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October 07, 2014 Agenda
City f Denton City Hall Y 215 E. McKinney St. Denton, Texas 76201 ttu�Rltl www.cityofdenton.com Dt�NT N Meeting Agenda City Council Tuesday, October 7, 2014 3:00 PM Work Session Room & Council Chambers After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, October 7, 2014 at 3:00 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: 1. Citizen Comments on Consent Auenda 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 October 7, 2014. 3. Work Session Reports A. SI14 -0008 Receive a report, hold a discussion, and give staff direction regarding a City of Denton Code of Ordinances amendment and Denton Development Code amendment for the sale of all alcohol within the City's corporate limits. Attachments: Exhibit 1- Ordinance 2014 -238 Exhibit 2- Municipal Regulation of Alcohol Sales in North Texas Exhibit 3- Dallas Merchants v City of Dallas Exhibit 4- Arlington Code Language 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. 1. Closed Meeting: A. ID 14 -0601 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; and Consultation with Attorneys - Under Texas Government Code Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests located in the W. Roark Survey, Abstract No. 1087, J. Severe Survey, Abstract 1164, B.B.B. & C.R.R. Co. Survey, Abstract No. 196 and the J. W. Withers Survey, Abstract No. 1343, all in Denton County, Texas, generally located along a line running west to east, commencing at U.S. Highway 377 adjacent to the Fort Worth Drive Substation and continuing to the west right of way line of F. M. 1830 City of Denton, Texas. City ofDenton Page I Printed on 101212014 City Council Meeting Agenda October 7, 2014 Consultation with the City's attorneys regarding legal issues associated with the acquisition or 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. (Denton Municipal Electric Fort Worth T1 Addition Expansion, Denton Municipal Electric Fort Worth Drive and FM 1830 Distribution, and Hickory Creek Detention Facility projects: Burch Family Farms Ltd.)[ID 14 -0603] B. ID 14 -0562 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 vested rights; impacts of federal and state law and regulations; impacts of gas well drilling upon protected uses and vice - versa; moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance; settlement matters concerning gas well drilling in the City; surface development issues involving surface and mineral estates; and legal matters associated with a citizen's initiative regarding hydraulic fracturing where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. C. ID 14 -0596 Consultation with Attorneys - Under Texas Government Code, Section 551.071 Discuss, deliberate, and receive information from the City's attorneys pertaining to sanitary sewer overflows and resulting enforcement action, and provide the City's attorneys with direction, 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 or legal proceedings. 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. GOV'T. CODE, §551.001, ET SEQ. (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. City ofDenton Page 2 Printed on 101212014 City Council Meeting Agenda October 7, 2014 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: 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. ID 14 -0458 Presentation of an award from the Texas Department of Transportation Division to the City of Denton and the Convention and Visitors Bureau. B. ID 14 -0544 Joy Comes to Denton Day C. ID 14 -0593 Fire Prevention Week D. ID 14 -0595 Goodwill Industries of Fort Worth Helping People with Disabilities Day 3. CITIZEN REPORTS A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: A. ID 14 -0609 Receive a report from Bill Coville regarding restrictions on cutting trees. 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 — N). This listing is provided on the Consent Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consent Agenda. If no items are pulled, Consent Agenda Items A — N 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. ID 14 -0579 Consider adoption of an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager to execute a third amendment to a contract for professional legal services with Constangy, Brooks and Smith relating to litigation styled Deborah Shaklee v. City of Denton, Cause No. 2013- 20132 -158; authorizing the expenditure of funds therefor; and providing an effective date. Attachments: Exhibit 1- Ordinance and Agreement B. ID 14 -0582 Consider a request for an exception to the Noise Ordinance for the purpose of the Geezerpalooza music event held on Industrial Street and sponsored by the Geezerpalooza Committee. Live music will be played on the 100 block of Industrial City ofDenton Page 3 Printed on 101212014 City Council Meeting Agenda October 7, 2014 Street on Sunday, October 19, 2014, from noon to 9 p.m. An exception is specifically requested for an increase in sound levels from 70 to 75 decibels and for amplified sound on a Sunday. Staff recommends approval of request. Attachments: Exhibit 1- Letter of Request C. ID 14 -0583 Consider a request for an exception to the Noise Ordinance for the purpose of the Get Out the Vote rally sponsored by the Denton Drilling Awareness and the Pass the Ban groups. Live music will be played in Quakertown Park, located at 321 E. McKinney Street, on Monday, October 20, 2014, from 7 p.m. to 9 p.m. An exception is specifically requested to increase sound levels from 70 to 75 decibels. Staff recommends approval of request. Attachments: Exhibit 1- Letter of Request D. ID 14 -0584 Consider a request for an exception to the Noise Ordinance for the purpose of amplified sound during the Sigma Chi Fraternity 23rd annual Sigma Chi Fight Night. The event will be located in the parking lot behind Lucky Lou's located at 1207 W. Hickory Street beginning at 6 p.m. and concluding at midnight on Thursday, October 23, 2014. This request is for an extension of hours for amplified sound from 10 p.m. to midnight. Staff recommends approving request. Attachments: Exhibit 1- Letter of Request E. ID 14 -0586 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 by and between the City of Denton, Texas and CDM Smith, Inc. for engineering services relating to the final design phase of the City of Denton Pecan Creek Water Reclamation Plant Phosphorus Removal Project; authorizing the expenditure of funds therefor; providing an effective date (File 5319 in the additional amount not -to- exceed $269,240; aggregating a total not -to- exceed $354,375). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1 -PUB Agenda sheet Exhibit 2 -PUB Minutes Exhibit 3- Ordinance Exhibit 4- Contract F. ID 14 -0587 Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for Directional Boring Services; providing for the expenditure of funds therefor; and providing an effective date (RFP 5570- awarded to Gardner Telecommunications, Inc. (GTI), in the three (3) year not -to- exceed amount of $1,531,410). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1 -BAFO Pricing Exhibit 2 -PUB Minutes Exhibit 3- Ordinance G. ID 14 -0588 Consider adoption of an ordinance awarding a contract under the Texas Multiple Award Schedule (TXMAS) Program for the purchase of mechanical (heating, ventilation and air conditioning), electrical, or plumbing (MEP) services to be performed at City of Denton facilities as awarded by the State of Texas Procurement City ofDenton Page 4 Printed on 101212014 City Council Meeting Agenda October 7, 2014 and Support Services (Contract TXMAS 03FAC -10 -070); providing for the expenditure of funds therefor; and providing an effective date (File 5652- awarded to Brandt Companies, LLC, in the annual not -to- exceed amount of $1,500,000 for a three (3) year not -to- exceed amount of $4,500,000). Attachments: Exhibit 1 -TXMAS Contract Exhibit 2- Ordinance H. ID 14 -0589 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Electric Meters, Current Transformers, Meter Sockets, and Automatic Metering Infrastructure (AMI) Equipment for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5584- awarded to HD Supply Power Solutions in the three (3) year not -to- exceed amount of $4,307,685). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1- Evaluation and BAFO Exhibit 2 -PUB Minutes Exhibit 3- Ordinance Exhibit 4- Contract L ID 14 -0590 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Electric Utility Overhead and Underground Distribution Transformers for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5347- awarded to Techline, Inc. in the three (3) year not -to- exceed amount of $4,500,000). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1- Evaluation and BAFO Exhibit 2 -PUB Minutes Exhibit 3- Ordinance Exhibit 4- Contract J. ID 14 -0591 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Electric Utility Station Service Voltage Transformers for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5596- awarded to ABB HVIT in the three (3) year not -to- exceed amount of $350,000). The Public Utilities Board recommends approval (5 -0). Attachments: Exhibit 1- Evaluation and BAFO Exhibit 2 -PUB Minutes Exhibit 3- Ordinance Exhibit 4- Contract K. ID 14 -0597 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Golf Contractor Services for the City of Denton Parks Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 5490- awarded to Premier Junior Golf Development, LLC in the three (3) year City ofDenton Page 5 Printed on 101212014 City Council Meeting Agenda October 7, 2014 not -to- exceed amount of $300,000). Attachments: Exhibit 1 -BAFO and Pricing Sheet Exhibit 2- Ordinance Exhibit 3- Contract L. ID 14 -0598 Consider approval of the Public Art Committee's recommendation to select Karmien Bowman as the artist for the outdoor sculptures titled "Leap Frogs" at North Lakes Park as public art for the City of Denton; and declare an effective date. The sculptures will cost $26,000 and will be consistent with the City of Denton Public Art policy approved by Resolution R2013 -021, and will be funded with Hotel Occupancy Tax revenues previously authorized and encumbered for such purpose. The Public Art Committee recommends approval with a vote of 6 -0. Attachments: Exhibit 1- Public Art Committee Minutes September 4, 2014 Exhibit 2- I11ustration of the sculptures M. ID 14 -0603 Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Purchase Agreement, by and between the City of Denton, Texas, ( "City "), as Buyer and Burch Family Farm, Ltd., (Owner ") as Seller, to acquire (1) fee simple title to an approximate 1.074 acre tract (the "Substation Tract ") located in the W. Roark Survey, Abstract No. 1087 and the J. Severe Survey, Abstract No. 1164, both in Denton County, Texas, located generally along the east line of U. S. Highway 377 adjacent to and east of the Fort Worth Drive Substation Addition, and (ii) fee simple title to an approximate 0.627 acre tract (the "Pump Station Tract ") located in the B.B.B. & C. R. R. Co. Survey, Abstract No. 196 and the J. W. Withers Survey, Abstract No. 1343, both in Denton County, Texas, generally located west and adjacent to the G. C. & S. F. Railroad right of way and running to the west right of way line of F. M. Highway 1830, and (iii) an approximate 0.476 acre ingress and egress easement tract located in the J. Severe Survey, Abstract No. 1164, Denton County, Texas, located generally along the east line of U. S. Highway 377 adjacent to and south of the Fort Worth Drive Substation Addition, Denton County, Texas, and (iv) an approximate 1.802 acre electric utility and communication easement located in the W. Roark Survey, Abstract No. 1087, Denton County, Texas, located generally east of the Ft. Worth Drive Substation Addition and (v) an approximate 1.793 acre temporary construction and access easement located in the W. Roark Survey, Abstract No. 1087, Denton County, Texas, located generally north of and adjacent to the 1.802 acre tract; (the "Property Interests "); all for the purchase price of One Hundred Sixty Six Thousand Five Hundred Eighty Four Dollars and No Cents ($166,584.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "A ", (I) authorizing the expenditure of funds therefore; (II) providing a savings clause; and (III) providing an effective date. (Denton Municipal Electric Fort Worth T1 Addition Expansion, Denton Municipal Electric Fort Worth Drive and FM 1830 Distribution, and Hickory Creek Detention Facility projects: Burch Family Farms Ltd.) Attachments: Exhibit 1 - Location Map Exhibit 2 - Ordinance City ofDenton Page 6 Printed on 101212014 City Council Meeting Agenda October 7, 2014 N. ID 14 -0611 Consider adoption of an ordinance of the City of Denton, Texas authorizing the approval of a professional legal services agreement by and between Terry Morgan & Associates, P.C. and the City of Denton, Texas; providing for the expenditure of funds; and providing an effective date. Attachments: Exhibit 1- Ordinance Exhibit 2- Letter Agreement 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 14 -0599 Consider nominations /appointments to the City's Boards and Commissions: Health & Building Standards Commission; Human Services Advisory Committee; Library Board; Parks, Recreation & Beautification Board; Public Art Committee; and Traffic Safety Commission. Attachments: Exhibit 1- Nominations Sheet 6. 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. 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. City ofDenton Page 7 Printed on 101212014 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: S114 -0008, Version: Legislation Text Agenda Information Sheet DEPARTMENT: Planning and Development ACM: John Cabrales, Jr. Date: October 7, 2014 SUBJECT Receive a report, hold a discussion, and give staff direction regarding a City of Denton Code of Ordinances amendment and Denton Development Code amendment for the sale of all alcohol within the City's corporate limits. BACKGROUND On August 5th, 2014, the City Council approved Ordinance No. 2014 -238 ordering an election to be held on November 4, 2014, to legalize the sale of all alcoholic beverages including mixed beverages. If this local option election passes, the sale of all alcoholic beverages within corporate limits of the City of Denton would be permitted. The Texas Alcoholic Beverage Commission (TABC) regulates all phases of the alcoholic beverage industry in Texas with the Alcohol Beverage Code. This discussion will detail the actions that the City of Denton may take to regulate existing establishments that sell alcoholic beverages and how the City of Denton will be able to regulate new uses and new establishments that will sell alcoholic beverages. DISCUSSION The Alcohol Beverage Code dictates the scope of local regulation of alcoholic beverages and expressly states that the TABC will exclusively govern the regulation of alcoholic beverages except as otherwise provided, pursuant to Sec. 109.57, Application of Code; Other Jurisdictions: (a) Except as is expressly authorized by this code, a regulation, charter, or ordinance proinulgated by a governinental entity of this state inay not impose stricter standards on preinises or businesses required to have a license or peg snit under this code than are unposed on shnilar preinises or businesses that are not required to have such a license or peg snit. As such, when regulating the sale of alcohol within the City of Denton, City ordinances cannot be more prohibitive than the TABC. Sales of alcohol must be treated the same as any other general retail use, subject to TABC requirements. For example, if a Specific Use Permit (SUP) or limitation applies to general retail in a zoning district, that requirement may be extended to the package liquor store. City of Denton Page 1 of 4 Printed on 10/2/2014 File #: S114 -0008, Version: 1 According to the Alcohol Beverage Code, cities may do the following to regulate the sale of alcohol: A. A city may prohibit the sale of alcohol by charter in residential areas. B. A city may prohibit through ordinance the sale of alcohol within 300 feet of a church, public or private school, or public hospital. • If the governing body receives a request from the board of trustees of a school district, the regulation may extend to 1,000 ft. • If the governing body receives a request from the board of trustees of a private school, the regulation may extend to 1,000 ft. C. A city may also prohibit the sale of alcohol within 300 feet of a child or day care center; however, this only applies to beer and wine retailers, mixed beverage permits, private clubs, retail dealer's on- premise license, and brewpub licenses. Distance restrictions do not apply to foster homes. D. Distance requirements do not apply to holders of wholesaler's, distributor's, brewer's, distiller's, winery, wine bottler's, or manufacturer's permits. E. A city may regulate the location of an establishment that derives more than 75% of its revenue from sale of alcohol for on- premise consumption. F. A city may request from the TABC, an order prohibiting open containers or the public consumption of alcoholic beverages in a central business district; provided however, the TABC's order cannot prohibit possession or consumption in a motor vehicle, a building not owned by the city, a residential structure, or licensed premises located in the central business district. G. A city may adopt regulations prohibiting the possession of an open container or the consumption of an alcoholic beverage on a public street, public alley, or public sidewalk within 1000 feet for the property line of a homeless shelter or substance abuse treatment center that is NOT located in a central business district. If the local option on the sale of alcohol passes, existing establishments under the "private club" use would not have to retain their Private Club license from the TABC. They would instead operate under a different TABC license that allows the on- premise sale and consumption of beer, wine, or liquor. This local option election would also allow package liquor sales within city limits. Due to TABC regulations, city ordinances may not be more prohibitive than the TABC allows, and the sale of alcohol must be treated the same as any other general retail use. As such, package liquor stores would be permitted