 to its southeast corner and the north right -of -way of Jim Christal Road; THENCE, easterly along the north right -of -way of Jim Christal Road to the northwest corner of the 16.3051 acre J. Perry, Tract la; THENCE, northeasterly, south, east, north and east along the north boundary of the 16.3051 acre J. Perry, Tract la to its northeast corner; Thence, south along the east boundary of the 16.3051 acre J. Perry, Tract la to the northwest corner of the 18.3427 acre E. Puchalshi, Tract 295; THENCE, east along the north boundary of the 18.3427 acre E. Puchalski, Tract 295 to its northeast corner; THENCE, southeasterly along the east boundaries of the 18.3427 acre E. Puchalski, Tract 295 and the 10.347 acre E. Puchalski, Tract 295a to its southeast corner and the northeast corner of the 31.0 acre E. Puchalski, Tract 296; THENCE, southeasterly, west and south along the east boundary of the 31.0 acre E. Puchalski, Tract 296 to its southeast corner and the north boundary of the north part of the 31.305 acre E. Puchalski, Tracts 527, 528, and 529; THENCE, east along the north boundary of the north part of the 31.305 acre E. Puchalski, Tracts 527, 528, and 529 to its northeast corner; Thence, southwesterly along the east boundary and west along the south boundary of the north part of the 31.305 acre E. Puchalski, Tracts 527, 528, and 529 to the east right -of -way of Precision Road; 2 EXHIBIT 1 THENCE, west across Precision Road to its west right -of -way and the southeast corner of the 173.055 acre West Park Addition, Phase 2, Block A, Lot 2a; THENCE, west along the south boundary of the 173.055 acre West Park Addition, Phase 2, Block A, Lot 2a to the northeast corner of the 5.922 acre West Park Addition, Phase 2, Block A, Lot 3; THENCE, south and west along the east and south boundary of the 5.922 acre West Park Addition, Phase 2, Block A, Lot 3, continuing west along the south boundary of the 6.889 acre R. D. Wells Interchange, Block 1, Lot 1 (City of Denton) to the east boundary of the 173.055 acre West Park Addition, Phase 2, Block A, Lot 2a; THENCE, south along the east boundary of the 173.055 acre West Park Addition, Phase 2, Block A, Lot 2a to its southeast corner and the north right -of -way of Airport Road; THENCE, west along the north right -of -way of Airport Road and the south boundary of the 173.055 acre West Park Addition, Phase 2, Block A, Lot 2a to its southwest corner and the east right -of -way of Western Blvd.; THENCE, west across Western Blvd. to its west right -of -way and the southeast corner of the 66.946 acre T. Toby, Tract 2; THENCE, west along the north right -of -way of Airport Road and the south boundaries of the 66.946 acre T. Toby, Tract 2, the 41.629 acre T. Toby, Tract 3 (Denton Municipal Airport) and the 9.27 acre T. Toby, Tract 4 and the POINT OF BEGINNING. TRACT No. 2 The entire south part of the 31.305 acre E. Puchalski; Tract 527, 528, and 529. TRACT No.1 and TRACT No. 2 contain a total of approximately 848.8 acres of which approximately 48.5 acres are municipally owned. 3 EXHIBIT U Exhibit B: Westpark TIRZ This map ismgraphic representation prepared by the City of Denton and is intended for use only as m reference. Data depicted is not guaranteed for accuracy and may be auN*ot to revision at any time without notification. ARngisteed Surveyor for the State of Texas was not consulted. For Survey level ancuraoy, supervision and certification of the produced data byaRegistered Professional Land Surveyor for the State of Texas would need to be performed. 0 412.5825 1,650 2,475 3,300 Feet sAlegal \our documents \ordinances \14 \tirz ord.doc ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE NO. 2012 -366 BY ESTABLISHING TERM LIMITS FOR THE BOARD OF DIRECTORS FOR TAX INCREMENT REINVESTMENT ZONE NUMBER TWO CONCURRENT WITH THE TERMS OF THE ECONOMIC DEVELOPMENT PARTNERSHIP BOARD; REPEALLING ALL CONFLICTING ORDINANCES AND PORTIONS THEREOF; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on December 18, 2012, the City Council of the City of Denton, Texas, (the "City "), adopted Ordinance No. 2012 -366, which designated and described the boundaries of a TIRZ Number Two; established the duration of the Zone; established a Tax Increment Fund and established a Board of Directors for the Tax Increment Reinvestment Zone; and WHEREAS, it is deemed proper to establish term limits concurrent with the Economic Development Partnership Board; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Subsection a. and b. of Section 4 of Ordinance No. 2012 -366 is amended as follows: a) The Board of Directors shall consist of eleven (11) members, nine (9) of whom shall be appointed by the City Council of the City. All members appointed to the board shall meet the eligibility requirements set forth in the Act. Board membership shall consist of the following: 1. The nine members of the Economic Development Partnership Board ( "EDP "); and 2. One member shall be appointed by the governing body of Denton County; and 3. One member shall be appointed by the "Developer," Rayzor Investments, LLP. b) The terms of the board members shall be two -year terms; the nine (9) members appointed by City Council will serve terms concurrent with their EDP terms. A board member may serve no more than three consecutive terms. SECTION 2. All of the other provisions of Ordinance No. 2012 -366 remain in full force and effect. SECTION 3. If any section, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Ordinance. sAlegal\ our documents \ordinances \14 \tirz ord.doc SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. ATTEST: JENNIFER WALTERS, CITY SECRETARY I: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: MARK A. BURROUGHS, MAYOR Page 2 Ordinance Designating TIRZ City of Denton, Texas s:Alegal \our documents \miscellaneous \14 \ais extension of standstill agreement.doc AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Legal Department ACM: Anita Burgess, City Attorney hi,dM6 aa� l Vu:druffl SUBJECT: Consider approval of an ordinance of the City of Denton, Texas amending Ordinance No. 2013 -330 to extend a "Standstill Agreement" between the City of Denton, Texas and EagleRidge Operating, LLC until midnight on March 4, 2014, and retroactive to 11:59 p.m., January 31, 2014, with regard to certain disputes and issues over gas drilling in the City to allow the parties an opportunity to engage in global settlement negotiations as it concerns unresolved issues between them; and providing for an effective date. RECOMMENDATION: The extension of this Standstill Agreement will be discussed in closed session. Anita urgess Attachment: Ordinance sAlegal \our documents \ordinances \14\statidstill amended ordinance & ex a.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING ORDINANCE NO. 2013 -330 TO EXTEND A "STANDSTILL AGREEMENT" BETWEEN THE CITY OF DENTON, TEXAS AND EAGLERIDGE OPERATING, LLC UNTIL MIDNIGHT ON MARCH 4, 2014 AND RETROACTIVE TO 11:59 P.M., JANUARY 31, 2014 WITH REGARD TO CERTAIN DISPUTES AND ISSUES OVER GAS DRILLING IN THE CITY TO ALLOW THE PARTIES AN OPPORTUNITY TO ENGAGE IN GLOBAL SETTLEMENT NEGOTIATIONS AS IT CONCERNS UNRESOLVED ISSUES BETWEEN THEM; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City enacted a "Standstill Agreement" between the City and EagleRidge Operating, LLC until midnight on January 31, 2014 pursuant to Ordinance No. 2013 -330 to address certain disputes which have arisen between the City of Denton and EagleRidge Operating LLC as it concerns gas drilling in the corporate limits of the City; and WHEREAS, the parties deem it in their respective best interests to extend said Agreement to continue to attempt to negotiate the disputes between them; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The preambles above are incorporated in this Ordinance as though set forth in full. SECTION 2. The City Council of the City of Denton hereby amends Ordinance No. 2013 -330 to extend the "Standstill Agreement" to March 4, 2014, retroactive to 11:59 p.m., January 31, 2014, and authorizes the City Manager to execute the extension to the "Standstill Agreement" attached hereto as Exhibit "A." SECTION 3. This Ordinance is effective immediately. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY I APPROVED AS TO LEGAL FORM: ANITA 4URGESS, CITY ATTORNEY } 1 BY: y1 o h I—' � u &A° sAlegal \our documents \ordinances \14 \st,uldstill amended ordinance & ex a.doc Exhibit A Extension to Standstill Agreement The Standstill Agreement between the City of Denton and EagleRidge Operating LLC, signed on November 22, 2013 and approved by Ordinance No. 2013 -330, is hereby amended to extend the standstill period to 11:59 p.m., March 4, 2014 and this Extension Agreement is retroactive to 11:59 p.m., January 31, 2014. Agreed to this the day of , 2014, by the undersigned officers acting on behalf of their respective legal entities. EAGLERIDGE OPERATING, LLC, as Operator and on behalf of EAGLERIDGE ENERGY, LLC By: Mark L. Grawe, Chief Operating Officer and Executive Vice President, EagleRidge Operating, LLC THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the day of , 2014, by Mark L. Grawe, as Chief Operating Officer and Executive Vice President, EagleRidge Operating, LLC, as Operator and on behalf of EagleRidge Energy, LLC. Notary Public, State of Texas Page 1 sAlegal \our doeulnents \ordinances \14 \standstill amended ordinance & ex a.doc THE CITY OF DENTON, TEXAS By: George C. Campbell, City Manager THE STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on the day of , 2014, by George C. Campbell as City Manager on behalf of the City of Denton, Texas, pursuant to delegated authority specifically conferred by Ordinance No. 2014- of the City of Denton, Texas. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY B ea Notary Public, State of Texas Page 2 Pudblhc V ieai -hr AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Denton Municipal Electric (DME) ACM: Howard Martin, 940 - 349 -8232 - hA/-- - SUBJECT: Hold a public hearing and consider approval of the site proposed for reconstruction of the existing North Lakes Substation located northeast of the intersection of Bonnie Brae Street and Riney Road in the northern area of Denton Municipal Electric's certificated service territory, in Denton County, Texas. BACKGROUND: The Denton Municipal Electric (DME) Capital Improvement Plan includes a project to reconstruct North Lakes Substation. The existing station capacity is inadequate for expected future load. Also, DME is working toward conversion of the 69KV transmission system to 138KV. Since this station is rated at 69KV it will need to be rebuilt to 138KV requirements. Rebuilding on the existing site is not feasible because of the additional space required for 138KV equipment. Exhibit 2 is a "Project Information" sheet that provides a project description, a discussion of need, and information on site selection. DME held an open house to inform the community regarding the siting of the proposed North Lakes Substation reconstruction and received feedback. The meeting was held at the Best Western Hotel in Denton on the evening of November 18, 2013. Exhibit 9 "Open House Report" provides details on attendance and comments received. This information for this Open House included the routing of the transmission line from Bonnie Brae to North Lakes as well as the siting of the North Lakes substation. The information in this report only pertains to the siting of the North Lakes substation, and where possible feedback related to the routing of the transmission line has been omitted. The request by several citizens to relocate the transmission line eastward is presently being analyzed and does not have an impact on the proposed North Lakes substation site being proposed during today's North Lakes Substation site Public Hearing. The proposed substation site on option 2 would accommodate either transmission line route alternative. A Public Hearing was held by the Public Utilities Board (PUB) on January 13, 2014. Notices of the Public Hearing were mailed out to property owners located within 500 feet of the proposed substation site, several interested citizens appeared and expressed their views. The PUB after considering that input and the recommendation of DME staff, unanimously recommended approval by a vote of 6 -0 to the City Council that site Option 2 be selected as the site for the reconstruction of the North Lakes Substation. 1 OPTIONS: 1. Approve the reconstruction of North Lakes Substation on site "Option 2." 2. Do not approve the reconstruction of North Lakes Substation on site "Option 2" and direct that other actions be taken. RECOMMENDATION: In light of information received during the November 18, 2013 public involvement open house, the feedback received from the Public Utilities Board Public Hearing, and the unanimous 6 -0 vote from the PUB on January 13, 2014, DME recommends that the City Council approve the proposed site Option 2 to reconstruct North Lakes Substation PRIOR ACTION / REVIEW (Council, Boards, Comission): The Public Utilities Board and City Council were informed of the November 18th public involvement open house via email on November 1, 2013. The public involvement open house was held on November 18, 2013 at the Best Western Hotel. A Public Hearing by the Public Utilities Board (PUB) was held on January 13, 2014 at the Service Center. EXHIBITS: 1. Resolution 2. Project Information 3. System Map 4. Location Map 5. Site Options Map 6. North Lakes Substation Reconstruction Map 7. Open House Report 8. Sign in sheet from the November 18 Open House 9. Comment sheets from the November 18 Open House 10. PUB Public Hearing Citizen Handout 11. PUB Public Hearing Draft Minutes Prepared by: Brent A. Heath, P.E. Executive Manager Energy Delivery Denton Municipal Electric 2 Respectfully submitted: Phil Williams General Manager Denton Municipal Electric EXHIBIT I RESOLUTION NO. R2014- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS REGARDING ESTABLISHMENT OF THE SITING OF THE DENTON MUNICIPAL ELECTRIC RECONSTRUCTED NORTH LAKES SUBSTATION LOCATED NORTH OF RINEY ROAD AND EAST OF BONNIE BRAE STREET IN THE NORTHERN AREA OF DENTON MUNICIPAL ELECTRIC'S CERTIFICATED SERVICE TERITORY, IN DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Denton Municipal Electric ( "DME"), the City's electric department, has previously announced that the necessity exists for the constriction of the re- constricted North Lakes Substation Site located north of Riney Road and east of Bonnie Brae Street in the northern area of Denton Municipal Electric's certificated service territory, hereinafter referred to as the "North Lakes Substation ") in order to properly serve future load and the needs of its customers; and WHEREAS, in connection with this Project, over time DME staff has carefully examined a number of different sites in the northwest part of the City, near the present North Lakes Substation site, in order to determine an appropriate site for re- constriction of the substation, considering the impact on homeowners, avoiding the displacement of Denton residents, the cost of easements, the cost of work in existing subdivisions, transmission line constriction costs, engineering factors, and also considering other relevant factors to the extent reasonably possible; and WHEREAS, DME staff then conducted a public meeting on November 18, 2013 with advance notices mailed to sixteen (16) residents by U.S. Mail, who reside within 500 feet of the alternate sites, in order to gauge the sentiment and support of the residents of the surrounding geographical area, as well as to receive input from the residents; which meeting spurred dialog which has assisted DME in arriving at its preferred recommendation; and WHEREAS, subsequent thereto, a public hearing was held at an open meeting of the Public Utilities Board ( "PUB ") on January 13, 2014, after notices were mailed to the same residents that were noticed for the November 18, 2013 public meeting; and at such PUB meeting several interested citizens appeared and expressed their views; the PUB, after considering that input and the recommendation of DME staff, unanimously recommended to the City Council by a vote of 6 -0 that "Option 2" be selected as the site for the re- constricted North Lakes Substation; and WHEREAS, the Council, after considering all of the facts and circumstances, is of the opinion, and the Council accordingly finds, that "Option 2" designated below for the Project, is a feasible site option for the Project; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The City Council hereby approves the siting for the North Lakes Substation, for the Denton Municipal Electric substation re- constriction project, heretofore referred to as "Option 2" as depicted on the Map attached hereto as Exhibit "I," which Map is incorporated by reference herewith for all purposes. The City Council further directs staff to establish the site, in substantial accordance with the tract of real property shown on Exhibit "1." SECTION 2. The recitals set forth in the preamble to this resolution are hereby incorporated in, and are made a part of this resolution for all purposes. SECTION 3. This resolution shall take effect immediately from and after its adoption. PASSED AND APPROVED this the day of February, 2014. ATTEST: JENNIFER WALTERS, CITY SECRETARY CIA APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY CIA Page 2 MARK A. BURROUGHS, MAYOR Exhibit 2 Project Information Project Information Reconstruction of the North Lakes Substation and the Denton Municipal Electric City of Denton 1659 Spencer Road Denton, TX 76205 November 18, 2013 Bonnie Brae to North Lakes Transmission Line Description of the Proiect Denton Municipal Electric (DME) has identified several projects that are critical to maintaining reliability and allowing Denton to continue to grow. Reconstruction of the North Lakes Substation and reconstruction of the Bonnie Brae to North Lakes transmission line are two projects that are necessary. Information on both projects is presented herein (see attached map for project locations and options). The projects will consist of the following: ■ Construction of a new substation adjacent to or near the existing North Lakes Substation. ■ Rerouting of transmission and distribution lines into the new substation. ■ Retiring the equipment in the existing station. ' - • • • • IlllyllVgll � �IIIII �� � � ��% n��lrr�oa�i/ O////%//% �1, �111�f� / / % %� / % /��r�� % /;, "�'Gi / %���i;, several hundred feet south of University) to the North Lakes Substation (located northeast of the intersection of Bonnie Brae and Riney Road). Several alternatives have been considered as possible locations for reconstruction of the North Lakes Substation. A map is attached that shows location options that have been identified at this time. A substation location could be chosen that is different from those locations shown on the map. No alternative routes have been proposed for reconstruction of