by right in the following zoning districts: Downtown Commercial General (DC -G) Community Mixed Use General (CM -G) Regional Center Commercial Downtown (RCC -D) Employment Center Commercial (EC -C) They would also be permitted with certain limitations in: Neighborhood Residential Mixed Use 12 (NRMU -12) (L15) Neighborhood Residential Mixed Use (NRMU) (L 17) Downtown Residential 2 (DR -2) (L15) Downtown Commercial Neighborhood (DC -N) (L17) Community Mixed Use Employment (CM -E) (L 14) Regional Center Residential 1 (RCR -1) (L17) City of Denton Page 2 of 4 Printed on 10/2/2014 File M S114 -0008, Version: Regional Center Residential 2 (RCR -2) (L17) Regional Center Commercial Neighborhood (RCC -N) (L 13). Limitations: L(13) = Uses are limited to no more than fifty -five thousand (55,000) square feet of gross floor area per lot. L(14) = Uses are limited to no more than ten thousand (10,000) square feet of gross floor area. L(15) = Uses are limited to no more than five thousand (5,000) square feet of gross floor area per lot. An SUP is required for additional square footage for Semi - Public Halls, Clubs and Lodges. L(17) = Uses that exceed twenty -five thousand (25,000) square feet of gross floor area per use require approval of a SUP. The City of Dallas attempted to regulate these types of businesses and in 1987, passed an ordinance creating an overlay district in which no business was allowed to sell or serve alcoholic beverages within 300 feet of residentially zoned properties not located on a freeway service road or other specified road unless granted a SUP by City Council. The Supreme Court of Texas ruled that the ordinance enacted by the City of Dallas was preempted by the Alcoholic Beverage Code (Exhibit 3). In 2013, the City of Arlington held a similar election, allowing for the sale of all alcoholic beverages. Following the election, Arlington adopted language for their code of ordinances that reflected the language used by the TABC (Exhibit 4). Staff researched other Texas municipalities to determine regulations adopted to regulate the sale of alcohol. Those regulations are detailed in Exhibit 2. OPTIONS Direct staff to pursue a City of Denton Code of Ordinances amendment and Denton Development Code (DDC) amendment for the sale of all alcohol within the corporate City limits. If the City of Denton wanted to regulate these types of businesses as it relates to distance requirements or prohibition of alcohol sales in residential zones, then amending the DDC is required. Once the official vote is canvassed on November 18, 2014, potential businesses will be permitted to submit for permits immediately. Applicants will also have to provide a TABC license for the City of Denton. RECOMMENDATION Following the canvassing of the vote on November 18, 2014, staff recommends that City Council adopt an ordinance for the regulations allowed by the TABC, as the Council deems appropriate. Once private clubs no longer operate under the TABC Private Club License, staff recommends a DDC amendment be adopted to regulate these uses. The closest definition for these establishments becomes "Retail Sales and Services ". A code amendment to establish a definition for these establishments may be appropriate. This use would be no more restrictive than the Private Club use. Package Liquor stores would fall under "Retail Sales and Services ", as permitted by the TABC. Other than the regulations established by the TABC, these stores cannot be further regulated. City of Denton Page 3 of 4 Printed on 10/2/2014 File #: S114 -0008, Version: Following the adoption of those regulations and the adoption of a use for establishments previously operated as Private Clubs, the City of Denton may also consider the adoption of other uses and definitions such as "Brewery ", Microbrewery ", "Winery ", or "Brewpub" that currently fall under a broader definition in the DDC. ESTIMATED SCHEDULE OF PROJECT Following the canvassing of the local option election on November 18, 2014, staff will present this item for the City Council's consideration, Code of Ordinances and DDC amendments. PRIOR ACTION/REVIEW (Council, Boards, Commissions) August 5, 2014, the City Council passed and approved City Ordinance No. 2014 -238 ordering an election to be held on November 4, 2014, to legalize the sale of all alcoholic beverages including mixed beverages. FISCAL INFORMATION No fiscal impact analysis has been performed as a part of this report. BID INFORMATION Not applicable. EXHIBITS 1. Ordinance 2014 -238 2. Municipal Regulation of Alcohol Sales in North Texas 3. Dallas Merchants and Concessionaire's Association v. City of Dallas, 852 S.W.2d 489 (Texas 1993) 4. Example Code Language from City of Arlington, TX Respectfully submitted: Brian Lockley, AICP, CPM Director of Planning and Development Prepared by: Sophie Huemer Assistant Planner City of Denton Page 4 of 4 Printed on 10/2/2014 Exhibit 1 S:\Legal\Our Documents\Ordinances\14\Ordinance Ordering Local Option Election.docx Exhibit I AN ORDINANCE ORDERING AN ELECTION TO BE HELD IN THE CITY OF DENTON, TEXAS, ON NOVEMBER 4, 2014, TO LEGALIZE THE SALE OF ALL ALCOHOLIC BEVERAGES INCLUDING MIXED BEVERAGES; MAKING FINDINGS; PROVIDING A REPEALER CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY; AND PROVIDING FOR PUBLICATION AND AN EFFECTIVE DATE. WHEREAS, pursuant to Title 17, Chapter 501, Section 501.032(a)(1)(A) of the Texas Election Code the City is required to receive signatures representing at least 35 percent of the registered voters in the subdivision who voted in the most recent gubernatorial election, or 6,482 signatures, before a local option election to legalize the sale of all alcoholic beverages including mixed beverages can be ordered; and WHEREAS, on July 3, 2014 the City of Denton received a petition from Denton First to order a local option election to legalize the sale of all alcoholic beverages including mixed beverages; and WHEREAS, after duly verifying the signatures within the thirty (30) day period as required by law, the City Secretary certified 6,489 signatures which meet the statutorily required threshold set forth in Chapter 501 of the Texas Election Code; and WHEREAS, the City Council finds that the provisions of Article 16, Section 20 of the Texas Constitution, Chapter 251 of the Texas Alcoholic Beverage Code and Chapter 501 of the Texas Election Code, as applicable, have been complied with; and WHEREAS, the City Council of the City of Denton determined that the matter be resolved by the voters of the City of Denton; and WHEREAS, applicable state law requires this election to be held on the next uniform election date, November 4, 2014; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The preamble clauses above are incorporated into this Ordinance as though set forth in full. SECTION 2. A municipal election is ordered to be held in the City of Denton, Texas on Tuesday, November 4, 2014, such date being a uniform election date as defined in Tex. Elec. Code §41.001, as amended (the "Code"), to legalize the sale of all alcoholic beverages including mixed beverages. SECTION 3. The form of the ballot shall be substantially as follows: SHALL THE CITY OF DENTON, DENTON COUNTY, TEXAS AUTHORIZE THE LEGAL SALE OF ALL ALCHOLIC BEVERAGES INCLUDING MIXED BEVERAGES. Exhibit 1 FOR THE ISSUE AGAINST THE ISSUE SECTION 4. The election and early voting shall be conducted at the time and in the manner specified in and in accordance with an agreement between the Election Administrator of Denton County and the City of Denton. SECTION 5. The manner of holding such election and all questions pertaining thereto shall be governed by the election laws of the State of Texas. SECTION 6. Should any provision of this Ordinance be held finally invalid by a Court of Law, such provision shall be severed from the remaining provisions of this Ordinance and the remaining provisions shall continue in full force and effect. SECTION 7. The City Council has found and determined that the meeting at which this Ordinance is considered is open to the public, and that notice thereof was given in accordance with provisions of the Texas open meetings law, Tex. Gov't. Code ch. 551, as amended, and that a quorum of the City Council was present. SECTION 8. This Ordinance shall become effective immediately upon its passage and approval. PRESENTED, PASSED AND APPROVED on the , day of r ". , r z 2014 at a regular meeting of the City Council of the City of Denton, Texas, by vote of , ayes and ":k nays at the regular meeting of the City Council of the City of Denton, Texas. PASSED AND APPROVED this the ti_.._ day of 2014. ,t CHR1 S 4TTS, MAYOR Ww�. ATTEST: JENNIFER WALTERS, CF 'Y SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY g. BY: Page 2 Exhibit 2 Municipal Regulation of Alcohol Sales in North Texas By right in retail, commercial, and industrial districts Does not define liquor stores as a separate use, categorizes with Misc. Retail Stores, which allows them in all commercial and industrial districts by right Wherever general retail allowed Wherever general retail allowed Adopted by ordinance, prohibited 300 ft from church, public school, or public hospital Adopted by ordinance, prohibited 300 ft from church, public school, or public hospital Adopted by ordinance; prohibited 300' of a church, public school, or public hospital, day -care center, or child -care facility as defined by the TABC; prohibits open container within 1000 ft of a homeless shelter located outside of CBD, prohibits open containers in the CBD Adopted by Ordinance prior to election; 300 ft from church, public school, or public hospital Exhibit 3 Exhibit 3 /pstl V\i Dallas Merchants and Concessionaire's Association v. City of Dallas, 852 S.W.2d 489 (Texas 1993) Page 1 852 S.W.2d 489 (Cite as: 852 S.W.2d 489) 19 Supreme Court of Texas. DALLAS MERCHANT'S AND CONCESSION- AIRE'S ASSOCIATION et al., Petitioners, V. CITY OF DALLAS, Respondent. No. D -2159. April 7, 1993. Rehearing Overruled June 3, 1993. Merchants association challenged validity of home -rule city's zoning ordinance dispersing loca- tion of alcohol - related businesses. The 134th Dis- trict Court, Dallas County, Anne Ashby Packer, J., granted relief, and city appealed. The Court of Ap- peals, 823 S.W.2d 347, reversed and rendered, and further appeal was taken. The Supreme Court, Hightower, J., held that ordinance of home -rule city prohibiting sale of alcoholic beverages within 300 feet of residential areas was preempted by Texas Alcoholic Beverages Code. Reversed. Enoch, J., dissented and filed opinion in which Hecht and Cornyn, JJ., joined. West Headnotes [1] Municipal Corporations 268 C=65 268 Municipal Corporations 268III Legislative Control of Municipal Acts, Rights, and Liabilities 268k65 k. Local Legislation. Most Cited Cases Home -rule cities possess full power of self - government and look to legislature not for grants of power, but for limitations on their power. Vernon's Ann.Texas Const. Art. 11, § 5. [2] Municipal Corporations 268 0111(2) 268 Municipal Corporations 268IV Proceedings of Council or Other Govern- ing Body 2681V(B) Ordinances and By -Laws in Gener- al 268k111 Validity in General 268k111(2) k. Conformity to Constitu- tional and Statutory Provisions in General. Most Cited Cases Ordinance of home -rule city that attempts to regulate subject matter preempted by state statute is unenforceable to extent it conflicts with state stat- ute. [3] Municipal Corporations 268 0592(1) 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Ex- ercise of Power by State and Municipality 268k592(1) k. In General. Most Cited Cases Mere fact that legislature has enacted law ad- dressing subject does not mean that subject matter is completely preempted, precluding home -rule city's regulation. [4] Municipal Corporations 268 «111(2) 268 Municipal Corporations 268IV Proceedings of Council or Other Govern- ing Body 2681V(B) Ordinances and By -Laws in Gener- al 268k111 Validity in General 268k111(2) k. Conformity to Constitu- tional and Statutory Provisions in General. Most Cited Cases General law and city ordinance will not be held repugnant to each other if any other reasonable con- struction leaving both in effect can be reached. C 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 852 S.W.2d 489 (Cite as: 852 S.W.2d 489) [5] Municipal Corporations 268 «65 268 Municipal Corporations 268III Legislative Control of Municipal Acts, Rights, and Liabilities 268k65 k. Local Legislation. Most Cited Cases If legislature chooses to preempt subject matter usually encompassed by broad powers of home -rule city, it must do so with unmistakable clarity. [6] Intoxicating Liquors 223 «ll 223 Intoxicating Liquors 223I Power to Control Traffic 223k9 Delegation of Powers 223kII k. Concurrent and Conflicting Regulations by State and Municipality. Most Cited Cases Texas Alcoholic Beverages Code preempts or- dinance of home -rule city that regulates where alco- holic beverages are sold under most circumstances. V.T.C.A., Alcoholic Beverage Code § 109.57(b). [7] Intoxicating Liquors 223 010(3) 223 Intoxicating Liquors 223I Power to Control Traffic 223k9 Delegation of Powers 223k10 To Local Authorities in General 223k10(3) k. Power to Prohibit or Re- strict as to Locality. Most Cited Cases Home -rule city may not by ordinance prohibit sale of beer in nonresidential areas or sale of liquor in residential or nonresidential areas; sale of liquor may be prohibited within residential areas only by charter, while sale of beer may be prohibited within residential areas by ordinance or charter. V.T.C.A., Alcoholic Beverage Code §§ 109.31, 109.32. [8] Intoxicating Liquors 223 <=11 223 Intoxicating Liquors 223I Power to Control Traffic 223k9 Delegation of Powers 223kII k. Concurrent and Conflicting Regulations by State and Municipality. Most Cited Exhibit 3 Page 2 Cases Ordinance of home -rule city prohibiting sale of alcoholic beverages within 300 feet of residential area was preempted by Texas Alcoholic Beverages Code. V.T.C.A., Alcoholic Beverage Code § 109.57(b). [9] Intoxicating Liquors 223 010(3) 223 Intoxicating Liquors 223I Power to Control Traffic 223k9 Delegation of Powers 223k10 To Local Authorities in General 223k10(3) k. Power to Prohibit or Re- strict as to Locality. Most Cited Cases Statute calling for city secretary to certify whether ordinance or charter prohibits sale of alco- holic beverages in area where alcoholic beverages will potentially be sold allows secretary to withhold certification only if ordinance or charter prohibits sale of alcoholic beverages in manner allowed by Texas Alcoholic Beverages Code. V.T.C.A., Alco- holic Beverage Code §§ 61.37, 109.57(b). *489 Richard M. Lannen, Diane Snelson, Eric V. Moy4 e, Eric R. Cromartie, David C. Godbey, An- drew L. Siegel, Dallas, for petitioners. Dan Morales, Austin, John Rogers, Dallas, W. Reed Lockhoof, Austin, Analeslie U. Muncy, Fort Worth, Angela Washington, *490 Sam A. Lindsay, Dallas, for respondent. OPINION HIGHTOWER, Justice. In this cause, we consider whether an ordin- ance of a home -rule city prohibiting the sale of al- coholic beverages within 300 feet of a residential area is preempted by the Texas Alcoholic Beverage Code (TABC). In 1990, the Dallas Merchants and Concessionaires Association, the Texas Package Stores Association, and other individuals (hereinafter "Merchants ") filed suit against the City of Dallas ( "City ") for declaratory and injunctive re- lief. The trial court held that the ordinance was C 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 852 S.W.2d 489 (Cite as: 852 S.W.2d 489) preempted by the TABC. The court of appeals re- versed. 823 S.W.2d 347. We hold that an ordinance of a home -rule city prohibiting the sale of alcoholic beverages within 300 feet of a residential area is preempted by the TABC. Consequently, we reverse the judgment of the court of appeals and affirm the judgment of the trial court. On September 30, 1987, the Dallas City Coun- cil ( "Council') passed Ordinance No. 19694 ( "Ordinance "), which created new zoning categor- ies for South Dallas. The Ordinance imposed a D -1 overlay on certain areas of South Dallas and ex- empted certain areas that are outside of and do not effect the residential areas of South Dallas. In this D -1 overlay area, no business is allowed to sell or serve alcoholic beverages within 300 feet of resid- entially zoned properties not located on a freeway service road or other specified road. However, a business in a D -1 overlay area may sell or serve al- coholic beverages if the Council grants a specific use permit (SUP). On October 12, 1988, the Coun- cil approved Resolution 883306, which established the guidelines for evaluating SUP applications for selling or serving alcoholic beverages in areas of South Dallas affected by the D -1 overlay. In June 1990, the Merchants filed suit against the City. Following a bench trial, the trial court rendered judgment which, among other things, granted the declaratory and injunctive relief requested by the Merchants. The trial court concluded that the D -1 overlay provisions of the Ordinance conflicted with the TABC and was void to that extent under article XI, section 5 of the Texas Constitution. FNI The tri- al court also permanently enjoined the City from enforcing the D -1 overlay provisions of the Ordin- ance. The court of appeals reversed and rendered judgment. FN1. In the findings of fact, the trial court stated in part: 14. None of the SUPs filed by any Estab- lishment within the areas zoned D -1 by Ordinance 19694 had been granted. Exhibit 3 Page 3 15. The criteria adopted by the Dallas City Council make it virtually im- possible for any existing Establishment to qualify for a SUP. 16. Ordinance 19694 conflicts with and is preempted by the Texas Alcoholic Beverages Code ( "TABC "), in that: the Ordinance and the SUP standards im- pose location restrictions that are incon- sistent with the TABC; the Ordinance and the SUP standards attempt to regu- late the sale of alcoholic beverages, oth- er than beer, by ordinance; the Ordin- ance and the SUP standards discriminate against establishments holding permits issued under the TABC, and; the Ordin- ance and the SUP standards impermiss- ibly attempt to disenfranchise the choice of the voters of the areas affected by Or- dinance 19694 in violation of the Local Option provisions and procedures set forth in the TABC. I. The Merchants argue that the Ordinance is preempted by the TABC. We agree. PREEMPTION OF HOME –RULE CITIES [1] To determine whether the Ordinance is preempted by the Texas Alcoholic Beverage Code, we must decide whether the Legislature, by enact- ing and amending the TABC, preempted ordinances of home -rule cities that prohibit the sale of alcohol- ic beverages under these circumstances. Home -rule cities have broad discretionary powers, provided that no ordinance "shall contain any provision in- consistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." TEX. CONST. art. XI, § 5. Home -rule cities possess the full power of self government and look to the Legislature not *491 for grants of power, but only for limitations on their power. AVR's Fare of Dallas v. City of Dallas, 792 S.W.2d 569, 573 (Tex.App.— Dallas 1990, writ denied). © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 852 S.W.2d 489 (Cite as: 852 S.W.2d 489) [2][3][4][5] An ordinance of a home -rule city that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it conflicts with the state statute. See City of Brook- side Village v. Comeau, 633 S.W.2d 790, 796 (Tex.1982), cent. denied, 459 U.S. 1087, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982). However, "the mere fact that the legislature has enacted a law address- ing a subject does not mean the complete subject matter is completely preempted." City of Richard- son v. Responsible Dog Owners, 794 S.W.2d 17, 19 (Tex. 1990). "[A] general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached." City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, 206 (1927). Thus, if the Legis- lature chooses to preempt a subject matter usually encompassed by the broad powers of a home -rule city, it must do so with unmistakable clarity. See City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964). TEXAS ALCOHOLIC BEVERAGE CODE [6] In 1977, the Legislature codified the Texas Liquor Control Act into the TABC.FN2 Prior to the codification, several courts of appeals held that various ordinances of home -rule cities prohibiting the sale of alcoholic beverages were not preempted by the Texas Liquor Control Act. See, e.g., City of Clute V. Linscomb, 446 S.W.2d 377 (Tex.Civ.App.— Houston [1st Dist.] 1969, no writ); Louder v. Texas Control Board 214 S.W.2d 336 (Tex.Civ.App.— Beaumont 1948, writ refd n.r.e.); Eckert V. Jacobs, 142 S.W.2d 374 (Tex.Civ.App.— Austin 1940, no writ). Subsequent to the codification, the Eleventh Court of Appeals held that the TABC did not preempt ordinances prohibiting the sale of alcoholic beverages. See Young, Wilkinson & Roberts v. City of Abilene, 704 S.W.2d 380, 383 (Tex.App.— Eastland 1985, writ refd n.r.e.) ( "We hold that the Constitution and general statutes of this State do not deny the City [a home rule city] the right to regulate the area of the City in which liquor could be sold. "); Abilene Oil Distributors v. City of Abilene, 712 S.W.2d 644 Exhibit 3 Page 4 (Tex.App.— Eastland 1986, writ refd n.r.e.). FN2. "[The TABC] is intended as a recodi- fication only, and no substantive change in the law is intended by this Act." Acts 1977, 65th Leg., ch. 194, § 7. Subsequently, in 1987, the Legislature added section 109.57 to the TABC and further amended it in 1991 to read in part: (a) Except as expressly authorized by this code, a regulation, charter, or ordinance promulgated by a governmental entity of this state may not im- pose stricter standards on premises or businesses required to have a license or permit under this code than are imposed on similar premises or businesses that are not required to have such a li- cense or permit. (b) It is the intent of the legislature that this code shall exclusively govern the regulation of alcoholic beverages in this state, and that except as permitted by this code, a governmental entity of this state may not discriminate against a busi- ness holding a license or permit under this code. (c) Neither this section nor Section 1.06 of this code affects the validity or invalidity of a zoning regulation that was formally enacted before June 11, 1987 and that is otherwise valid, or any amendment to such a regulation enacted after June 11, 1987 if the amendment lessens the re- strictions on the licensee or permittee or does not impose additional restrictions on the licensee or permittee. For purposes of this subsection, "zoning regulation" means any charter provision, rule regulation, or other enactment governing the location or use of buildings, other structures, and land. TEX.ALCO. BEV. CODE ANN. § 109.57(a), (b) & (c) (Vernon Supp.1992). The Legislature's in- tent is clearly expressed in section 109.57(b) of the TABC —the regulation of alcoholic beverages is ex- clusively governed by the provisions of the TABC © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 852 S.W.2d 489 (Cite as: 852 S.W.2d 489) unless otherwise *492 provided.FN3 and Washington). TEX.ALCO.BEV.CODE ANN. § 109.57(b) (Vernon Supp.1992). Section 109.57 clearly pree- mpts an ordinance of a home -rule city that regulates where alcoholic beverages are sold under most cir- cumstances.FN4 Accordingly, we hold that, to the extent ofFNSy conflict, the TABC preempts the Or- dinance. Exhibit 3 Page 5 FN4. Section 109.57(d) of the TABC states: (d) This section does not effect the au- thority of a governmental entity to regu- late, in a manner as otherwise permitted by law, the location of: FN3. While the dissent contends that the legislature did not deny home rule cities (1) a massage parlor, nude modeling stu- the ability to regulate with unmistakable dio, or other sexually oriented business; clarity under these circumstances, how or much more clear must the legislature be (2) an establishment that derives 75 per - than Section 109.57(b), which states: "It is cent or more of the establishment's gross the intent of the legislature that this code revenue from the on- premise sale of al- [TABC] shall exclusively govern the regu- coholic beverages. lation of alcoholic beverages in this state...... TEX.ALCO.BEV.CODE ANN. § Because none of the parties assert that 109.57(b) (Vernon Supp.1992). In addi- the Ordinance implicates this provision, tion, Senator McFarland, who was a mem- we express no opinion concerning its ap- ber of the Conference Committee on H.B. plicability. 1652 which enacted Section 109.57, indic- ated that Section 109.57 was intended to Since the following cases pre -date the clarify that the TABC governed the loca- enactment of section 109.57, they are not tion of licensees and permittees and that applicable when determining the pree- cities could only regulate the location of li- mptive effect of section 109.57. See Abi- censees and permittees in the instances lene Oil Distributors v. City of Abilene, provided by the TABC. Specifically, Sen- 712 S.W.2d 644 (Tex.App.— Eastland ator McFarland stated, 1986, writ ref n.r.e.); Young, Wilkinson & Roberts v. City of Abilene, 704 [I]t [Section 109.57] says except as au- S.W.2d 380 (Tex.App.— Eastland 1985, thorized by this code [a governmental writ refd n.r.e.); T & R Assoc., Inc. v. entity may not regulate the location of a City of Amarillo, 688 S.W.2d 622, 625 business holding a license or a permit] (Tex.Civ.App.— Amarillo, writ ref and there's numerous provisions n.r.e.); Massengale v. City of Copperas throughout the code which governmental Cove, 520 S.W.2d 824, 829 entities have the authority by zoning or (Tex.Civ.App. —Waco 1975, writ ref d other ordinances, to limit the location of n.r.e.; Derkard v. City of Port Lavaca, businesses or the type of businesses 491 S.W.2d 748, 751 selling alcoholic beverage. (Tex.Civ.App.— Corpus Christi 1973, no writ); City of Clute v. Linscomb, 446 Debate of conference committee report S.W.2d 377 (Tex.Civ.App.— Houston on Tex.H.B. 1652 on the floor of the [Ist Dist.] 1969, no writ); Discount Li- Senate, 70th Leg. (June 1, 1987) quors No. 2, Inc. v. Texas Liquor Con - (colloquy between Senators McFarland C 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Exhibit 3 Page 6 852 S.W.2d 489 (Cite as: 852 S.W.2d 489) trol Board 420 S.W.2d 422, 423, 425 wet area and whether the sale of alcohol - (Tex.Civ.App.— Amarillo 1967, writ is beverages for which the license is refd n.r.e.); Louder v. Texas Liquor sought is prohibited by any valid order Control Board 214 S.W.2d 336 of the commissioners court. (Tex.Civ.App.— Beaumont 1948, writ refd n.r.e.); Eckert v. Jacobs, 142 (b) The city secretary or clerk of the city S.W.2d 374 (Tex.Civ.App.— Austin in which an application for a license is 1940, no writ). made shall certify whether the location or address given in the application is in a FNS. The dissent argues that if this court wet area and whether the sale of alcohol - holds that the TABC preempts an ordin- is beverages for which the license is ance regulating where alcoholic beverages sought is prohibited by charter or ordin- are sold, sellers of alcoholic beverages will ance. not have to comply with any city ordin- ance. This argument is without merit. Sec- TEX.ALCO.BEV.CODE ANN. § 61.37 tion 109.57(a) provides that an ordinance (Vernon 1978). Section 109.31 reads: may not impose stricter standards on alco- A city by charter may prohibit the sale of hol related businesses than on non - alcohol liquor in all or part of the residential sec - related businesses. bons of the city. TEX.ALCO.BEV.CODE § 109.57(a) (Vernon Supp.1992). For example, under TEX.ALCO.BEV.CODE ANN. § 109.31 section 109.57(a), an ordinance requiring (Vernon 1978). Section 109.32 reads in all businesses with the same kind of pertinent part: premises to have a fire extinguisher on their premises would not violate section (a) An incorporated city or town by 109.57(a). On the other hand, an ordinance charter or ordinance may: requiring an alcohol related business to have two fire extinguishers and only re- (1) prohibit the sale of beer in a residen- quired a non - alcohol related business with tial area; and the same kind of premises to have one fire extinguisher would violate section (2) regulate the sale of beer and pre- (a). scribe hours when it may be sold, except a city or town may not permit the sale of II. beer when its sale is prohibited by this The City argues that if section 109.57 preempts code. an ordinance of a home -rule city regulating where alcoholic beverages are sold, sections 61.37, 109.31 TEX.ALCO.BEV.CODE ANN. § 109.32 109.32, and 109.33 will be rendered meaningless. (Vernon 1978). Section 109.33 reads in PN6 We disagree. pertinent part: FN6. Section 61.37 reads in pertinent part: (a) The commissioners court of a county may enact regulations applicable in areas (a) The County Clerk of the county in in the county outside an incorporated which an application for a license is city or town, and the governing board of made shall certify whether the location a city or town may enact regulations ap- or address given in the application is in a plicable in the city or town, prohibiting C 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 852 S.W.2d 489 (Cite as: 852 S.W.2d 489) the sale of alcoholic beverages by a deal- er whose place of business is within 300 feet of a church, public school, or public hospital. TEX.ALCO.BEV.CODE ANN. § 109.33 (Vernon Supp.1992). *493 [7] Section 109.57 expressly states that the TABC will exclusively govern the regulation of alcoholic beverages except as otherwise provided by the TABC.FN7 TEX.ALCO.BEV.CODE ANN. § 109.57 (Vernon Supp.1992). Thus, the TABC al- lows ordinances of home -rule cities to prohibit the sale of alcoholic beverages only under limited cir- cumstances. Pursuant to section 109.31, the sale of liquor may be prohibited within residential areas only by charter. TEX.ALCO.BEV.CODE ANN. § 109.31 (Vernon 1978). Under section 109.32, the sale of beer may be prohibited within residential areas by ordinance or charter. TEX.ALCO.BEV.CODE ANN. § 109.32 (Vernon 1978). These options are still available to the City. However, in this case, the Ordinance attempts to prohibit the sale of liquor and beer in non- residential areas. An ordinance may not prohibit the sale of beer in non - residential areas or the sale of li- quor in residential or non - residential areas. See TEX.ALCO.BEV.CODE ANN. §§ 109.31 –32 (Vernon 1978). FN7. The dissent incorrectly asserts that Section 211.013 of the Local Government Code allows a home rule city to impose higher standards upon licensees and per - mittees. This conclusion is erroneous be- cause of Section 109.57(a) of the TABC. Section 109.57(a) states than an ordinance promulgated by a governmental entity may not impose stricter standards on premises or businesses of a permittee than on similar premises and businesses not required to have a license or permit. The Ordinance imposes a stricter standard than allowed by the TABC, specifically, by regulating the location of businesses required to have li- Exhibit 3 Page 7 censes or permits under the TABC in cir- cumstances not allowed by the TABC. Section 109.57(a) was by its terms enacted to exempt licensees and permittees from Section 211.013 of the Local Government Code. The application of the doctrine of ex- pressio unius est exclusio alterius further demonstrates the weakness of the dis- sent's conclusion that the City may regu- late in this instance. That doctrine provides that the inclusion of a specific limitation excludes all others. Royer v. Ritter, 531 S.W.2d 448, 449 (Tex.Civ.App.— Beaumont 1976, writ refd n.r.e.). Sections 109.31 –33 and 109.57(d) provide specific instances when a governmental entity, such as a home -rule city, may regulate the location of an alcohol related business. Thus, by expressly stating under what circum- stances a governmental entity may regu- late the location of an alcohol related business, it follows that there are no oth- er instances when a governmental entity may regulate the location of an alcohol related business. The parties do not as- sert and we can not find any applicable grant of power to governmental entities to regulate the location of the sale of al- cohol in this case. [8] Section 109.33 permits a county or city to prohibit the sale of alcoholic beverages by a dealer whose place of business is within 300 feet of a church, school, or public hospital. TEX.ALCO.BEV.CODE § 109.33(a) (Vernon Supp.1992). This option is still available to the City.FN8 However, in this case, the Ordinance at- tempts to prohibit the sale of alcoholic beverages within 300 feet of a residential area —not within 300 feet of a church, school or public hospital. FN8. In addition to regulating alcoholic beverages pursuant to sections 109.31 -33, C 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 852 S.W.2d 489 (Cite as: 852 S.W.2d 489) a city may make recommendations or protest the issuance of a permit by the Texas Alcoholic Beverage Commission. See TEX.ALCO.BEV.CODE ANN. § 11.41(a) (Vernon 1978). [9] Likewise, section 61.37 does not conflict with section 109.57. Section 61.37 states that a city secretary will merely certify whether an ordinance or charter prohibits the sale of alcoholic beverages in the area where alcoholic beverages will poten- tially be sold. TEX.ALCO.BEV.CODE ANN. § 61.37 (Vernon 1978). Under this section, certifica- tion is properly withheld only if an ordinance or charter prohibits the *494 sale of alcoholic bever- ages in a manner allowed by the TABC. See TEX.ALCO.BEV.CODE ANN. § 61.37 (Vernon 1978). We recognize the benefits of ordinances which prohibit the sale of alcoholic beverages under these circumstances. However, the express language of section 109.57 compels this court to give effect to the Legislature's clear intent —the Ordinance is preempted to the extent it conflicts with the TABC. Therefore, we reverse the judgment of the court of appeals and affirm the judgment of the trial court. Dissenting opinion by ENOCH, J., joined by HECHT and CORNYN, JJ. ENOCH, Justice, dissenting. The city of Dallas faces a severe impediment to its redevelopment efforts for a portion of its com- munity (South Dallas) that suffers disproportion- ately from poverty and crime. The Dallas Mer- chant's and Concessionaire's Association, the Texas Package Stores Association, Inc. and the five gro- cery and liquor store owners FNS who are petition- ers in this Court all readily concede that alcohol -re- lated businesses are overly concentrated in certain areas of the City of Dallas, that this concentration of such businesses causes severe problems in these areas, and that the City of Dallas adopted Ordin- ance No. 19694 to reduce this concentration and al- leviate these problems. Today the Court adopts pe- Exhibit 3 Page 8 titioners' argument that, regardless, the Legislature requires these matters to only be addressed by the Texas Alcoholic Beverage Commission in Austin, and not by the Dallas City Council. As much as we all are concerned about community restoration, I too would have joined the majority if the law re- quired this result. But, the Court's decision is not mandated by the law. Therefore I dissent. FN1. The five business owners are So- lomon Tadesse, d /b /a S & M Grocery, Nguyen Ha Lam, d /b /a M & D Liquor, Son Ngoc Nguyen, d /b /a Bingo Liquor, Yong Suk Bragdon, d /b /a K & B Grocery, and Thung Vam Tarn, d /b /a Lee's Grocery. Ordinance No. 19694 prohibits the location of businesses selling or serving alcoholic beverages within 300 feet of residentially zoned property in certain areas of the city without a special use per- mit. The issue before us is whether this limited re- striction on the location of alcohol - related busi- nesses is preempted by TEX.ALCO.BEV.CODE § 109.57(a) and (b). Section 109.57(a) provides that an ordinance "may not impose stricter standards on premises or businesses" required to be licensed un- der the Code than on similar premises or busi- nesses. (emphasis added). Section 109.57(b) states that "it is the intent of the legislature that this code shall exclusively govern the regulation of alcoholic beverages in this state, and that except as permitted by this code, a governmental entity of this state may not discriminate against a business holding a license or permit under this code." (Emphasis ad- ded.) In my view, Ordinance No. 19694 does not "impose stricter standards on alcohol - related busi- nesses or premises" within the meaning of section 109.57(a). Rather, it restricts the location of such businesses in some areas under some conditions. Nor does the ordinance attempt a "regulation of al- coholic beverages." The ordinance has nothing to do with beverages. Nor does the ordinance "discriminate" against alcohol - related businesses. It merely imposes a restriction on their location to al- C 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 852 S.W.2d 489 (Cite as: 852 S.W.2d 489) leviate community problems which petitioners con- cede such businesses cause.FN2 This Ordinance is not, on its face, inconsistent or in conflict with state law. The ordinance is a reasonable supplement to state law to address a local problem. Both should remain in effect. FN2. This is not to say that any ordinance restricting the location of alcohol - related businesses would be allowed by state law. Obviously, an ordinance that prohibited the location of such businesses within a much larger distance from residential property might have the effect of eliminating those businesses altogether. Such an ordinance would conflict with state law. But an or- dinance which is both written and applied to impose a limited restriction on location for a valid purpose does not conflict with section 109.57. Assuming for the sake of argument that "location" may be considered a type of *495 "standard" governing businesses, the law would still not mandate the outcome claimed by the Court. The Local Government Code states: If a zoning regulation adopted under this subchapter ... imposes higher standards than those required under another statute or local or- dinance or regulation, the regulation adopted un- der this subchapter controls. If the other statute or local ordinance or regulation imposes higher standards, that statute, ordinance, or regulation controls. TEX.LOC.GOV'T CODE ANN. § 211.013(a) (Vernon 1988) (emphasis added). The Court's reading of section 109.57 of the Alcoholic Beverage Code creates a direct conflict between it and section 211.013(a). 