the transmission line. All facilities will be owned and operated by DME. Why is the proiect needed? State and federal laws mandate specific and well defined performance requirements for utility transmission systems. DME must insure that all components of its transmission system meet Project Information November 18, 2013 North Lakes Substation Reconstruction Bonnie Brae to North Lakes Transmission Line Reconstruction these requirements for regulatory compliance and, more importantly, to maintain the highest levels of reliability and electric service for our customers. Annual studies are completed to determine whether or not each transmission line segment and substation section provide the performance required by the rules. If performance deficiencies are identified, projects must be defined and constructed that resolve the deficits. In determining a solution for a deficiency, alternatives are considered that take into account benefits, impacts, and costs. In the case of North Lakes Substation, there are three primary reasons that the station must be rebuilt. First, the capacities of the electrical bus (conductors), circuit breakers, and switches in the station will no longer be adequate for the electrical Substation Project Alternatives DME has investigated several alternatives for reconstruction of the North Lake Substation. The attached map shows the options examined to date. It will not be possible to reconstruct the station on the existing site without extended outages that would have to last for many months at a time. The existing station equipment and foundations would have to be removed to make room for reconstruction because of conflicts between the new installation and the existing. Lengthy outages and the associated loss of capacity to serve the area during those outages result in unacceptable reliability risks. Consequently, DME cannot recommend use of the existing site for the reconstruction. Rebuilding the North Lakes Substation on a new site will allow complete constriction and testing of the new substation while leaving the existing substation in service with its full capability available. Constriction of, and transition to, the new substation would then require only minimum outages. 2 Project Information November 18, 2013 North Lakes Substation Reconstruction Bonnie Brae to North Lakes Transmission Line Reconstruction Transmission Line Alternatives The existing transmission line between the Bonnie Brae Substation and the North Lakes Substation is 69kV and was originally constructed in the early to mid 1960's. The original conductor is still in use. Analysis has shown that the capacity of the line must be increased. Outage of certain other transmission lines could cause overloads on this line. As stated earlier, DME is working toward conversion of the 69kV system to 138kV in the 2018 timeframe. To increase the capacity and provide the capability to increase the operating voltage to 138kV, it is necessary to reconstruct the line. There is no alternative to this action. The existing transmission line route is the shortest distance between the Bonnie Brae and North Lakes substations. A significant portion of the line resides on City of Denton land. The line must continue to terminate in both the Bonnie Brae and the North Lakes substations. With these factors in mind, DME has not proposed a change in the route of the transmission line. If the line is left in the same location, it will be necessary to expand the easement width in most areas where the line is not on city property. The Site Selection Process The analysis phase of project development only identifies that a project is needed, what the project should accomplish, and a potential area for the needed project. It does not mandate the use of a specific site or transmission line route. The site and route selection processes, which include requesting public input, is employed to assist with determining the locations for new substations and transmission lines. Alternatives have been identified for the substation reconstruction and are depicted on the attached map. Identification of these sites is the starting point for the selection process. This open house is intended to communicate the need for the project and to provide an opportunity for individuals to learn about the project and make comments. Potentially affected land owners and those within 500 feet of any of the alternative sites have been notified by mail of the project and the public open house. The City Council has approved the substation site selection process. This process presents the public with several opportunities to provide input. The first step is for DME to conduct an open house where information is made available on the proposed project, questions may be asked, recommendations can be made, and written or verbal comments may be provided. Interested individuals may also contact DME at any time. Contact information for DME is provided below and on the comment form handed out at the open house. After all comments received at the open house for a project are compiled, DME will consider all comments, complete additional reviews as appropriate, and will provide a recommendation to the Public Utilities Board (PUB). During its consideration of DME's proposal, the PUB will conduct a public hearing and direct DME to take additional actions or recommend a site for consideration by the City Council. During its consideration of the PUB's findings, the City Council will again conduct a public hearing to receive comments from interested residents. Ultimately, the City Council will select the site for the proposed substation and transmission route. Project Information November 18, 2013 North Lakes Substation Reconstruction Bonnie Brae to North Lakes Transmission Line Reconstruction DME will provide notice by mail for the open house and for the PUB and City Council public hearings. DME's contact for questions: Brian Daskam Energy Services Development Officer Phone: (940) 349 -7567 Email: Brian.Daskam @cityofdenton.com Timeline for the Proposed Facilities Following approval by the City Council of the proposed site, DME will undertake procurement of land for the proposed facilities. The time required for purchase of the land is unknown at this time. Design of the station will begin as soon as practical after it appears that land issues will be settled. DME would hope to have the new station and transmission line in service before the summer of 2016. Procurement of Land and Easements Land and easement procurement processes are governed by state laws and local ordinances such as Senate Bill 18. Once the City Council has approved the substation site and the transmission line route, the procurement process will follow these requirements. The City will pay fair market prices for land and land rights. Fair market value is determined by conducting market studies and appraisals. Attachment: Location Map M EXHIBIT 3 5 ❑ ❑ N Denton Municipal Electric O D� Substation Locations \ \\ ❑ �������� ��������� N h Lakc 5 �o „�� Proposed Substation Sites /Expansions s s r”" SA r ❑ , xr "as R".. ❑ �' &Proposed in Service Dates e ® 1. Cooper Creek Substation - Ncw substation to serve cast Denton 1 e 8 and to provide a location for interne - to t Tnsmiss on lines. (8 acres r e �„ substation sate) - 2012 e 15 o"c"r taskv 2. New McKinney Substation - New substation to serve the 17 e tr" K "g AIII ease- cenural areas of Demon (7 acres) - 2014 e 3. Kings Row Substation - Relocation and upgrade of existing E] substation accommodate ti u ne new aysnission line. (4 acres) - ❑ e Oi no""le liras ❑ rw suhs[ntl"" 2014 E S "bataii "n ,r." cndsrai a 13 p m � 4. New Substation near CINT -New substation to serve UN "I' and Jfi.Cc "" 1 rt south -central Denton (4.5 acres) 2014 D. kq 4 w 5. New Masch Branch Switch Station - New switch station to n 145kx Kv Tap Swann yon au intercormect a new ONCOR lute with TMPA for increased q.J keb"ro) �r (oncor) RD.sxens ❑ ❑ W reliability and to provide a location for a future distribution station. t reserun,c 7 e /1 14 i� (S acres) - 2015 t "Ll 11 6. New Long Road Substation - New substation to serve north e �� s h �ano" ❑ Damon (4.1 aces) - 2014 Lo ❑ ❑ 7. Locust Substation Reconstruction - Additional adjacent property whsiaaal reconstru ct the existing station w meal 138kV requirements. (5 -7 p res) - 2015 Ef orth Lakes Substation Reconstruction - Additional adjacent operty to reconstruct the existing station to meet I19kV quirements. (4 acres) - 2014 a New Underwood Substation - New s'uhstation to serve growth in ��a 8 ii000i „ 0 southwest Denton. (5 acres) -2010 10. Fort Worth Substation Expansion - Additional adjacent property a to expand the existing station to serve growth in south Denton. ( I De"m" west e ^oy ��� �,�, ����VIw acre) - 2015 mrrrcna"se °e yo„ a "ckru. 11. Ncw Brinker Substation - New substation to serve growth along ®0 ° "y�� s'uhsrauo" "'ion Loop 288 and cast Denton. (4 acres) - 2017 w� °j ^m tort worn, ����0j 12. New Mayhill Substation - New substation to serve southeast Denton and provide a Location for interconnection of transmission w� 000i a ❑ lines, (4.5 acres) -21J10 - - — "° °j 13. Hickory Substation Reconstruction- Additional adjacent property a�000 „iii Ceti "tn srrnstari"" to reconstruct die existing station to provide adequate space and ID”` "r) meet 138kV requiremenLS. (4 -6 acres) - 2015 , Tcasic 14. New Station North of Spencer Interchange - New station to DME69KV ®0 "'oo s"bsma"n �4 improve 138kV connectivity and conversion for 69kv loop. (6-8 emu " "iwu wui'^ DNIE I3RKV �q�ium,ii acres) -20L5 w 'o, �'4 15. Arco Substation Replacement - ReconstructTMPA Arco Switch ONCOF 138KV 0 �" Pj0' and DMI; substation on properly ad anent to the existing station. 