852 S.W.2d 489, 493 n. 7. Where possible, courts are to construe lan- guage used in statutes so as to harmonize all relev- ant laws, not create conflict. La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 Exhibit 3 Page 9 (Tex. 1984); State v. Standard Oil Co., 107 S.W.2d 550, 559 (Tex. 1937). Since it is possible, this court must construe the Local Government Code and the Alcoholic Beverage Code so that both provisions are given effect. Section 109.57(a) prohibits a city from impos- ing stricter standards on premises or businesses li- censed under the Alcoholic Beverage Code than are imposed on similar premises or businesses not re- quired to have a license. TEX.ALCO.BEV.CODE ANN. § 109.57(a) (Vernon 1978) (emphasis ad- ded). The Alcoholic Beverage Code defines "premises" as "the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person." TEX.ALCO.BEV.CODE ANN. § 11.49(a) (Vernon 1978). Section 11.49(a) refers only to the physical premises; it does not define "premises" to include the location of a licensed business. The Ordinance does not attempt to regu- late the physical premises. Additionally, nothing in the Ordinance addresses how the business of selling alcohol is to be conducted. The Ordinance only reg- ulates the location of the business. The Court recognizes that a city ordinance will not be held repugnant to a general law of the state "if any other reasonable construction leaving both in effect can be reached," 852 S.W.2d at 491, (citing to City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17 (Tex.1990)). Because a reasonable reading of these two statutes prevents the conflict the reasoning of the Court creates, there is no basis for restricting the City of Dallas' grant of authority to promulgate zoning regulations under sections 211.001 —.013 of the Local Government Code. The Court's holding seriously hampers the abil- ity of municipalities to combat problems associated with the sale of alcohol. The City of Dallas did not seek to prohibit the sale of alcohol, merely to dis- perse the locations for its sale in order to achieve a reduction in the problems associated with the sale © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 852 S.W.2d 489 (Cite as: 852 S.W.2d 489) of alcohol such as increased crime, drinking on premises, litter, loitering, public intoxication, urin- ating in public and harassment of children and eld- erly residents.PN3 As petitioners admit, if cities cannot restrict the location of alcohol - related busi- nesses, then only the Texas Alcoholic Beverage Commission can, in the course of granting licenses to businesses. Yet it would be virtually impossible for the Commission to obtain sufficient information in licensing proceedings to determine whether, how and where to impose such restrictions in the dozens of cities where they might be used. Petitioners ad- mit that the Commission has not undertaken this re- sponsibility to date, and it is farfetched to think the Commission would even try. The suggestion that the Legislature has decided that the Commission should address the local problems involved here in- stead of home -rule cities is most unlikely. Only those local planning, zoning and legislative bodies have, or can be expected to have, a pulse on the particular land use needs of their jurisdiction. FN3. Several community leaders in the South Dallas /Fair Park area testified that these problems were exacerbated by the excessive concentration of alcohol related businesses in the area. *496 I agree with the Court that "if the Legis- lature chooses to preempt a subject matter encom- passed by the broad powers of a home -rule city, it must do so with unmistakable clarity." 852 S.W.2d at 491. Whatever may be said of section 109.57, it cannot seriously be argued that the statute makes unmistakably clear that the Legislature has preemp- ted the City of Dallas from exercising its broad zoning powers to improve living conditions within its borders. Preemption is even less likely when one considers the result. I would affirm the judgment of the court of ap- peals, thus I respectfully dissent. HECHT and CORNYN, JJ., join in this dissenting opinion. Tex., 1993. Dallas Merchant's City of Dallas 852 S.W.2d 489 Exhibit 3 Page 10 and Concessionaire's Ass'n v. END OF DOCUMENT © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Exhibit 4 OCCUPATION TAXES 1.04 Exhibit 4 Example Code Language from City of Arlington, TX Section 1.04 Restriction on Locations of Places of Business A. The sale of alcoholic beverages is not permitted within three hundred feet (300') of: 1. a church, public school, or public hospital; or, 2. a private school that offers a course of instruction for students in one or more grades from kindergarten through grade 12 and which has more than 100 students enrolled and attending courses at the location in question. B. The sale of alcoholic beverages is not permitted within three hundred feet (300') of a "day -care center" or a "child -care facility" as those terms are defined by Section 42.002 of the Texas Human Resources Code. This provision only applies to a place of business selling alcoholic beverages pursuant to a permit issued by the Texas Alcoholic Beverage Commission ( "TABC ") under Chapter 25, 28, 32, 69 or 74 of the Tex. Alco. Bev. Code which does not also hold a food and beverage certificate from the TABC. C. The measurement of the distance between the place of business where alcoholic beverages are sold and a church or public hospital shall be along the property lines of the street fronts and from front door to front door, and in a direct line across intersections. D. The measurement of the distance between the place of business where alcoholic beverages are sold and a public or private school shall be: 1. in a direct line from the property line of the public or private school to the property line of the place of business, and in a direct line across intersections; or, 2. if the place of business is located on or above the fifth story of a multistory building, in a direct line from the property line of the public or private school to the property line of the place of business, and in a direct line across intersections, and vertically up the building at the property line to the base of the floor on which the place of business is located. E. The measurement of the distance between the place of business where alcoholic beverages are sold and a day -care center or a child -care facility shall be calculated in the same manner as used for a public or private school, with the following ARTICLE I - 2 (Amend Ord 14 -006, 1/21/14) Exhibit 4 OCCUPATION TAXES 1.04 exceptions (in which event the place of business in question is exempted from the distance requirements): 1. the place of business selling alcoholic beverages and the day -care center or child -care facility are located on different stories of a multistory building; or 2. the place of business selling alcoholic beverages and the day -care center or child -care facility are located in separate buildings and either the place of business selling alcoholic beverages or the day -care center or child -care facility is located on the second story or higher of a multistory building. F. Variance for Alcohol Sales 1. The City Council may allow a variance to this section if it determines that the enforcement of the regulation in a particular instance is not in the best interests of the public, constitutes waste or inefficient use of land or other resources, creates an undue hardship on the applicant for a license or permit, does not serve its intended purpose, or is not effective or necessary, or that a previous permit was issued for the premises in error and enforcement of the regulation would be inequitable, or for any other reason the City Council determines, after consideration of the health, safety and welfare of the public and the equities of the situation, that the variance is in the best interest of the community. 2. No variance may be granted under this subsection except after a public hearing for which notice has been given. Notice of a request for a variance from this subsection shall be given to owners of property within three hundred feet (300') of the business. The notice area for a variance request relating to a church or public hospital shall be measured in a direct line from the front door of the place of business. The notice area for a variance request relating to a public or private school shall be measured in a direct line from the property line of the place of business. The notice shall be sent via regular United States mail not less than ten (10) days before the date set for hearing, to all such owners who have rendered their property for City taxes as the ownership appears on the last approved City tax roll. 3. The City Council may assess a reasonable fee for the administrative costs associated with processing a variance request under this subsection. (Amend Ord 14 -006, 1/21/14) ARTICLE I - 3 (Amend Ord 14 -006, 1/21/14) Exhibit 4 OCCUPATION TAXES 1.06 Section 1.06 Scope of Ordinance This ordinance shall be and is hereby declared to be cumulative of all other ordinances of the City of Arlington levying and assessing fees and shall not operate to repeal or affect any such ordinance. Section 1.07 Consumption of Alcoholic Beverages Near Homeless Shelter or Substance Abuse Treatment Center A. The possession of an open container or the consumption of an alcoholic beverage is prohibited on a public street, public alley, or public sidewalk within 1,000 feet of the property line of a homeless shelter that is located outside of the central business district. B. The possession of an open container or the consumption of an alcoholic beverage is prohibited on a public street, public alley, or public sidewalk within 1,000 feet of the property line of a substance abuse treatment center that is located outside of the central business district. C. "Central business district" means all property located in the "DN Overlay District" or the -DB District". D. The City Council may allow an exception to this section for special temporary events. (Amend Ord 14-006, 1/21/14) Section 1.08 Violations of Ordinance A person, firm, corporation or association of persons subject to the licensing or reporting provisions of this chapter who sells an alcoholic beverage without having paid the fee herein levied commits a misdemeanor punishable by a fine of not less than $ 10.00 nor more than $200.00. In addition, the City Secretary shall report such failure to pay to the Texas Alcoholic Beverages Commission. (Amend Ord 14-006, 1/21/14) ARTICLE I - 5 (Amend Ord 14-006, 1/21/14) City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 14 -0601, Version: 1 Agenda Information Sheet SUBJECT Deliberations regarding Real Property - Under Texas Government Code Section 551.072; and Consultation with Attorneys - Under Texas Government Code Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests located in the W. Roark Survey, Abstract No. 1087, J. Severe Survey, Abstract 1164, B.B.B. & C.R.R. Co. Survey, Abstract No. 196 and the J. W. Withers Survey, Abstract No. 1343, all in Denton County, Texas, generally located along a line running west to east, commencing at U.S. Highway 377 adjacent to the Fort Worth Drive Substation and continuing to the west right of way line of F. M. 1830 City of Denton, Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or 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. (Denton Municipal Electric Fort Worth T1 Addition Expansion, Denton Municipal Electric Fort Worth Drive and FM 1830 Distribution, and Hickory Creek Detention Facility projects: Burch Family Farms Ltd.)[ID 14 -0603] City of Denton Page 1 of 1 Printed on 10/2/2014 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 14 -0562, Version: 1 Legislation Text Agenda Information Sheet SUBJECT 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 vested rights; impacts of federal and state law and regulations; impacts of gas well drilling upon protected uses and vice - versa; moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance; settlement matters concerning gas well drilling in the City; surface development issues involving surface and mineral estates; and legal matters associated with a citizen's initiative regarding hydraulic fracturing where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. City of Denton Page 1 of 1 Printed on 10/2/2014 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 14 -0596, Version: 1 Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code, Section 551.071 Discuss, deliberate, and receive information from the City's attorneys pertaining to sanitary sewer overflows and resulting enforcement action, and provide the City's attorneys with direction, 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 or legal proceedings. City of Denton Page 1 of 1 Printed on 10/2/2014 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 14 -0458, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Presentation of an award from the Texas Department of Transportation Division to the City of Denton and the Convention and Visitors Bureau. City of Denton Page 1 of 1 Printed on 10/2/2014 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 14 -0544, Version: 1 Agenda Information Sheet SUBJECT Joy Comes to Denton Day City of Denton Page 1 of 1 Printed on 10/2/2014 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO Legislation Text File #: ID 14 -0593, Version: 1 Agenda Information Sheet SUBJECT Fire Prevention Week City of Denton Page 1 of 1 Printed on 10/2/2014 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 14 -0595, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Goodwill Industries of Fort Worth Helping People with Disabilities Day City of Denton Page 1 of 1 Printed on 10/2/2014 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 14 -0609, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Receive a report from Bill Coville regarding restrictions on cutting trees. City of Denton Page 1 of 1 Printed on 10/2/2014 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 14 -0579, Version: 1 DEPARTMENT: CM/ ACM: Date: Legal Anita Burgess October 7, 2014 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas, authorizing the City Manager to execute a third amendment to a contract for professional legal services with Constangy, Brooks and Smith relating to litigation styled Deborah Shaklee v. City of Denton , Cause No. 2013 - 20132 -158; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND Constangy, Brooks and Smith have been providing legal services to the City of Denton in the case of Deborah Shaklee v. City of Denton since August 2012. This case recently settled, and we now have the close -out invoice from the law firm. It is necessary to amend the Contract for Professional Legal Services for Constangy, Brooks and Smith, as expenditures have exceeded preliminary estimates. The amendment contains a new cost limit intended to cover the costs associated with the mediation and settlement of the case. FISCAL INFORMATION The original agreement set legal fees in this matter at $100,000. The agreement would amend the contract for a total of $112,000. EXHIBITS 1. Ordinance and Agreement. Respectfully submitted: Anita Burgess City Attorney Prepared by: John Knight Deputy City Attorney City of Denton Page 1 of 1 Printed on 10/2/2014 s:Alegal \our documents \ordinances \14 \constangy third amendment ordinan cc. doe ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A THIRD AMENDMENT TO A CONTRACT FOR PROFESSIONAL LEGAL SERVICES WITH CONSTANGY, BROOKS AND SMITH RELATING TO LITIGATION STYLED DEBORAH SHAKLEE V. CITY Or DENTON, CAUSE NO. 2013 - 20132 -158; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it necessary, appropriate, and in the public interest to engage Constangy, Brooks and Smith to provide professional legal services relating to litigation styled Deborah Shaklee v. City (?f Denton, Cause No. 2013- 20132 -158; and WHEREAS, City staff has reported to the City Council that there is a substantial need for the hereinabove described professional services, and that limited City staff cannot adequately perform the legal services with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a city may not select a provider of professional services on the basis of competitive bids, but must select the provider of professional services on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and the City Council hereby finds and concludes that Constangy, Brooks and Smith are appropriately qualified under the provisions of the law to be retained as outside legal counsel for the City; and WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional legal services, as set forth in the Third Amendment to Contract for Professional Legal Services; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations in the preamble are true and correct and are incorporated herewith as part of this ordinance. SECTION 2. The City Manager is hereby authorized to execute a Third Amendment to Contract for Professional Legal Services with Constangy, Brooks and Smith relating to litigation styled Deborah Shaklee v. City of Denlon, Cause No. 2013 - 20132 -158, in substantially the form of the Third Amendment to Contract for Professional Legal Services attached hereto and incorporated herein by reference. SECTION 3. The award of this Agreement is on the basis of the demonstrated competence and qualifications of Constangy, Brooks and Smith and the ability of Constangy, Brooks and Smith to perform the professional legal services needed by the City for a fair and reasonable price. s:Alegal \our documents \ordinances\14 \constangy third amendment ordinance.doc SECTION 4. The expenditure of funds as provided in the attached Third Amendment to Contract for Professional Legal Services is hereby authorized, and the previous expenditures regarding this litigation are ratified and approved. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 2 CHRIS WATTS, MAYOR .2014. s:Alegal \our documents \contracts \14 \constangy third amendment - shaklce.doc STATE OF TEXAS § COUNTY OF DENTON § THIRD AMENDMENT TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES THIS SECOND AMENDMENT TO THAT CONTRACT made and entered into the 9t" day of September, 2013, by and between Constangy, Brooks & Smith, 1201 Elm Street, Suite 2550, Dallas, Texas 75270, hereinafter referred to as "Consultant," and the City of Denton, Texas, a Texas Municipal Corporation, 215 East McKinney, Denton, Texas 76201, hereinafter referred to as "City," for professional legal services regarding a complaint filed with the U.S. Equal Employment Opportunity Commission by Deborah Shaklee. WITNESSETH SECTION 1. Paragraph C of Section 3 "Compensation and Method of Payment" of the Base Contract is hereby amended to read as follows: C. Consultant estimates and City agrees that all charges for the legal services hereunder, including reasonable out -of- pocket expenses, shall not exceed One Hundred Thousand Dollars ($112,000.00), and Consultant agrees to notify City and seek a modification of the Agreement should the total fees exceed such amount. It is understood and agreed that the course of litigation is difficult to predict and that modification to exceed the total fee amount may be required. SECTION 2. Save and except as amended hereby, all the remaining sections, paragraphs, sentences, clauses, and phrases of the Base Contract shall remain in full force and effect. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Third Amendment to be executed by its duly authorized City Manager; and Consultant has executed on this the day of , 2014. CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY i s.Ucgal \our documents \contracts \14 \constangy third amendment - shaklee.doc APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY A'T'TORNEY BY: �p CONSTANCY, BROOKS & SMITH BY: _ MICH EL MASLANKA Page 2 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0582, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. Date: October 7, 2014 SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of the Geezerpalooza music event held on Industrial Street and sponsored by the Geezerpalooza Committee. Live music will be played on the 100 block of Industrial Street on Sunday, October 19, 2014, from noon to 9 p.m. An exception is specifically requested for an increase in sound levels from 70 to 75 decibels and for amplified sound on a Sunday. Staff recommends approval of request. BACKGROUND The Geezerpalooza event will have live "oldies" music and other activities for the attendees to enjoy. The event will benefit the Denton Salvation Army. The event will be held in the middle of the street at the 100 block of Industrial Street, between Hickory and Mulberry streets, which is City property. Event organizers expect approximately 500 attendees. PRIOR ACTION/REVIEW Previously, the City Council has approved requests for exceptions to the noise ordinance increasing decibels from 70 to 75 and an extension of hours for amplified sound for the events held on Industrial Street. EXHIBITS Letter of Request Respectfully submitted: Emerson Vorel, Director Parks and Recreation Department Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 1 of 2 Printed on 10/2/2014 File M ID 14 -0582, Version: 1 City of Denton Page 2 of 2 Printed on 10/2/2014 h rvvm d by I cx:ls i''I Exhibit 1 Geezerpalooza Re: Request for noise exception for outdoor community musical festival To Whom It May Concern, We are requesting a noise exception and increase in DBA to 75 for an outdoor community musical festival, benefiting the Denton Salvation Army. Date: October 19, 2014 Time: Noon to 9:00 Location: Dan's Silverleaf /Industrial Street Activities: Music and community booths Thank you for your consideration, Geezerpalooza Committee Randy Robinson, President 2019 Destin Drive Denton, Texas 76205 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 14 -0583, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM/ ACM: John Cabrales, Jr. Date: October 7, 2014 SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of the Get Out the Vote rally sponsored by the Denton Drilling Awareness and the Pass the Ban groups. Live music will be played in Quakertown Park, located at 321 E. McKinney Street, on Monday, October 20, 2014, from 7 p.m. to 9 p.m. An exception is specifically requested to increase sound levels from 70 to 75 decibels. Staff recommends approval of request. BACKGROUND This first time event, hosted by the Denton Drilling Awareness and the Pass the Ban group. They will conduct a Get Out the Vote rally and concert featuring Brave Combo and guest speakers. The event organizer, Ed Soph, anticipates 200 -300 in attendance. PRIOR ACTION/REVIEW Previously, City Council has approved requests for exceptions to the noise ordinance increasing decibels from 70 to 75 for amplified sound during events held in Quakertown Park. EXHIBITS Letter of Request Respectfully submitted: Emerson Vorel, Director Parks and Recreation Department Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 1 of 2 Printed on 10/2/2014 File M ID 14 -0583, Version: 1 City of Denton Page 2 of 2 Printed on 10/2/2014 h rvvm d by I cx:ls i''I Exhibit I 1620 Victoria Drive IDenton, Texas 76209 940.383.4693 / esoph@chuter.net September 5, 2014 RE: Request for noise ordinance exception Dear Mrs. McLeod: Thank you for your assistance, Sincerely, Denton Drilling Awareness Group City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0584, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. Date: October 7, 2014 SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of amplified sound during the Sigma Chi Fraternity 23 rd annual Sigma Chi Fight Night. The event will be located in the parking lot behind Lucky Lou's located at 1207 W. Hickory Street beginning at 6 p.m. and concluding at midnight on Thursday, October 23, 2014. This request is for an extension of hours for amplified sound from 10 p.m. to midnight. Staff recommends approving request. BACKGROUND The Sigma Chi Fight Night, an amateur boxing event, had been held indoors but due to the growing attendance it was moved outdoors behind Lucky Lou's. Between bouts there will be dance performances, step shows, and after the last bout, a performance by a hip -hop style artist. The event organizers anticipate 1,000 to 1,500 attendees. The proceeds will be donated to the Huntsman Cancer Research Institute and the UNT Kristin Farmer Autism Center. Last year, the event organizers reported donations of $6,000 to organizations. The Sigma Chi fraternity is working with surrounding apartment complexes and businesses to make the event community friendly. RECOMMENDATION Staff recommends approving the noise exception request. This event will be held in the parking lot behind Lucky Lou's. Council has previously approved event requests for exceptions to the noise ordinance at this location. EXHIBITS Letter of Request Respectfully submitted: City of Denton Page 1 of 2 Printed on 10/2/2014 File #: ID 14 -0584, Version: 1 Emerson Vorel, Director Parks and Recreation Department Prepared by: Janie McLeod Community Events Coordinator City of Denton Page 2 of 2 Printed on 10/2/2014 Exhibit 1 Aaron Presley Fight Night Chairman 1126 Ave. A #112 Denton, TX 76201 To whom it may concern, 1 am writing today to request an exception to the noise ordinance for a philanthropy event put on by the Sigma Chi Fraternity. We are seeking approval to use up to 70 decibels at our outdoor event. This year will mark our 231d annual Sigma Chi Fight Night. The event is centered on amateur boxing bouts monitored by USA Boxing Association. In between bouts, there will be giveaways, dance performances, and step shows. At the closing of the last fight, there will be a hip -hop style artist performing in the ring for the attendees. In the past the event was held indoors but has since been forced outside due to the ever growing crowd. We are expecting between 1000 -1500 guests this year. The event is to take place on October 23, 2014 in the back parking lot of Lucky Lou's. The venue is a gated parking lot surrounded by the Fry St. bars and taverns. The doors to the event will open no sooner than 6:OOpm, and the venue will close no later than 12:OOpm. As mentioned earlier, this is a philanthropy event in which all proceeds will be donated to the Huntsman Cancer Research Institute and the UNT Kristin Farmer Autism Center. Revenue will be derived from sponsorships, ticket sales, and donations. In the past years, we have averaged roughly $11,000 in revenue, while being able to donate at least $6,000 of that every year. The Sigma Chi Fraternity is working closely with UCentre Fry St. Apartments, Lucky Lou's Bar, and Fry St. Tavern to make this event community friendly. All speakers will be angled away from the residential apartments and be set not to exceed the decibel level set by the City of Denton. Recycling efforts will be made on -site to alleviate the amount of landfill waste produced by guests. All trash will be collected and disposed of by 2:00am that night at the expense of the Sigma Chi Fraternity. Due to this event being hosted by a University of North Texas Fraternity, the event must be run down to the T with all rules and regulations set by the University. The Fraternity will be meeting with the LINT Police Department and Risk Management offices on a regular basis leading up to the event to assure a successful outcome. If you have any questions regarding Sigma Chi Fight Night, please do not hesitate to reach out to me at aaron.m.oresley@gmail.comg or (903) 815 -5260. Best Regards, Aaron Presley C� City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 14 -0586, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: October 7, 2014 SUBJECT 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 by and between the City of Denton, Texas and CDM Smith, Inc. for engineering services relating to the final design phase of the City of Denton Pecan Creek Water Reclamation Plant Phosphorus Removal Project; authorizing the expenditure of funds therefor; providing an effective date (File 5319 in the additional amount not -to- exceed $269,240; aggregating a total not -to- exceed $354,375). The Public Utilities Board recommends approval (5 -0). FILE INFORMATION A Professional Services Agreement with CDM Smith, Inc. for engineering services relating to Phase 1 of the Phosphorus Removal Study for the City of Denton Pecan Creek Water Reclamation Plant was approved by the City Manager in the amount of $85,135 on August 6, 2013. The phosphorus removal is required for Texas Commission on Environmental Quality permitting. This First Amendment will encompass the final design phase which will include the completion of plans and specifications for bidding the phosphorus removal project. Additional project management services will be negotiated at a later date. A complete description of the project is included in the attached public Utilities board agenda information sheet (Exhibit 1). PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On September 22, 2014, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve a First Amendment to a Professional Services Agreement between the City of Denton and CDM Smith, Inc. in the amount not -to- exceed $269,240 for a total contract amount not -to- exceed $354,375. PRINCIPAL PLACE OF BUSINESS CDM Smith, Inc. Dallas, TX City of Denton Page 1 of 2 Printed on 10/2/2014 File #: ID 14 -0586, Version: 1 ESTIMATED SCHEDULE OF PROJECT The final design phase is estimated to be completed by March 30, 2015. FISCAL INFORMATION The First Amendment will be funded from project account 640241544.1365.10100. The additional amount of $269,240 will be added to Purchase Order 164196. EXHIBITS Exhibit l: Public Utilities Board Agenda Sheet Exhibit 2: Public Utilities Board Draft Minutes Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: P.S. Arora at 349 -7189. City of Denton Page 2 of 2 Printed on 10/2/2014 EXHIBIT 1 PUBLIC UTILITIES BOARD AGENDA ITEM # AGENDA INFORMATION SHEET AGENDA DATE: September 22, 2014 DEPARTMENT: Utility Administration ACM: Howard Martin, 349 -8232 lAr. °" SUBJECT Consider recommending approval of the professional engineering services proposal from CDM Smith for Final Design - Phosphorus Removal, Tasks I, II & V to meet the Texas Commission on Environmental Quality discharge permit requirements for the Pecan Creek Water Reclamation Plant in the amount of $269,240. BACKGROUND The PUB and City Council had approved the Preliminary Design contract with CDM Smith for evaluation of alternatives for phosphorus removal to 0.5 milligram per liter per the Texas Commission on Environmental Quality (TCEQ) discharge permit requirements. The following tasks were completed for the alternative evaluations: 1. Evaluate viable phosphorus removal alternatives and recommend the most beneficial and practical solution for the PCWRP. Evaluated options include: a. Biological phosphorus removal — activated sludge processes that have been successfully used for similar applications. b. Chemical phosphorus removal — precipitation of phosphorus and removal in the clarification process, activated sludge process, and filtration process. c. Combinations of these methods to optimize removal based on site - specific considerations at the PCWRP. 2. Assess the impacts of phosphorus removal on other treatment processes at the PCWRP, including an evaluation of the effects on the following: a. Thickening and dewatering processes b. Sidestream phosphorus treatment c. Anaerobic Digestion and Biogas production EXHIBIT 1 d. Composting 3. Address phosphorus issues after anaerobic digestion, such as utilizing removed phosphorus as a fertilizer 4. Assess impact of phosphorus removal on future nitrogen removal requirements CDM completed the alternative evaluations per the tasks outlined above. Based on present worth analysis of alternates evaluated for 20 -year period that included initial capital costs and yearly operation & maintenance costs, the chemical phosphorus removal alternate was determined to be the most favorable. The CDM preliminary design report is attached as Exhibit 2. For the final design, CDM has submitted the Scope of Work and Cost Proposal for the chemical phosphorus removal option (Exhibit 3). CDM's proposal includes Tasks I & II in Phase 1, and Task V- Project Management, for completion of final plans and specifications. In addition the CDM Scope of Work and Cost Proposal include Phase 2 services during construction. Staff is not seeking approval of consultant services during construction at this time. The Phase 2 services will be finalized during the final design process and staff will bring this for approval at a later date. In the final design phase CDM will produce final plans and specifications for bidding the project, and provide opinion of construction cost estimate. The following shows the consultant effort for producing the final plans: Cover /title sheet with location plan Plan index sheet Process flow diagram sheets Design criteria sheets Civil /Site legend and abbreviation sheets Site plan sheets Yard piping plan sheets General details of civil /site construction sheets Structural legend and abbreviation sheets Structural plan sheets Structural sectional sheets General details of structural construction sheets Architectural treatment sheets (if required) Process /mechanical legend and abbreviation sheets Process & instrumentation diagram sheets Process /mechanical plan sheets Process /mechanical sectional sheets General details of process /mechanical construction Electrical /instrumentation legend and abbreviation sheets Electrical one -line diagram sheets Instrumentation control system architecture sheets Electrical plan sheets EXHIBIT 1 The above tasks were determined in discussions with the city staff. The consultant fee for the Task I, II and V is estimated at $269,240. The wastewater budget currently includes $5 million for the phosphorus upgrade. OPTIONS 1. Recommend approval of the scope of work and cost proposal from CDM Smith 2. Recommend denial of the scope of work and cost proposal from CDM Smith RECOMMENDATION Staff recommends approval of the scope of work and cost proposal from CDM Smith. PRIOR ACTION /REVIEW (Council, Boards, Commissions) PUB: Approved the Preliminary Design contract with CDM Smith on July 23, 2013 DATE SCHEDULED FOR COUNCIL APPROVAL October 