10 a,® �,9 1 ON�Ol'. 345KV acresl - 2014 Tn1rn 138KV toot",) 16. New Substation on the Brazos TM Line -New Substation to serve TMPA 345KV nordnvcst Denton (4.5 acres) 2016 ' BRA[OS i3SrcV 17. New West Substation- New substation to serve west Denton and O intcrconncct to new transmission line to RD Wells for increased PROPOSED SITES reliability (6 acres) 2016 OAQIIIRED PROPERTY 1117 N M � � , �T0N Bonnie Brae to North Lakes w E �,� Transmission Line Upgrade Exhibit 4 Legend Location Map North Lakes Proposed Sites Option 1 II Option 2 Option 3 Option 4 Option 5 Option 6 Transmission Overhead Line 69 kV Substation = Substation 1117 N M � � , �T0N Bonnie Brae to North Lakes w E �,� Transmission Line Upgrade Exhibit 5 Site Options Map NOR R EY 3 E I : = - - -- ------------------ . .......... ....................... .............. 7 PR �� IVATE Legend Bonn 500 Ft Boundary co Wi North Lakes Proposed Sites z z Option 1 0 Option 2 CID Option 3 Option 4 Option 5 Option 6 Substation Substation N North Lakes Substation W*17 Proposed Sites EXHIBIT 6 NORTHLAKES SUBSTATION EXPANSION rm OPTION 2 ELEcIRIc Exhibit 7 Open House Report North Lakes Substation Open House Report The Open House for the North Lakes substation siting Nvas held on the evening of November 18, 2013 at the meeting room of the Best Western at 2910 W. University Drive, Denton Texas 76201 from 6 p.m. to 8 p.m. This information for this Open House included the routing of the transmission line from Bonnie Brae to North Lakes as Nvell as the siting of the North Lakes substation. The information in this report pertains to the siting of the North Lakes substation, and where possible feedback related to the routing of the transmission line has been omitted. The request by several citizens to relocate the transmission line easNmrd is presently being analyzed and Nvill not impact the proposed North Lakes substation site being proposed during today s North Lakes Substation Public Hearing. The proposed substation site on option 2 would accommodate either transmission line route alternative. Therefore, the transmission line recommendation is not part of this substation site proposal. • 18 people signed in at the meeting • 11 people filled out comment cards at the meeting • 7 people filled out comments Nvith responses pertaining to the location of North Lakes substation. A summary of those comments is below. 0 2 comments in favor of option 2 0 5 comments in opposition to option 3 0 4 comments in opposition to option 4 0 2 comments in opposition to option 5 o 1 comment in opposition to option 6 o 1 comment in opposition to option 1 o 1 comment Nvas sent after the meeting opposing sites 5 & 6 • 6 people signed a request to relocate the transmission lines further eastward and awa -,T from the current location on the east side of Bonnie Brae road. This request also included moving the North Lakes substation "approximately 300 feet east of the current option 2 location." DME Public Involvement Meeting November 18, 2013 Exhibit 8 Sign In Sheet ----------- ------- 2 .. 3 . ........ .... .... ... ... . . ....... 4 ............ ------- - 5 eAksp, p 0, &yc q-V,,,;f7--qjf1 ............ - -- — ----------- - . . . . . .............................. . ................ . ..... . - ------- ------------------ 3j;N LAO 6 . ................ .......... ............ ................... ---------- 7 .................. . . . ................... - --- - ------ 8 `3 .......... - 9 J 7 - --------- 13;�5 �3 5 y11. . . ........... ... ...... . ........ 11 r/ 12 . ..... 2.(1 cun 13 )1 ZO L17V -2�/ 77Malt-ML WO-W1,310,4 .......... .. .. . . ........ ...... 14 is......................... — - — .. - — ----------- .......................................... ------------------ . ............................. 16 . . . . . . . . . . . . . . . . . . .... ....... ... ..... ........................................................... — - — ------------------------------ 17 18 _-- - - - - -- . . . . . ............. ............................... .............. .................. . . . ........ . . ......................... -- ------------- 19 20 21 .......... . .. . ............................... . . . . . . . . . ............ 22 23 24 --- — - — ----------- . . . . . ............................ . . . ................ DME Public Involvement Meeting November 18, 2013 ....................... �7 ..-.. ...................................... ... �_... .. w. w. w. w. w._. .._....._.....w._..._..._...._. 5 6 mm... ......m. ........ __ .. ,._ „_, m,_ ww_ _____ ............... ............................. -- ....... 7 .............. ....................... m. .................m___............ ______- -_ 8 ..- ..... ...... ............................... ° °....- - ...... 10 _.. _____ __________________________...__ ------- .,,,,. .... ............................... _ ........................................... ____...._...._..._.....____ ..... ....... ___ -- 12 13 ..................... ... ........... ........................... . ........ . ..... .................... . . m. m. m ...... ....................... ...... ._ ............................. .... .... _.............................................................................................. 14 15 16 17 ......... ....... 18 ._ _ .... - ........................������ .. ......................... ... ._........................................................................ 20 -21-- ..........- -- --- ..................... ....._._ m ................ _ ..... ._....................... ___ _.__ 24 _ __- Thank you for attending this Public Open House Meeting. We do not have a presentation planned for this meeting, and you are invited to come and go at your convenience. We would like to hear your comments on the planned North Lakes to Bonnie Brae upgraded transmission line as well as the North Lakes Substation expansion. Please take a few minutes to answer the following questions and then return this form to us this evening. Your completed questionnaire will help DME understand public interests and concerns about the North Lakes to Bonnie Brae Project. 1. Are you a resident in the area of the planned project? Yes ❑ No 2. If not, please indicate your affiliation ❑ Agency ❑ Developer ❑ Landowner ❑ Other 3. Do you understand why the new transmission line and substations are needed? Yes ❑ No Do you have comments on the purpose and need of the project? 4. Were the exhibits and information presented helpful for your understanding of the project? )4 Yes ❑ No How could we improve this effort? 5. Do you believe all relevant factors are being considered? Do you have comments or special concerns that you would like the project team to know about or to take into ��o, nside7rattion? �uv a�.�c%r��6a��e��aa2 r�rr�acernne�r� Please provide your name and mailing address (optional): Name: d " ".+° Address: City, State, Ix TX Zip Code: ` / ) 7lv 07 North Lakes to Bonnie Brae '04,14TON i i IP A L 69 kV Transmission Line and Substation Expansion Proiect M U1 Questionnaire November 18, 2013 Thank you for attending this Public Open House Meeting. We do not have a presentation planned for this meeting, and you are invited to come and go at your convenience. We would like to hear your comments on the planned North Lakes to Bonnie Brae upgraded transmission line as well as the North Lakes Substation expansion. Please take a few minutes to answer the following questions and then return this form to us this evening. Your completed questionnaire will help DME understand public interests and concerns about the North Lakes to Bonnie Brae Project. 1. Are you a resident in the area of the planned project? Yes ❑ No 2. If not, please indicate your affiliation ❑ Agency ❑ Developer ❑ Landowner ❑ Other 3. Do you understand why the new transmission line and substations are needed? Yes ❑ No Do you have comments on the purpose and need of the project? 4. Were the exhibits and information presented helpful for your understanding of the project? A Yes ❑ No Ho�w / could we_( improve [ this effort? f J �/ ` / 1"�J�l/' �Vt7�/'✓l'1aJ`�V� j Well es-,,W iul'79'a / X�,, 4"' l� U.�it�ro ft CoglCP/rhf J /�`"� 5. Do you believe all relevant factors are being considered? c/o not 40 f °e ve O?' r&n 3J 5/, 9-9 ane v;u l loovosed s ! '7ir�r► s,` o 6. Do you have comments or special concerns that you would like the project team to know about or to take into consideration? ,t� I � �wov/d p"A' P, �irua Qhw I ^, W4 '7u eose )L J�cc ►f'd�7 0� Iny s-eco id Pne&,.em.0 it fl' ""p fron -*a 7. Please provide your name and mailing address (optional): Name: S'440N 5rAN- } Address: 33ot) N- Sot4uie %ORA*-� City, State: �evC�Tx 76207 Zip Code: 76Z 07 �r ic%v p %osEt% Sv�s��rn, S'r� e��nj�on North Lakes to Bonnie Brae 69 kV Transmission Line and Substation Expansion Project � ���j I M � P A II. Questionnaire November 18, 2013 Thank you for attending this Public Open House Meeting. We do not have a presentation planned for this meeting, and you are invited to come and go at your convenience. We would like to hear your comments on the planned North Lakes to Bonnie Brae upgraded transmission line as well as the North Lakes Substation expansion. Please take a few minutes to answer the following questions and then return this form to us this evening. Your completed questionnaire will help DME understand public interests and concerns about the North Lakes to Bonnie Brae Project. 1. Are you a resident in the area of the planned project? Yes ❑ No 2. If not, please indicate your affiliation ❑ Agency ❑ Developer ❑ Landowner ❑ Other Do you understand why the new transmission line and substations are needed? lct. Yes ❑ No Do you have comments on the purpose and need of the project? 4. Were the exhibits and information presented helpful for your understanding of the project? )( Yes ❑ No into consideration ?' � w t ffKC Please provide your name and mailing address (optional): Name: L "ce Address: 930-1 ''e- ar* -e- City, State: Zip Code: -,,_ .16 auk M North Lakes to Bonnie Brae U'NTON 69 kV Transmission Line and Substation Exnansion Proiect "M Ii N pi C G P A L Questionnaire November 18, 2013 Thank you for attending this Public Open House Meeting. We do not have a presentation planned for this meeting, and you are invited to come and go at your convenience. We would like to hear your comments on the planned North Lakes to Bonnie Brae upgraded transmission line as well as the North Lakes Substation expansion. Please take a few minutes to answer the following questions and then return this form to us this evening. Your completed questionnaire will help DME understand public interests and concerns about the North Lakes to Bonnie Brae Project. 1. Are you a resident in the area of the planned project? -A Yes ❑ No 2. If not, please indicate your affiliation ❑ Agency ❑ Developer 'a Landowner ❑ Other 3. Do you understand why the new transmission line and substations are needed? Ir Yes ❑ No Do you have comments on the purpose and need of the project? 4. Were the exhibits and information presented helpful for your understanding of the project? Jr Yes ❑ No How could we improve this effort? 5. Do you believe all relevant factors are being considered? I�Q - yeT 6. Do you have comments or special concerns that you would like the project team to know about or to take into consideration? yeS — a,, Pt tX�L�e_A �( -'Q goS-X 7. Please provide your name and mailing address (optional): Name: Jc `l C �Fl �•� Kv�1 �Ma l\ Address: City, State: ��.....,.�, ��.. Zip Code: 7Co :a 07 REQUEST FOR ALTERNATE PLACEMENT OF POWER LINES As residents and landowners of properties on Bonnie Brae Street, where new 138kV power lines are to be erected, we are requesting the following new alignment / placement of these power lines: We are all asking for the new power lines to be placed in the utility easement where the City recently put in the 42 -inch ( ?) water line. That line runs behind the fire station (corner of Windsor/Bonnie Brae), goes north along the inside road along the soccer fields. At the end of those playing fields, the waterline turns and goes eastward. We are suggesting placing the power lines along that same easement line. Where the waterline turns east, the power lines would simply continue northward to Riney Road. The new substation location would be placed at that place where the power lines intersect with Riney Road. That would place the new substation approximately 300 feet east of the current Option 2 location. Arguments FOR our request: It sets the power lines back'out of the way' for upcoming and future widening of Bonnie Brae. Placing the poles out of the 'line of sight' makes a more appealing Entry Way into the area (BEAUTIFICATION) en route to the new Shopping Mall areas and future development. It allows the new substation to be placed in a safer location and again, 'more appealing' to future development. Will allow The Razor Group to put in a more attractive, valuable development in the future along Bonnie Brae. This location lessens the EMF (electric magnetic field) to our homes for health reasons and less electronic interference. Moving the poles to the waterline easement area maintains property values along Bonnie Brae for all parties and future development purposes. This will be a COST SAVINGS to the city when future development and traffic demand wider streets. It will provide for higher property values not to have power lines so visually prominent along Bonnie Brae. Let's PLAN AHEAD. Sincerely requested by: Debbie Collinsworth; Shawn & LaRee Smith; John & Dorothy Smith; Tim & Martha Duke; Joyce Poole & Adam Kunzman; Eric & Marla Fullerton North Lakes to Bonnie Brae 69 kV Transmission Line and Substation Expansion Project u 'TO N Questionnaire IE I'll , m November 18, 2013 Thank you for attending this Public Open House Meeting. We do not have a presentation planned for this meeting, and you are invited to come and go at your convenience. We would like to hear your comments on the planned North Lakes to Bonnie Brae upgraded transmission line as well as the North Lakes Substation expansion, Please take a few minutes to answer the following questions and then return this form to us this evening. Your completed questionnaire will help DME understand public interests and concerns about the North Lakes to Bonnie Brae Project. 1. Ar you a resident in the area of the planned project?/,' �� Yes [,r ! Cl �% Ll No 2. If not, please indicate your affiliation ❑ Agency 0 �a1-Ze C /'�e- S t • Developer Gr zG • Landowner M„ ❑ Other 3. Dq you understand why the new transmission Ifne and substations are needed? Yes ❑ No Do you have comments on the purpose and need of the project? 4. We the exhibits and information presented helpful for your understanding of the project? Yes ❑ No How could we improve this effort? 5. Do you believe all relevant factors are being considered? fio-/ � j U /- e-- 6. Do you have comments or special concerns that you would like the project team to know about or to take into consideration? �S, 6W /)P' 5(o 6JCU 1 d h 'P / o h 3 7. Please provide your naiTe and manhng add e,ss (optional): Name: Pe66i(R.� r,, , wit � ' Address: -33[0 V7 City, State: fir` °/� Zip Code: 7(1,207 XTU North Lakes • i • i � 69 kV Transmission Line and Substation Emansion Proiect R% Questionnaire November • 1 Thank you for attending this Public Open House Meeting. We do not have a presentation planned for this meeting, and you are invited to come and go at your convenience. We would like to hear your comments on the planned North Lakes to Bonnie Brae upgraded transmission line as well as the North Lakes Substation expansion. Please take a few minutes to answer the following questions and then return this form to us this evening. Your completed questionnaire will help DME understand public interests and concerns about the North Lakes to Bonnie Brae Project. 1, Abe you a resident in the area of the planned project? d Yes ❑ No 2. If not, please indicate your affiliation ❑ Agency ❑ Developer ❑ Landowner ❑ Other 3. Do you understand why the new transmission line and substations are needed? ❑/ Yes No Do you have comments on the purpose and need of the project? s f,00 4. Ere the \exhibits and in orrnation pr'sented p ul pit You understandu � °'of e project? ° Hiow �a�alc� we improve this effort, +�t,try� Nc � C� ly)yzr)13 In 5. Do yo, believe all relevant factors are being considered? 6. Do you have comments or special concerns that you would like the project team to know about or to take into consideration? Not �4� \` 7. Please provide your n me and rnailin address ( ptional): Name: °3 ,� � ry ti ti w " 1'��.9., ��� C•�� Address: °�." City, State: Zip Code: —�� 11-10EQUEST FOR ALTERNATE PLACEMENT OF POWER LINES As residents and landowners of properties on Bonnie Brae Street, where new 138kV power lines are to be erected, we are requesting the following new alignment / placement of these power lines: Sebbie Collinsworth; Shawn & LaRee Smith; John & Dorothy Smith; Tim & Martha Ikuke; Joyce Poole • Adam Kunzman; Eric & Marla Fullerton (� North Lakes to Bonnie Brae %, i i l a i 69 kV Transmission and Substation • Proiect Questionnaire November 1 Thank you for attending this Public Open House Meeting. We do not have a presentation planned for this meeting, and you are invited to come and go at your convenience. We would like to hear your comments on the planned North Lakes to Bonnie Brae upgraded transmission line as well as the North Lakes Substation expansion. Please take a few minutes to answer the following questions and then return this form to us this evening. Your completed questionnaire will help DME understand public interests and concerns about the North Lakes to Bonnie Brae Project. 1. Are you a resident in the area of the planned project? ❑ Yes t�LNo 2, If not, please indicate your affiliation ❑ Agency ❑ Developer ❑ Landowner i Other 3. Do you understand why the new transmission line and substations are needed? ❑ Yes o.e-- N o Do you have comments on the purpose and need of the project? l 4. Were the exhibits and information presented helpful for your understanding of the project? Yes ❑ No �,I How could we improve this effort? ftJ 5. Do you believe all relevant factors are being considered? nP'LA 6-e- 6. Do you have comments or special concerns that you would like the project team to know about or to take into consideration? n Q e-, 6� 7. Please prQ�vide your name and mailing address (optional): Name. U or O V A L( G ooj So n Address: I `3 LI �i, )J � UD 0, City, State: S i1 r h Zip Code: m ,. y y p i w,.., r °, ., „' 'M, ri�A.4a arv.,.