7, 2014 FISCAL INFORMATION $1 million is included in the FY2013 budget for the final design of the phosphorus removal project. BID INFORMATION Not Applicable EXHIBITS 1. Map 2. Preliminary Design Report 3. CDM Smith Scope of Work and Cost Proposal 4. FY2013 Detail Sheet Respectfully submitted: Jim Coulter, General Manager Water Utilities EXHIBIT 1 Prepared by: f-�55" P. S. Arora, RE Assistant Director Wastewater EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD September 22, 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, September 22, 2014 at 9:02 a.m. in the Service Center Training Room, City of Denton Service Center, 901A Texas Street, Denton, Texas. Present: Chairman Dick Smith, Secretary Randy Robinson, Phil Gallivan, Lilia Bynum and Charles Jackson Ex Officio Members: Howard Martin, ACM Utilities Absent: George Campbell City Manager, Vice Chair Billy Cheek and Barbara Russell OPEN MEETING: ITEMS FOR INDIVIDUAL CONSIDERATION: 7. Receive a report, hold a discussion and give staff direction regarding the professional engineering services proposal from CDM Smith for Final Design - Phosphorus Removal, Tasks I, II & V to meet the Texas Commission on Environmental Quality discharge permit requirements for the Pecan Creek Water Reclamation Plant in the amount of $269,240. P.S. Arora, Division Manager Wastewater Administration, made the presentation. Arora stated that in June 2013 TCEQ required a discharge permit for Pecan Creek WRP that included a Phosphorus limit of 0.5 mg /l. This Board approved the preliminary design contract with CDM Smith for evaluation of alternatives last year. CDM and staff evaluated viable phosphorus removal alternatives and recommended the most beneficial and practical solution for the PCWRP. The alternatives considered were biological phosphorus removal, chemical phosphorus removal and combinations of these methods to optimize removal Initial capital costs for chemical phosphorus removal are $1,730,000. Capital cost for biological phosphorus removal is $6,567,000 (additional costs not included will be flow split related between north and south plants). The biological phosphorus removal with sidestream phosphorus recovery is at $14,098,000. The cost for 20 years of removal is: chemical phosphorus removal: $27,781,000, biological phosphorus removal: $29,485,000 (6 % >) and biological phosphorus removal with sidestream phosphorus recovery: $30,896,000 (11% >). Staff has decided to go with chemical phosphorus removal. There are upcoming things for the future including a model but currently there is a timeline to meet which is June 2016. The chemical removal is a lower capital costs and very reliable. If at a later date staff would like to change the process it is possible. Draft Minutes of the Public Utilities 13oarcVX4f J1J&JT 2 September 22, 2014 Page 2 of 2 Arora stated there is someone in water administration that is qualified to do the inspections. That person will be utilized half time. The tasks remaining for CDM Smith costs $269,240. There are $5 million included in the FY 2015 budget. Gallivan stated he was impressed with the number of dollars that the City has to invest in the process. He wondered what other cities that can't afford $27 million. Arora stated the $27 million is for 20 years, the initial cost is much smaller. Gallivan then asked if other cities that have their own wastewater treatment will have to go down to the .05 mg /1. Arora answered what TCEQ has done working through EPA is if you have a plant that is more than 3 MGD then you have to go down to .05 mg /l. If it is less than 3 MGD it is .01 mg/l. It makes a difference. There was then some discussion what happens to the phosphorus that is removed. Robinson stated that trying to guess the chemical cost over 20 years is difficult with the fluctuation of prices. Is there more risk for price increase on the chemical side versus biological. Arora answered there is some risk on the chemical side but about 70% of the chemical is being applied. If a better technology is available in the future they can use it. Smith asked if the harvesting of the phosphorus is only in the biological process. What happens to the sludge. Arora there will always be sludge, it is run through the digesters. The sludge has high phosphorus content which is good for compost. Motion was made to approve item 7 by Board Member Gallivan with the second by Board Member Robinson. The vote was 5 -0 approved. Adjournment 9:45 a.m. EXHIBIT 3 ORDINANCE NO. 2014- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST AMENDMENT TO A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND CDM SMITH, INC., FOR ENGINEERING SERVICES RELATING TO THE FINAL DESIGN PHASE OF THE CITY OF DENTON PECAN CREEK WATER RECLAMATION PLANT PHOSPHORUS REMOVAL PROJECT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; PROVIDING AN EFFECTIVE DATE (FILE 5319 IN THE ADDITIONAL AMOUNT NOT -TO- EXCEED $269,240; AGGREGATING A TOTAL NOT -TO- EXCEED $354,375). WHEREAS, the City Council deems it necessary and appropriate and in the public interest to continue to engage the engineering firm of CDM Smith, Inc., a Texas Corporation, located in Houston, Texas to provide the City with professional engineering services pertaining to the final design phase of the Pecan Creek Water Reclamation Plant Phosphorous Removal Project; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the hereinabove described professional services by the City of Denton, and that limited City staff cannot adequately perform the specialized engineering and other professional services and tasks, with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a city may not select a provider of professional services on the basis of competitive bids, but must select the provider of professional services on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, the City Council hereby finds and concludes that CDM Smith, Inc. is appropriately qualified under the provisions of the law, to be retained as an engineering firm for the City, respecting this engagement; and WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional services, as set forth in the "First Amendment to Agreement for Professional Engineering Services;" NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations contained in the preamble hereto are true and correct and are incorporated herewith as a part of this Ordinance. SECTION 2. The City Manager is hereby authorized to execute a "First Amendment to Agreement for Professional Engineering Services" (the "First Amendment ") with the firm of CDM Smith, Inc., in the additional amount of not -to- exceed $269,240, for professional engineering services pertaining to the interests of the City as hereinabove described, in substantially the form of the First Amendment which is attached hereto as Exhibit "A" which is incorporated herewith by reference. 1 EXHIBIT 3 SECTION 3. The award of this First Amendment is on the basis of the demonstrated competence and qualifications of the firm of CDM Smith, Inc., and their ability to perform the professional engineering services needed by the City for a fair and reasonable price. SECTION 4. The expenditure of funds as provided for in the attached First Amendment is hereby authorized. SECTION 5. This ordinance shall become effective upon its passage and approval. PASSED AND APPROVED this the day of 12014. ATTEST: JENNIFER WALTERS, CITY SECRETARY ma APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY p By: 2 CHRIS WATTS, MAYOR THE STATE OF TEXAS § COUNTY OF DENTON § FIRST AMENDMENT TO CONTRACT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND CDM SMITH, INC. [CONTRACT #53191 THIS FIRST AMENDMENT TO CONTRACT (hereafter the "First Amendment ") to that certain Contract by and between the City of Denton, Texas and CDM Smith, Inc. (hereafter the "Agreement ") in the original Professional Services Agreement, which were heretofore executed on 06th of August, 2013, and was approved by the Denton City Council and subsequently executed by the Denton City Manager or his duly authorized designee; and said Agreements were heretofore entered into by and between the City of Denton, Texas, a Texas Municipal Corporation with its offices at 215 East McKinney Street, Denton, Texas 76201 (hereafter the "CITY "); and the firm of CDM Smith, Inc. (hereafter "CDM Smith ") with its offices at 3050 Post Oak Blvd, Houston, Texas 77056; and The original Agreements provided for CDM Smith's services related to the Pecan Creek Water Reclamation Plant Phosphorus Removal Project as is contained in Contract #5319 (Exhibit A). The initial agreement for the Basic Services — Phase 1 (Exhibit A), was approved on August 6, 2013, in the not -to- exceed amount of $85,135. The City and CDM Smith further specified and agreed within Contract #5319, that additional services would be necessary to complete the project, and identified those services within Section 2.2.1 — Additional Services. NOW THEREFORE, the CITY and CDM Smith (hereafter collectively referred to as the "Parties "), in consideration of their mutual promises and covenants, as well as for other good and valuable considerations, do hereby AGREE to the following First Amendment, which amends the following terms and conditions of the said Agreements, to wit: 1. The provisions of the said Agreements are hereby amended to add the additional Agreements as follows, to wit: CDM Smith shall provide to the CITY the Additional Professional Services to complete the Project, as defined in the "Scope of Work Pecan Creek WRP Phosphorus Removal Improvements Project ". The individual tasks and deliverables are fully defined within the Scope of Work (Exhibit B). The additional professional services to complete the Project, are provided in "Exhibit B" of this First Amended Agreement, and shall become a part of the contractual requirements of Contract #5319. The total cost of these additional professional services, which include Tasks 1, II & V, shall not exceed $269,240. The total project costs shall not exceed $354,375. 2. The Parties hereto agree, that except as specifically provided for by this First Amendment, that all of the terms, covenants, conditions, agreements, rights, responsibilities, and obligations of the Parties, set forth in both the Agreements and now the First Amendment shall be, and will remain in full force and effect. IN WITNESS WHEREOF, the City of Denton, Texas and CDM Smith, Inc., have each executed this First Amendment in two (2) original counterparts, by and through their respective duly authorized representatives and officers on this the day of 2014. CITY OF DENTON, TEXAS A Texas Municipal Corporation : George Campbell, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY mm CDM Smith, Inc. A State O �cas C.�w, oration Y �. NA! lE: 4a A'a CDM SMITH REPRESENTATIVE WITNESS: Lo EXHIBIT A 1 1 City of Denton Contract # 5319 Pecan Creek Water Reclamation Plant Phosphorus Removal Project CONTRACT ##5319 PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the 6TH day of August, 2013, 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 CDM Smith, with its corporate office at 3050 Post Oak Blvd, Houston, Texas 77056 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, professional engineering services in support of the Phosphorus Remove Study for the City of Denton Pecan Creek Water Reclamation Plant (PCWRP). The project shall be completed in four (4) separate phases: Phase I - Study, Phase 2 - Detailed Design, Phase 3 — Construction, and Phase 4 — Plant Optimization and Training. Phase I — Study, shall include the following: Phosphorus Discharge Limit and Impact on Plant Processes The Phase 1 Study is to access the City's options for addressing the new phosphorus limit in the anticipated NPDES permit. The study will focus on phosphorus removal alternatives, national trends, impacts of treatment modifications, and the use of the remove phosphorus after digestion. Specific tasks include: 1. Evaluate viable phosphorus removal alternatives and recommend the most beneficial and practical solution for the PCWRP. Evaluated options include: a) Biological phosphorus removal — activated sludge processes that have been successfully used for similar applications. b) Chemical phosphorus removal — precipitation of phosphorus and removal in the clarification process, activated sludge process, and filtration process. c) Combinations of these methods to optimize removal based on site specific considerations at the PCWRP. Page 1 CADocuments and Setlings\22117251Desktop \Contract 5319 CDM Smith - Phosphounis StudyTontract 5319 - Pecan Creek WRP Phosphorus Study.doc 2. Assess the impacts of phosphorus removal on other treatment processes at the PCWRP, including an evaluation of the effects on the following: a) Thickening and dewatering processes b) Side stream phosphorus treatment c) Anaerobic Digestion and Biogas production d) Composting 3. Address phosphorus issues after anaerobic digestion, such as utilization removed phosphorus as a fertilizer. 4. Assess impact of phosphoi: Lis removal on future nitrogen removal requirements. 5. Assess feasibility of chemical addition at the Hickory Creek Lift Station to mitigate odors and begin the phosphorus precipitation process prior to entering the WRP. 6. Prepare a Draft Report to document the finding and finalize the report after incorporating the City's review comments 7. Prepare conceptual layout drawings for improvements to provide phosphorus removal. 8. Provide internal QA/QC review of Draft Report and drawings 9. Incorporate City comments on Draft Report and issue Final Report. Engineering documents are to be reviewed by City personnel following CDM Smith's in -house quality control and quality assurance procedures. City will provide CDM Smith with one consolidates set of comments on engineering documents upon completion of internal review. The draft report will be completed within 4 months (120 days) from the date of contract execution by both parties, and purchase order issuance. Page 2 CADocuments and Settings\2211725\Desktop \Contract 5319 CDtvt Smith - Phosphounis StudyTontract 5319 - Pecan Creek WRP Phosphorus Study.doc SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1.1 PHASE I - For Basic Services the total compensation shall be $85.135. 2.1.2 Progress payments for Basic Services shall be paid in the following tasks for the total compensation for the Basic Services satisfactorily completed at the end of the following tasks for Phase I of the Project: Kickoff Workshop $ 4,550 Task 1— Phosphorus Removal Alterative $13,105 Task 3 -- Impacts on Remaining Processes $ 8,905 Task 4 — Impacts on Nitrogen Removal $ 4,515 Task 5 — Hickory Creek Chem Addition $ 5,735 Task 6 — Prepare Draft Report $13,880 Task 7 — Conceptual Layouts $17,000 Task 8 — QA/QC of Report $ 4,170 Task 9 — Incorporate Comments $ 4,610 Allowable Expenses $ 3,120 Total 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for Additional Services will be negotiated prior to delivery of the stated services, to complete the entire schedule of the work plan for the project: Phase 2 — Detailed Design of Construction — fee to be negotiated at a Iater date. Phase 3 -- Construction related tasks — fee to be negotiated at a later elate. Phased 4- Plant Optimization and Training — fee to be negotiated at a later date. 2.2.2 Compensation for Additional Services of consultants, including additional structural, mechanical and electrical engineering services shall be negotiated prior to delivery of the actual service. 2.3 REIMBURSABLE EXPENSES Reimbursable Expenses are 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 $3120 without the prior written approval of the Owner. Page 3 CADocuntents and Settings \2211725\Desktop \Coiuract 5319 CDivt Smith - Phosphounis Study\Contract 5319 - Pecan Creek wRP Phosphorus Study.doc 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: City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. Attachment A -The Design Professional's Proposal, Project Schedule, and Pricing 3. Attachments B — Awarded Contractor's documentation, including W -9 form, and Conflict of Interest documentation, 4. Attachment C — Awarded Contractor's certificate of insurance documentation. This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON BY 170R IE C. CAMIIK'.11, CITY MANAGER ATTEST: lR RfidR R R WALTERS, (,11"Y' SECRETARY I BY�w ," �� R�I'`l �' l.�I AS ' � O LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Ape DESIGN _' " Ft "n Offi rl el 1 �:cn_mt�__ r . ��ltrvc (Signature) WITNESS: � CITY OF DENTON f GENERAL CONDITIONS Page 4 C:1Documents and Settings 122117251Desktop\Contract 5319 CDM Smith - Phosphoums StudylContract 5319 - Pecan Creek 1VRP Phosphonts Study.doc TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1, ARCHITECT OR ENGINEER'S RESPONSIBILITIES 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) perforated 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 die level of care and skill ordinarily exercised by members of file same profession currently practicing hr Ume same locality under similar conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Care'), The Services shall be performed as expeditiously as is consistent with the Degree of Care necessary for the orderly progress ofthe Project. Upon request ofthe Owner, time Design Professional shall submit for the Owners approval a schedule for die performance of the Services which may he adjusted as the Project proceeds, and shall include allowances for periods of time required for die Owner's 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 time Design Professional or Owner, and any adjustments to this schedule shall be mutually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 2.1 BASIC SERVICES DEFINED The Design Professional's Basic Services consist ofthose described in Sections 2.2 through 2.6 of these General Conditions and include without limitation normal structural, civil, mechanical and electrical engineering services and any other engineering services necessary to produce a complete and accurate set of Construction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement. 2.2 SCHEMATIC DESIGN PHASE 2.11 The Resign 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 Time Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and construction budget requirements, each in terms ofthe other, subject to the limitations set forth in Subsection 5.2.1. 