� i ��..,. �m "� 113 S Cl,..... d as », I `," (31id white pt ,t�-- r1rw ¢bis vie 'w F Vsl n icwlt: w4. +w. rf.ne, &tw +�„ , was placed [x' ,i,,I- Y(Jut.2008-20U',' (4r "''ylty�� t id. ^,gl, e Jsf4S,'n` +J( Pad rope 'tv, fwY, vmterfine thens learns and Foes East. oux suggestion is that. the new tower fines follow the wwwaterfpnre utility easemenst fronws the; corner of �Bomiie Brae and Windsor fide, eastward to the point where the waterline; gees month and progresses along the perfnxneter of the baseball ffefd o, then the interior roadway along the soccer fields. Continuing rnortfa to the existing edge offhe football fields. From that point, deternrnaxne whether to continue straight north (Option fin), OR to jag east and them follow the ewnpstfrng eawser nennt of the smaller 'connector' waterline (Option B) Either option terrydnates at the new Substation on Riney Road. t dew not have a scaled raps to be more specific at 111as tonne. Choosing Option "n (above) would ordy reafpaure two (2) corner poles at the Windsor Read portion of the proposed route. Option B would possibly ly require four (4) needed corner poles. Certainly, the benefits of health, safety, enhanced beautification of future development of the roads and maintaining propned wwa ues would bapannce out any, nnnnrranedtate ca ks ofthis project. By following the existing waterline easerrnennt detailed above,, the 6ectric taswvers are avoiding, interference mAth (1) the Fire Station activities; (2) gas fa.taes that exist along, Bonnie Brae; and (3) creates a definite "Utility Easement bounndmy ' away from Bonnie Brae frontage ge psropne y, allowing for qual y future development planning. mint. REQUEST FOR U ? TE PLACEMENT OF POWER LINES EXHIBIT 11 PUBLIC UTILITIES BOARD MEETING AGENDA ITEM #13 DRAFT MINUTES PUBLIC UTILITIES BOARD January 13, 2014 After determining that a quorum 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, January 13, 2014 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901A Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy Robinson, Phil Gallivan Barbara Russell and Lilia Bynum Absent: Leonard Herring Ex Officio Members: Howard Martin, ACM Utilities Absent: George Campbell City Manager OPEN MEETING: PUBLIC HEARING: 2) Hold a public hearing and consider making a recommendation of approval to the City Council regarding the proposed site for reconstruction of the existing North Lakes Substation northeast of the intersection of Bonnie Brae Street and Riney Road in the northern area of Denton Municipal Electric's service territory; discuss, deliberate, provide staff with direction, and make a recommendation. Brent Heath, Executive Manager of Energy Delivery, made the presentation. Heath showed a map with the location of the North Lakes Substation. This item was approved in the DME Capital Improvement Plan. The existing station capacity is inadequate for expected future load. In compliance with the FERC 715 Analysis, DME is working toward conversion of the 69KV transmission system to 138KV. Rebuilding on the existing site is not feasible because of the larger space required for 138KV equipment. There was an additional map shown with options one through six. The public involvement process was set into motion. Notices were mailed out to the residents and property owners within 500 feet of the substation site. At the open house meeting on November 18, 2013 located in the Best Western Hotel, 18 people signed in. There were 11 comment cards filled out. There were seven people that filled out the comment card pertaining to the location of the North Lakes substation. The summary follows: Two comments in favor of option 2 Five comments in opposition to option 3 Four comments in opposition to option 4 Two comments in opposition to option 5 One comment in opposition to option 6 One comment in opposition to option 1 One letter was sent in after the meeting opposing options 5 and 6 Request from six people to move option 2 further east Staff has considered the comments and has brought forward information. Heath stated there were no oppositions to option 2. The site has been looked at to slide the site eastward about 1 /10th of a mile from where it presently sits. Heath talked about the transmission line on Bonnie Brae that needs to be rebuilt. In 2003 there were straight line winds that knocked down several poles through that area and the line needs to be reconstructed. At the public involvement half of the attendees that wrote comment cards talked about an alternate route for the transmission line. That alternate route is currently being evaluated and staff will return to PUB at a later date for further information. Today is only about the substation site. Option 2 could accommodate the existing transmission line where it is located it would also accommodate the alternate route of the transmission line. Because there is a community consensus on option 2 staff wanted to come forward with that site. Once the site is selected staff can apply that exact location as the proposals are brought forward for the alternate transmission routes. Considering the information received during the November 18 public open house meeting, DME staff recommends that the Public Utilities Board recommends approval to reconstruct the North Lakes Substation on substation site Option 2. Chair Smith asked if option 2 encompasses moving the site further east, Heath agreed. Cheek asked the reasoning for moving the site east. Heath answered it would accommodate some of the houses on the south side of the street and to get a little further from the intersection of Bonnie Brae and Riney Road. Chuck Sears, Engineering Division Manager, also answered it is hard to re -build on a site where there is an active substation. Cheek asked how much further east was the site moved. Heath answered the east fence would be about 500 feet. Sears also stated there are drainage issues that have to be dealt with as well. Moving east would have happened anyway because of the other issues associated. Russell asked what will happen to the equipment at the old site. Sears stated that is to be determined. It may be retained as part of the site or for access. There is a good building may be used. Gallivan asked where the houses are located. Heath showed a map and stated there are houses on the south side of the existing substation. There are houses on the west side of Bonnie Brae as well. Chair Smith asked Debbie Collinsworth if she would like to speak. She answered yes. Debbie Collinsworth — 3310 N. Bonnie Brae. Collinsworth is in favor of option 2. She spoke about the transmission line; Chair Smith let her know that there would be another meeting for the transmission lines. Sam Alexander asked how many acres would have to be purchased. Sears answered about eight acres. Heath stated that the landowners stated that they prefer option 2 as well. Chair Smith asked if Joey Price would like to speak, he declined. Chair Smith then called Joyce Poole Joyce Poole — 3021 N. Bonnie Brae spoke in favor of option 2. With no one else speaking, Board Member Cheek thanked staff for working with the residents on this item. Chair Smith let the citizens know that the Public Utilities Board is an oversight committee to all the utility departments. PUB looks at these items and will either recommend or not recommend to City Council and they will make the final decision. There will be another opportunity to speak at City Council. Motion was made to approve item 2 with option 2 by Board Member Russell with the second by Board Member Cheek. The vote was 6 -0 approved. Bynum clarified that the site is moved to the east, Heath agreed. PudbIhc V ieai -ih,� AGENDA INFORMATION SHEET AGENDA DATE: February 4, 2014 DEPARTMENT: Denton Municipal Electric (DME) ACM: Howard Martin, 940 - 349 -8232 *^"- SUBJECT: Hold a public hearing and consider approval of the site proposed for reconstruction of the Arco Substation located northeast of the intersection of Geesling Road and Blagg Road in the eastern area of Denton Municipal Electric's certificated service territory, in Denton County, Texas. BACKGROUND: The Denton Municipal Electric (DME) Capital Improvement Plan includes a project to reconstruct the Arco Substation. The Arco Substation must be reconstructed to allow additional transmission lines to be terminated in the station, to increase the bus and equipment ratings, and to provide a better layout and operational configuration for this station. This project has been handed over to DME from Texas Municipal Power Agency (TMPA) after being approved by both the TMPA P &O committee and the TMPA Board. TMPA had already identified a site for the project and had initiated discussions with the landowner. All open land in the immediate area of the existing station (northeast of the intersection of Blagg and Geesling) is owned by the same landowner who has indicated that they prefer the site that had been identified by TMPA. Reconstruction on the existing site is not possible because of its inadequate size. The proposed site is bordering and located north of the current site. Exhibit 2 is a "Project Information" sheet that provides a project description, a discussion of need, and information on site selection. DME held an open house to inform the community regarding the sitting of the planned Arco Substation and receive feedback. The meeting was held at the Civic Center in Denton on the evening of December 3, 2013. DME notified 12 residents and property owners (those within 500 feet of the proposed site). • 3 signed in at the open house • 0 filled out comment cards • 0 comments were received regarding site preference (DME's real estate representative met individually with the landowner of the identified site on the day of the open house. They did indicate a willingness to work with DME; however, they indicated that they would not agree to any other location than the one proposed.) A Public Hearing was held by the Public Utilities Board (PUB) on January 13, 2014. Notices of the Public Hearing were mailed out to property owners located within 500 feet of the proposed site. There were not any citizens that attended the PUB Public Hearing. After a presentation to the PUB, and after considering all known relevant factors, the PUB unanimously voted to recommend to the City Council by a vote of 6 -0 that the site recommended by DME staff be selected as the site for the reconstruction of Arco Substation. OPTIONS: 1. Approve the proposed site to reconstruct Arco Substation. 