2.23 The Design Professional shall review with the Owner alternative approaches to design and construction ofthe Project. 2,2,4 Based on the nndually agreed -upon program, schedule and construction budget requirements, the Design Professional shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. 2.2.5 The Design Professional shall submit to the Owncr a preliminary detailed estimate of Constriction Cost based on current area, volume or other unit costs and which indicates lie cost of each category of work involved in constructing the Project and establishes an elapsed time factor for the period of time from the commencement to the completion of constnnction. 23 DESIGN DEVELOPMENT PHASE 23.1 Blued on die approved Schematic Design Documents and any adjustments authorized by the Owner in die program, schedule or constriction budget, tine Design Professional shall prepare for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of die Project as to architechual, structural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. Notwithstanding Owvneds approval of the documents, Design Professional represents that the Documents and specifications will be sufficient and adequate to fulfill die purposes ofthe Project. 2.3.2 The Design Professional shall advise the Owner ofmny adjustments to due preliminary estimate of Construction Cost in a further Detailed Statement as described in Section 2.2.5. 2.4 CONSTRUCTION DOCUMENfS PHASE 2.4.1 Based on the approved Design Development Documents and any finther adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail requirements for the construction of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. 2.4.2 The Design Professional shall assist the Owner in the preparation of die necessary bidding or procurement information, bidding or procurement forms, the - Conditions ofthe contract, and the form of Agreement between the Owner and contractor. 2.43 The Design Professional shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. 2.4.4 The Design Professional shall assist the Owner ill connection with the Owvnees responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. 25 CONSTRUMONCONTRACT PRO CUREMEENl' 15.1 The Design Professional, following the Owvnees approval ofthe Construction Documents and of the latest preliminary detailed estin ite of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement method Hmat is legally applicable to the Project including without limitation, the competitive sealed bidding process. Although the Owner will consider the advice oftlne Design Professional, the award ofthe construction contract is in the sole discretion ofthe Owner. Page 5 C:1Documents and Seltings122117251Desktop \Contract 5319 CDNl Smith - Phosphounis SnudylContract 5319 - Pecan Creek WRP Phosphorus Study.doc 2,5.2 If the construction contract amount for the Project exceeds the total construction cost of the Project asset forth in die approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then tie Design Professional, at its sole cost and expense, will revise the Construction Documents as may be required by the Owner to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not exceed the total construction cost set forth in the approved Detailed Statement of Probable Construction Costs. 2.6 CONSTRUCTION PHASE - AD,llh\IMAT10N OF TILE CONSTRUCTION CONTRACT 2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the issuance to the Owner of tie final Certificate for Payment, unless extended tinder the terns of Stibseelion 83.2. 2.6.2 Tile Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionalss the administration shall also be in accordance with AIA document A201, General Conditions of the Contract for Construction, current as of the date of the Agreement as may be amended by the City of Denton special conditions, unless otherwise provided in the Agreement. For engineers the administration shall also be in accordance with tho Standard Specifications for Public %Vorks Constriction by the North Central Texas Council of Covemments, current as of tho date ofthe Agreement, unless otherwise provided in the Agreement. 2.6.3 Construction Phase duties, responsibililics and limitations of authority of the Design Professional shall not be restricted, modified or extended without written agreement of the Owner and Design Professional. 2.6.4 The Design Professional shall be a representative of mind shall advise fund consult with tie Owner (1) during construction, and (2) at due Owner's direction front time to time during the correction, or warranty period described in the Contract for Construction. T7he Design Professional shall have authority to act on behalfofthe Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written instrument. 2.6.5 The Design Professional shall observe the construction site at least one time a week, while construction is in progress, and as reasonably necessary while consinhetion is not in progress, to become familiar with the progress and quality of the work completed and to determine if the work is being performed bh a manner indicating that die work when completed will be in accordance with the Contract Documents. Design Professional shall provide Owner a written report subsequent to each on -site visit. On the basis of on -site observations the Design Professional shall keep the Owner informed of the progress and quality of the work, and shall exercise the Degree of Care and diligence in discovering and prouhptty reporting to the Owner any observable defects or deficiencies in the work of Contractor or any subcontractors. The Design Professional represents that lie will follow Degree of Care in performing all Services tinder the Agreement. The Design Professional shall promptly correct airy defective designs or specifications furnished by the Design Professional at no cost to the Owner. Tile Owner's approval, acceptance, use of or payment for all or any part of the Design Professional's Services hereunder or of tie Project itself shall in no way alter the Design Professional's obligations or the Owner's rights hereunder. 2.6.6 The Design Professional shall not have control over or charge of and shalt not be responsible for constriction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work. The Design Professional shall not be responsible for the Contractor's schedules or failure to carry out the work in accordance with the Contract Documents except insofar as such failure may result from Design Professional's negligent acts or omis- sions. The Design Professional shall not have control over or charge of acts or omissions of die Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the work, 247 The Design Professional shall at all times have access to the work wherever it is in preparation or progress. 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Design Professional. Communications by and with the Design Professional's consultants shall be through the Desigrt Professional. 2.6.9 Based on the Design Professional's observations at the site of the work and evaluations of the Contractofs Applicalions for Payment, the Design Professional shall review and certify tie amounts due the Contractor. 2.6.10 The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional 's observations at the site as provided in Subsection 2.6.5 and on the data comprising the Conlraclots Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to minor deviations fronn tie Contract Documents cor- rectable prior to completion and to specific qualifications expressed by the Design Professional. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment hu die amount certified. However, the issuance of a Certificate for Payment shall not be a representation that the Design Professional has (1) reviewed construction means, nhethods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not conform to the Contract Documents. Whenever the Design Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance with die provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. Ilowever, neither this authority of the Design Professional nor a decision made in good faith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the Design Professional to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of die work. 2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractor's Submittals such as Shop Drawings, Product Data and Samples for tie purpose of (1) determining compliance with applicable laws, statutes, ordinances and codes, and (2) determining whedier or not the work, when completed, will be in compliance with the requirements of true Contract Documents. The Design Professional shall act with such reasonable promptness to cause no delay iii the work or in the constriction of die Owner or of separate contractors, while allowing sufficient lhue in die Design Professional's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of deterining the accuracy and completeness of otherdetails such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of wihich remain tie responsibility of tie Contractor to die extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safely precautions or, unless otherwise specifically stated by the Design Professional, of construction means, methods, techniques, sequences or procedures. The Design Professional's approval of a specific item shall not indicate approval of an assembly of which the ftem is a component. When professional certification ofperforhiance characteristics Of materials, systems or equipment is required by the Contrncl Documents, die Design Professional shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by die Contract Documents, Page 6 C:\Documents and Settimigs\2211725 1DesktoplContract 5319 CDlvf Smith - Phosphounis SthndylContract 5319 - Pecan Creek WRP Phosphorus Sludy.doc 2,6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 3.1.1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents, 2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to determine the dates of Substantial Completion and Final Completion, and if requested by the Owner shall issue Certificates of Substantial and Final Completion. The Design Professional will receive and review written guarantees and related documents required by tine Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the requirements of the Contract Documents. 2,6.15 The Design Professional shall interpret and provide recommendations on matters concerning performance of the Owner and Contractor tinder the, requirements of the Contract Documents on written request of either the Owner or Contractor. The Design Professional's response to such requests shall be made with reasonable promptness and within any time limits agreed upon. 16.16 Interpretations and decisions of the Design Professional shall be consistent with tine intent of and reasonably inferable from the Contract Documents and shall N in writing or in the font of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithfid performance by both Owner slid Contractor, and shall not be liable for results or hhterpretations or decisions so rendered in good faith in accordance with all the provisions of this Agreement and in the absence of negligence. 2.6.17 The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractor relating to the execution or progress ofthe work as provided in the Contract Documents. 2.6.18 The Design Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse tie Owner for all damages caused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Agreement or diminish any of the Design Professional's obligations thereunder. 2.6.19 The Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Construction Documents during the Construction Phase. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included In Basic Services unless so identified in the Agreement or Proposal, and they shall be paid for by the Owner as provided in the Agreement, in addition to the compensation for Basic Services. The services described under Sections 3.2 and 3.4 shall only be provided if authorized or continued in writing by tie Owner. If services described under Contingent Additional Services in Section 3.3 are required due to circumstances beyond the Design Professional's control, the Design Professional shall notify the Owner in writing and shall not commence such additional services until it receives written approval from the Owner to proceed. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Design Professional shall have no obligation to provide those services. Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if they are not required due to the negligence or fault of Design Professional. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive representation at the site than is described in Subsection 2.6.5 is required, the Design Professional shall provide one or more Project Representatives to assist in carrying out such additional on -site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be compensated therefor as agreed by the Owner and Design Professional. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: 1. inconsistent with approvals or instructions previously given by the Owhher, includ big revisions made necessary by adjustments in the Owner's program or Project budget; 2, required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or 3. due to changes required as a result of the Owner's failure to render decision in a timely manner. 33.2 Providing services required because of significant changes in die Project including, but not limited to, size, quality, complexity, or (lie Owners schedule, except for services required under Subsection 2.5.2. 3.33 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and Conslnhction Change Directives. 33.4 Providing consultation concerning replacement of work damaged by fire or other cause during constriction, and famishing services required hh connection with Cie replacement of such work. 3.3.5 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 3.3.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with tie work. Page 7 C:\Documents and Settings \221172$\Desktop\Contrac15319 CDlvf Smith - Phosphounis Study\Contracl 5319 - Pecan Creek 1VRP Phosphorus Study.doc 3.3.7 Providing services in connection with apublic hearing, arbitration proceeding or legal proceeding except where the Design Professional is party thereto. 3.3.8 Providing services in addition to Urose required by Article 2 for preparing documents for alternate, separate or sequential bids or providing services in connection with bidding or constriction prior to the completion ofthe Constmction Documents Phase, 3.3.9 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission ofthe Design Professional sba' +ll be performed by ttre Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation r,hte thc .Desl,gti Professional tier the Basic Services. The intervening or concurrent negligence ofthe Owner shall not limit the Design Professional's obligations under this Subsection 3.3.9. 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Providing financial feasibility or ogler special studies. 3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sites. 3.43 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project 3.4.4 Providing services relative to fixture facilities, systems and equipment, 3.4.5 Providing services to investigate existing conditions or facilities or to make nmeasured drawings thereof. 3.4.6 Providing services to verify (lie accuracy of drawings or other information furnished by Vie Owner. 3.4.7 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner. 3.4,8 Providing detailed quantity surveys or inventories of material, equipment and labor. 3 .4.9 Providing analyses of operating and maintenance costs. 3.4.10 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance and consultation during operation. 3.4.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of fumitare, fiimishings and related equipment. 3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate for Payment and expiration ofthe Warranty period of the Contract for Construction, 3.4.15 Providing services of consultants for other than architectural, civil, structural, mechanical and electrical engineering portions ofthe Project provided as apart of Basic Services. 3.4.16 Providing any other services not otherwise included hi this Agreement or not customarily furnished in accordance with generally accepted architectural practice. 3.4.17 Preparing a set of reproducible record drawings in addition to those required by Subsection 2.6.19, slmowing significant changes in the work made during con- struction based on marked -up prints, drawings and othcrdata furnished by Vie C. "ontractor to the Design Professional. 3.4.18 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caaiscd as na ca sraiwtcd in wholc or iii pat due to the negli,goit aael or oniksior oftlte Design Professional shall be performed by the Design Professional as a part ofthe Basic Set vivcs kinder Una; Agro niciat with no additional, compensation Ame, and beyond the compensation due die Design Professional for the Basic Services. The interveailog or concturm negligcnc�c of the Owner shall not limit the 1icMgn Professional's obligations under this Subsection 3.4.18. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 The Owner shall consult will die Design Professional regarding requirements for the Project, including (1) die Owner's objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more speci- fically described in Subsection 2.2.1. 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, die Owner's other costs and reasonable contingencies related to all of these costs. 