2. Do not approve the proposed substation site to reconstruct Arco Substation and direct that other actions be taken. RECOMMENDATION: In light of information received at the public involvement open house, the feedback received from the public hearing with the Public Utilities Board, and the unanimous 6 -0 vote from the PUB on January 13, 2014, DME recommends that the City Council approve the proposed site to reconstruct Arco Substation. PRIOR ACTION / REVIEW (Council, Boards, Commissions): The Public Utilities Board and City Council were informed of the December _3 Public Involvement open house via email on November 22, 2013. The Public Involvement open house was held on December 3, 2013 at the Civic Center. A Public Hearing by the Public Utilities Board (PUB) was held on January 13, 2014 at the Service Center. EXHIBITS: 1. Resolution 2. Project Information 3. System Map 4. Location Map for Arco Reconstruction 5. Arco Substation Layout Map 6. Sign in sheet from the December 3 Open House 7. PUB Public Hearing Draft Minutes Prepared by: Brent A. Heath, P.E. Executive Manager Energy Delivery Denton Municipal Electric 2 Respectfully submitted: Phil Williams General Manager Denton Municipal Electric EXHIBIT I RESOLUTION NO. R2014- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS REGARDING ESTABLISHMENT OF THE SITING OF THE DENTON MUNICIPAL ELECTRIC RECONSTRUCTED ARCO SUBSTATION LOCATED NORTHEAST OF THE INTERSECTION OF GEESLING ROAD AND BLAGG ROAD IN THE EASTERN AREA OF DENTON MUNICIPAL ELECTRIC'S CERTIFICATED SERVICE TERRITORY, IN DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Denton Municipal Electric ( "DME"), the City's electric department, has previously announced that the necessity exists for the constriction of the re- constricted ARCO Substation Site located northeast of the intersection of Geesling Road and Blagg Road in the eastern area of Denton Municipal Electric's certificated service territory, hereinafter referred to as the "ARCO Substation ") in order to properly serve future load and the needs of its customers; and WHEREAS, in connection with this Project, over time DME staff has carefully examined a number of different sites in the eastern part of the City, near the present ARCO Substation site, in order to determine an appropriate site for re- constriction of the substation, considering the impact on homeowners, avoiding the displacement of Denton residents, the cost of easements, the cost of work in existing subdivisions, transmission line constriction costs, engineering factors, and also considering other relevant factors to the extent reasonably possible; and WHEREAS, DME staff then conducted a public meeting on December 3, 2013 with advance notices mailed to the sixteen (16) residents by U.S. Mail, who reside within 500 feet of the alternate sites, in order to gauge the sentiment and support of the residents of the surrounding geographical area, as well as to receive input from the residents; which meeting spurred dialog which has assisted DME in arriving at its preferred recommendation; and WHEREAS, subsequent thereto, a public hearing was held at an open meeting of the Public Utilities Board ( "PUB ") on January 13, 2014, after notices were mailed to the same residents that were noticed for the December 3, 2013 public meeting; and at such PUB meeting no citizens appeared; the PUB, after considering all relevant factors and the recommendation of DME staff, unanimously recommended to the City Council by a vote of 6 -0 that the site recommended by DME staff be selected as the site for the reconstructed ARCO Substation; and WHEREAS, the Council, after considering all of the facts and circumstances, is of the opinion, and the Council accordingly finds, that the site, designated below for the Project, is a feasible site option for the Project; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The City Council hereby approves the siting for the ARCO Substation reconstruction project, for the Denton Municipal Electric, heretofore referred to as "ARCO" as depicted on the Map attached hereto as Exhibit "I," which Map is incorporated by reference herewith for all purposes. The City Council further directs staff to establish the site, in substantial accordance with the tract of real property shown on Exhibit "1 ". SECTION 2. The recitals set forth in the preamble to this resolution are hereby incorporated in, and are made a part of this resolution for all purposes. SECTION 3. This resolution shall take effect immediately from and after its adoption. PASSED AND APPROVED this the day of February, 2014 ATTEST: JENNIFER WALTERS, CITY SECRETARY IM APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY 0 Page 2 MARK A. BURROUGHS, MAYOR Exhibit 2 Project Information Project Information Arco Substation Expansion Description of the Proiect Denton Municipal Electric City of Denton 1659 Spencer Road Denton, TX 76205 December 3, 2013 Denton Municipal Electric (DME) has identified several projects that are critical to maintaining reliability and allowing Denton to continue to grow. Reconstruction of the Arco Substation is one project that is necessary. Information on the project is presented herein (see attached map for project location options). The project will consist of the following: ■ Construction of a new substation near the existing substation. Rerouting of transmission and distribution lines into the new substation. ■ Retiring the equipment in the existing station. The Arco Substation reconstruction project has been taken over by DME from Texas Municipal Power Agency (TMPA) at a point where the site had already been identified. DME has elected to remain with the site selected by TMPA for the project. Significant engineering, environmental, and civil design work had been completed by the time the project was transferred to DME. The site selected is reasonable given the locations of existing underground pipelines, the locations of existing transmission and distribution power lines, the site being adjacent to the existing station, and the ability to have the least impact to surrounding properties. A map is attached that shows the location of the project. All new facilities will be owned and operated by DME. Why is the proiect needed? State and federal laws mandate specific and well defined performance requirements for utility systems. DME must comply with these requirements not only to ensure regulatory compliance, but more importantly, to maintain the best reliability of electric service to our customers. Annual studies are completed to determine whether or not each transmission line segment and substation provide the performance required by the rules. If performance deficiencies are identified, projects must be defined and constructed that resolve the deficit. In determining a solution for a deficiency, alternatives are considered that take into account benefits, impacts, and costs. Project Information December 3, 2013 Arco Substation Reconstruction For the Arco Substation, there are four primary reasons that the station must be upgraded. First, the capacities of the electrical bus (conductors), circuit breakers, and switches in the station are no longer adequate for the electrical flow that the station could experience. Second, Arco Substation is an interconnection point with other utilities. All transmission lines that are currently routed to the station have been constructed to allow installation of one additional circuit with no new power line constriction. The original configuration of the station will not accommodate these additional transmission line circuits. The only solution that will address all these issues is to move to a larger site and construct a new station that will allow all transmission lines and power delivery needs to be met. Proiect Alternatives DME participated with TMPA in the early stages of scope development for this project. Significant effort was given to discovering a solution to utilize the existing site. The site simply is not large enough. Oncor owns the land immediately to the east of the existing station. Even using this as expansion space did not yield a suitable arrangement. Even if the existing site could be used for the reconstruction, the station would have to be taken out of service for many months to allow the work to be done. Given the importance of this station to reliability for DME and for the power companies to the east, having the station out of service for the long period of time required for reconstruction would be strongly opposed by ERCOT and all utilities operating in the region. Because of this reliability concern, 2 Project Information Arco Substation Reconstruction December 3, 2013 and the fact that no adequate solution could be found for the existing site, the only reasonable alternative is to reconstruct the station on an adjacent property. Rebuilding the Arco Substation on a new site will allow complete constriction and testing of the new facility while leaving the existing substation in service with its full capability available. Constriction of and transition to the new substation would then require only minimum outages. Site Selection The analysis phase of project development identifies that a project is needed, what the project should accomplish, and a potential area for the needed project. It does not mandate the use of a specific site. As stated earlier, DME has taken this project over from TMPA who completed the original research on alternatives for the project. DME participated with TMPA in the early stages of site identification and agrees that the site chosen offers the least impact on the surrounding land owners. The site for the substation reconstruction is shown on the attached map. TMPA has also completed the geotechnical and environmental investigations, the initial civil site design, and a significant portion of the electrical design. Identification of these sites is the starting point for the selection process for the project. This open house is intended to communicate the need for the project and to provide an opportunity for individuals to learn about the project and make comments. Land owners within 500 feet of the site have been notified by mail of the project and of the public open house. The City's site selection process presents the public with several opportunities to provide input. The first step is for DME to conduct an open house where information is made available on the proposed project, questions may be asked, recommendations can be made, and written or verbal comments may be provided. Interested individuals may also contact DME at any time. Contact information for DME is provided below and on the comment form handed out at the open house. After the open house, DME will consider all comments, complete additional reviews as appropriate, and will provide a recommendation to the Public Utilities Board (PUB). During its consideration of DME's proposal, the PUB will conduct a public hearing and direct DME to take additional actions or recommend the site for consideration by the City Council. During its consideration of the PUB's findings, the City Council will again conduct a public hearing to receive comments from interested residents. Ultimately, the City Council will select the site for the proposed substation. DME will provide notice by mail for the PUB and City Council public hearings. DME's contact for questions: Brian Daskam Energy Services Development Officer Phone: (940) 349 -7567 Email: Brian.Daskam @cityofdenton.com Timeline for the Proposed Facilities Following approval of a site by the City Council, DME will undertake procurement of land for the proposed facilities. The time required for purchase of the land is unknown at this time. The need is to have the new station in service before the summer of 2016. Project Information December 3, 2013 Arco Substation Reconstruction Procurement of Land and Easements Land and easement procurement processes are governed by state laws and local ordinances such as Senate Bill 18. Once the City Council has approved a substation site, the procurement process will follow these requirements. The City will pay equitable compensation for land and land rights. Equitable compensation will be determined by conducting market studies and appraisals. Attachment: Exhibit 1- Location Map M 16 Rvsxus r38kV ❑ EXHIBIT 3 5 N Denton Municipal Electric e �.�.� „ortc non ip'iiplp 3 w�e Substation Locations ❑ s e ry Brakes Proposed Substation Sites /Expansions s bsraho� ❑ ,. Kint.RU^ ❑ K Proposed in Service Dates e sal,arAnar� P '� e 1. Cooper Creek Substation - New substation to serve cast Denton 1 e 8 and to plow de a location interne or for - to t Tnsmiss on lines. (5 acres r substahon sntc) - 2012 e 15 oncur rnskv 2. New McKinney Substation - New substation to serve the (17 e Ira K"g.viae) cast- cenu'zl areas of Demon (7 acres) - 2014 3. Kings Row Substation - Relocation and upgrade of existing e m ❑ substation to accommodate ti u tine new ansnrssion line. (4 acres) - ❑ e Oi nooaie nrae ❑ w Suhsmaoa 2014 e Sobatarion ,tn. Chrisral a 13 p m 1 4. New Substation near CINT - Neo substation to serve UN "I' and Sates -i— e rt south -ce mal Denton (4.5 acres) 2014 tti kq 4 w 5. New Masch Branch Switch Station - New sw�t h station to n 111kx Kv Tap Swaeh S„h au interconnect a new ONCOR lute with TMPA for increased (m7 ksburo) �r (oncor) RD.sxons ❑ an ❑ W reliability and to provide a location for a future distribution station. t reserun,c 7 e /1 14 i� (S acres) - 2015 e "Ll 11 6. New Long Road Substation - New substation to serve north a,— ❑ Damon (4sacres) -2014 sh Lo ❑ ❑ 7. Locust Substation Reconstruction - Additional adjacent property S.1-Ai.. whs,aaoa to reconstruct the existing station to meet 138kV requirements. (5 -7 e , acres) - 2015 ® 8. North Lakes Substation Reconstruction - Additional adjacent ever property to reconstruct die existing station to meet 138kV e s.� °ne .P rcua„ ❑ requirements. (4 acres) - 2014 a Ncw Underwood Substation - New s'uhstatio w n serve growth in ��a 8 ii000 i„ v °�yn southwest Denton. (5 acres) -2010 10. Fort Worth Substation Expansion - Additional adjacent property a to expand the existing station to serve growth in south Denton. ( I Deana west e ^oy ��� �,�, ����VIw acre) - 2015 mrrrenaase °e 80„ Poccrus° 11. Ncw Brinker Substation -New substation to serve growth along ®0 ° "y�� s'uhsranoa "'ion Loop 288 and cast Denton. (4 acres) - 2017 w� °j'o tort worn, ����0j 12. New Mayhill Substation - New substation to serve southeast Denton and provide a Location for interconnection of transmission w� 000i a ❑ lines, (4.5 act es) -2010 13. Hickory Substation Reconstruction- Additional adjacent property e�000 „iii Cedatn srrnstarioa to reconstruct die existing station to provide adequate space and In °COfl meet 138kV requirements. (4 -6 acres) - 2015 , Tcastc 14. New Station North of Spencer Interchange - New station to Dx1E69KV ®0 "'oo suhsmaon �4 ��� mprove 138kV connectivity and conversion for 69kv loop. (6-8 emu " "iwu wui'^ DNIE I3RKV �q�ium,ii aere9) -20L5 w 'o, � '4 Oa,,",d co Substation Replacement - ReconstmetTMPA Arco Switch ONCOR 13SKV 0 �" 0' DMI; substation on n 0 L ad anent to the existing station. 10 4 r per Y 1 ONCOl'. 345KV acesl -2014 uw Ar ..,re Switch® TMPn 138KV <oaco.> 16. New Substation on the Brazos TM Line -New Substation to servz TMPA 345KV nordrwcst Denton (4.5 acres) 2016 ' BRA[OS i3S1cV 17. New West Substation- New substation to serve west Denton and O interconnect io new transmission line to RD Wells for increased PROPOSED SITES reliability (0 acres) 2016 OAQIIIRED PROPERTY Exhibit 6 DM E Pubk nnvolvement Meeting December 3, 2013 Sign In Sheet EXHIBIT 7 PUBLIC UTILITIES BOARD MEETING AGENDA ITEM #13 DRAFT MINUTES PUBLIC UTILITIES BOARD January 13, 2014 After determining that a quorum 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, January 13, 2014 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901A Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy Robinson, Phil Gallivan Barbara Russell and Lilia Bynum Absent: Leonard Herring Ex Officio Members: Howard Martin, ACM Utilities Absent: George Campbell City Manager OPEN MEETING: PUBLIC HEARING: 1) Hold a public hearing and consider making a recommendation of approval to the City Council regarding the proposed site for reconstruction of the Arco Substation located northeast of the intersection of Geesling Road and Blagg Road in the eastern area of Denton Municipal Electric's service territory; discuss, deliberate, provide staff with direction, and make a recommendation. Brent Heath, Executive Manager of Energy Delivery, made the presentation. Heath showed a map with the location of the proposed site location for the Arco Substation. The Arco Substation must be reconstructed to allow additional transmission lines to be terminated in the station, to increase the bus and equipment ratings, and to provide a better layout and operational configuration for this station. This project has been handed over to DME from Texas Municipal Power Agency (TMPA). TMPA had already identified a site for the project and had initiated discussions with the landowner. All open land in the immediate area of the existing station (northeast of the intersection of Blagg and Geesling) is owned by the same landowner who has indicated that they prefer the site that had been identified by TMPA. Reconstruction on the existing site is not possible because of its inadequate size. The proposed site is bordering and located north of the current site. Notices were sent out to everyone within 500 feet. At the open house on December 3, 2013, three signed in which was held at the Civic Center. There was no comment cards filled out. Considering the information received at the public open house, DME recommends that the Public Utilities Board recommend approval of the proposed site to reconstruct Arco Substation Russell stated that she understands the land owner is in agreement with the site, Heath agreed. Chair Smith asked if anyone wanted to speak for this item, there were none. Motion was made to approve item 1 by Board Member Robinson with the second by Board Member Russell. The vote was 6 -0 approved.