4.3 If requested by the Design Professional, die Owner shall famish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall render decisions in a tuumely manner pertaining to documents submitted by the Design Professional in order to avoid unreasonable delay in The orderly and sequential progress of the Design Professional's services. Page 8 Mocuments and Seltings\2211725\DesktoplContracl $319 CD vl Smith - Phosphounus StudylContract 5319 - Pecan Creek WRP Phosphorus Study.doc 4,5 'Where, applicable, the Owner shall tannish sorveys deseribing physical clniu rua terist es, legal hmitntions and utility locutions for' life site ofdic Project„ auud a %witten legal dcscd1ition of the site, "fire surveys and legal hirbullation shall include, as cipplicable, grades and lines of sixcels, alleys, pavements and adjoining property and strirctlims; o4jacent drainage; rrghtc -o9 -way„ aonirig, deed residclians, boundaries and corrlouurs of the site; IOCAflarls, dinensious and ncccssa qT dada pettadning to esislhig buildings, other improvements and iris; and information room rang. available ulilrty Rrvfces atnd fines, both pubiio umd priviute, above and below trade, including inverts said depths. All tile: hifonnation oil the survey shtall be refcrenecd to a project bcnchmark. 4.6 Where applicable, the Owner shall firmish the services of geotechnieal engineers where such services are requested by the Msign professional. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of ha -ardoais inalciials, ground corrosion and re- sistivity tests, including necessary operations for anticipating sub -soil conditions, wr'ili reports and appropriate professional reconmicirdalinim 4.6.1 The Owner shall firmish lire services of other consultants when such services are reasonably required by the scope of the Project and are requested by tine Design Professional and are not retained by the Design Professional as part of its Basic Services or Additional Services. 4.7 When not a part of the Additional Services, the Owner shall fiurnish structural, mechanical, chemical, air and water pollution tests, tests of hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.8 The Owner shall firmish all legal, accounting -and insurtmce counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, infonnation, surveys said reports required by Owner under Sections 45 through 4.3 shall be fbmished at the Owners expense, and the Design Professional shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of idle Design Professional. 4,10 The Owner shall give prompt written notice to the Design Professional if the Owner becomes aware of airy fault or defect hi the Project or nonconformance with the Contract Documents. 4.11 Design Professional shall propose language for certificates or certifications to be requested of die Design Professional or Design Professional's consultants and shall submit such to die Owner for review and approval at least fourteen (14) days prior to execution. The Owner agrees not to request certifications that would require knowledge or services beyond the scope of the Agreement. ARTICLE 5 CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Construction Cost shall be the total cost or estimated cost to die Owner of all elements of the Project designed or specified by the Design Professional. 5.1.2 The Construction Cost shall include the cost at current niarket rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Design Professional, plus it reasonable allowance for die Contractor's overhead arid profit. In addition, a reasonable allowance for con- tingencies shall be included for market conditions at the lime of bidd big and for chmiges in the work during coristniction. 5.1.3 Construction Cost does not include the compensation of the Design Professional and Design Professional's consultants, the costs of the land, rights -of -way, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2 RESPONSiB1LPf] FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of C "oatslruction Cost and detailed cstniratws of Consirucuon Cost prepay ul by the I 1sigrn Professional represent die Design Professional's best judgment as a design professional tasnillar wvilh dui: construction indusluy. If is recogilized, however, that neither lire DL'dgrr f got "r ,tonal nor lho owner has Control over, file crust of labor, maWials or, cquipfncin, ovt r (lie C;onlraclou'.s inelhods of dVivyinining bid prices, or, over camnpatitive bidding of rraad rt comMlons. ,Accordingly, tiro IStr„sigm Professional carrinin and dats not avarruani or represent dual bids or cost proposurls MH not vary front the Ownefq Project butipch ui hom arty gslfrrn e ref C t)nstrueaion Cost or evaluation prepared or agreed to by the Design Professional. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of the Agreement by tie f0mishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall be permitted to hiclude contingencies for design, bidding and price escalation, to determine what materials, equipment, eatnipenent systems and types of conMrthelion tiro to tut included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to invludc in the (,'onlract f)mnments allemift bids to Woom the Construction Cost to the fixed limit- Fixed limits, if any, shall be increased hi the amount of an increase in the l "ootract Sum ocfmiring after cxeculion of the C onlract for Constriction. 5.2.3 If [IN i'r(xmcnicni Phase brie not commenced within rill days after tho Design Professional submits the Construction Documents to tie Owner, any Project budget or faxed limit ofC°'Ominic6on Cost shall be adjusted to rellocl changer; in the general level of prices in Are construction industry belweendie date of submission of the Coosiraucdon l: oca limns to the. Owner and tie date oil which proposals are sought. ARTICLE 6 OWNERSHIP AND USE OF DOCUbIENTS 6.1 The Drawings, Specifications mid other documents prepared by (lie Design I°rolessf"onal for this Projccl fire insir °uaaacnts of true Design Professional's service and shall become the property of the Owner upon temihuation or completion of due Agrecincrit, `flic M'sigal 1'1,01iassionat is crnitled to rctaion copics or all such doeunnents. Such documents are intended only be applicable to this Project, and Owner's use of such documents, in other pTojeaas serail be at 0%vuer's soie risk find crxpeasc. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in anollier project or tare other pufposes tian are slscedfieil in the Agreement, the Design Professional is released from any and all liability relating to their use in that project 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is notto be conslnied as publication in derogation of the Design Professional's reserved rights. Page 9 CADocuments and Settings\2211725\Desktop \Contract $319 CDM Smith - Phosphounis Study \Contract 5319 - Pecan Creek WRP Phosphorus Study.doc ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 7.1 The Dcsigp Nolcssionnl may, wtininate the Agreement upon not less than thirty days written notice should due Owwncr list subslsuatially to perlform in accordcuaec with the terms of Ilie Agreement through rio taint of the Design Prolcssiormal. Owner may terminate die Agreement or any phase tttcr'cof wvitll or without cause upon thirty (30) days prior written notice to the l ksign llrofwssional. All work and labor being 1xi- formed under the Agreement shall cc use irmnediately upon I:Iwsagat Prolessionat`s r:ccipt of such notice. Before the end of the thirty (30) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed prior to the receipt of such 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 of the Owner upon termination of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with allow Design Professional for continuation of services on the Project, Design Professional shall cooperate in providing information. 7.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to notice of such suspension.. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in, die interruption and resumption of the Design Professional's services. 73 The Agreement may be terminated by the Owner upon not less than seven days w7iltcn notice to the Design Professional in the event dint the Project is permanently abandoned. Wthe Project is abandoned by the Owner for more dian-90 consecutive days, the Design Professional or the Owner may terminate Ole Agreement by giving written notice. 7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed an accordance with die Agreement shall be considered substantial non- performance and cause for termination. 7.5 If the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily performed, Ole Design Professional may, upon seven days written notice to the Owner, suspend performance of services under the Agreement. 7.6 In the event of ter minalion not the fault ofthe Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to termination. ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL 8.1 DIRECl'PERSONNELEXTENSE 8.1.1 Direct Personnel Expense is defined as the direct salaries of the Design Professional's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 8.2 REIMBURSABLE EXPENSES 8.2,1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Design Professional mid Design Professional's employees mid consultants in the interest of the Project, as identified in the following Clauses. 8.2.1.1 Expense of transportation im connection with the Project; expenses in, connection with authorized out-of-town travel; long - distance communications; and fees paid for securing approval of authorities havingjurisdiction over the Project. 8,2.1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subsection 2.6.19), postage and handling of Drawings, Specifications and other documents. 8.2.1.3 If authorized in advance by lie Owner, expense of overtime work requiring higher than regular rates. 8.2.1.4 Expense of renderings, models and mock -ups requested by the Owner. 8.2.1.5 Expense of computer-aided design and drafting equipment time when used in connection with the Project. 8,2.1.6 Other expenses that are approved in advance in writing by the Owner. 8.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 8.3.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services perfomned within each phase of service, on the basis set forth in Section 2 of lie Agreement and the schedule of work. 8.3.2 If and to the extent that the time initially established hn the Agreement is exceeded or extended through no fault of the Design Professional, compensation for any services rendered during the additional period of time shall be computed in the mariner set forth in Section 2 of the Agreement. 8.3,3 When compensation is based on a perectmta gw of Cow"Irurtiorn Cost and any port'fom of lite Prirjcct are dclacd or otherwise uot con tt Med, compensation for those portions of the Project ^shall be payable to the extent services me peribrined on thrisc lxnflons„ ht accordunce with the schWolo sat forth in Section 2 of the Agreement based on (1) the lowest bona tide bid or (2) limo such bid or proposal is received, dic most revent. prOhninmy estimate eft "oostruction Cost or detailed estimate of Construction Cost for such portions of die Project, 8.4 PAYMENTS ON ACCOUNT OF ADDMOIV L SERVICES 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 die Design Professional's statement of services rendered or expenses incurred. 8.5 PAYlIENTS WITHHELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sums withlield from payments to contractors, or on account of the cost of changes in the work other than those for which the Design Professional is responsible. Page 10 C,\Documents and Settings\2211725\Desktop \Contract 5319 CDM Smith - Phosphourus Study \Contract 5319 - Pecan Creek WRP Phosphorus Study.doo 8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner or Owners 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. ARTICLE 9 INDElINITY 9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability, clairns, demands, damages, losses, and cxpenses, including, but not limited to court costs and reasonable attorney fees incurred by the Owner, and including, without fhrltation, damages for bodily and person l injisty„ death and property damage, resulting from the negligent acts or omissions of the Design Professional or its officers, shawholdors, agents, or employees I'll the perl'onimnee ail "the 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. ARTICLE 10 INSURANCE During the performance of the Services tinder the Agreement, Design Professional shall maintain the following insurance with an insurance company licensed or authorized to do business in the Slate 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: - 10.1 Comprehensive General Liability Insurance with bodily injury limits of not less (hall $1,000,000 for each occurrence and not less than $2,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $250,000 in the aggregate. 10.2 Automobile Liability insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less titan $100,000 for each accident. 103 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability hisurance will limits of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits ofnot 1653 than $1,000,000 annual aggregate. 10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner cwdtdrrir ldrll insurance in a ^onipliun" wvilh, this Article 10 ant 11w time of the execution of the Agreement. The Ocncral Liability and Automobile Liability insurance policies "diall nadirs as an addWomal insured, Idle Workers ` (,'oraticasatio i policy shM: I contain a waiver of subrogattrat in fei )r of the Owner, and each policy shall eouitaiui rx prow a don than such i�iisurrance shall not be canccicd or rnociilied witliotrt thlrty (30) days' prior written notice to Owner and hiesiga Profess ;inal, In such event, llie Design Prolussiound shall, prior to the effective date of "the change or catrcellatioui, furnish Owner with substilttl.c certi ficates of insurance meeting the requirements of this Article 10. ARTICLE 11 MISCELLANEOUS PROVISIONS 11,1 The Agreement shall be governed by the laws of the State of Texas. Venue of any suit or cause of action under the Agreement shall lie exclusively in Denton County, Texas. 11.2 The Owner mid Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal represenlatives of such other party with respect to all covenants of this Agreement. The Design Professional shall not assign its interests un the Agreement without the written consent of the Owner. 11.3 The tern Agreement as used herein includes the executed Agreement, the Proposal, those General Conditions and other attachments referenced hi Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written instrument signed by both Owner and Design Professional, when interpreting die Agreement the executed Agreement, Proposal, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to harmonize the provisions. However, should the provisions of these documents be in conflict so that they cannot be rcauonably harmonized, such documents shall be given priority in the following order: 1. The executed Agreement 2. Attaclunents referenced in Section 3 of the Agreement other than the Proposal 3. These General Provisions 4. The Proposal 11.4 Nothing contained in the Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Design Professional. 11.5 Upon receipt of prior written approval of Owner, the Design Professional shall have the right to include representations of the design of the Project, including photographs of the exterior and interior, among One Design Professional's promotional mid professional materials. The Design Praficssional's materials shall not include die Owvncr's confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confi- dential or proprietary. The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project. 11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility amt liability of the Design Prolcssirnmai, its ertmployco, trssrua tulles, agents, subcontractors, and subconsultauts for the accuracy and competency of their designs or other work; nor .Ault such approval he decnded to be no assmri,ption of such responsibility by the Owner for any defect in the design or other work prepared by tic Dcsi m '11rofossional, its cn ployces, subcontractors, agents, end eonsulbuds. Page 11 C:1Docunients and Setlings12 2 1 1 12 51Desktop \Contract 5319 CDM Smith - Phosphourus StudylContraet 5319 - Pecan Creek 1VRP Phosphorus Stu ly,doe 1I.7 All notices, communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing saute in the United States mail to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless otherwise specified herein. 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. 11.9 The Design Professional shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended during the term of this Agreement. 11.10 In perforating the Services required hereunder, the Design Professional shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 11.11 The captions of the Agreement are for informational purposes only, and sltalI not in any way allect the substantive terns or conditions of the Agreement. Adopted 06M/2007 Page 12 C:\Documenls and Seltings\22117251Desktop \Contract 5319 CDNI Smith - Phosphourus Study \Contract 5319 - Pecan Creek IVRP Phosphorus Study.doc Attachment A Contract # 5319 Contractor Proposal Pricing iJ n 01 t h 3050 Posl Pak Blvd. Suite 300 Ilouston,reaas 77056 tel: 7134734300 '.: 7135100173 July 15, 2013 P.S. Arora City of Denton 215 E. McKinney Street Denton, Texas 76201 RE: City of Denton, Phosphorus Removal -Phase] Study, Pecan Creek Water Reclamation Plant (WRP) CDM Smith Is pleased to submit our qualifications, scope and schedule to provide engineering services in support of the above referenced project. CDM Smith has established itself internationally as one of the leading nutrient removal design consultants, with over 45 operating facilities worldwide— each one of them meeting Its permit limits. The ability of CDM Smith experts to tailor a treatment process to meet a community's specific heeds is bom from the knowledge of what works and what doesn't, which conies from 25+ years of successful implementation of chemical and biological nutrient removal technologies to a diverse group of existing facilities. CDM Smith has assisted the City of Denton with its wastewater treatment planning and design needs for more thau 13 years and we are proud of our history of successes together. Proposed project manager, Al Sun, P,E., BCEE managed tire design ofyour Pecan Creek WRP and was successful In Increasing the treatment capacity ofyour existing facilities through optimization. 'fire resulting cost savings allowed the funds to expand both the composting facility and the reuse water program. Mr. Sun will apply his knowledge and understanding ofyour facilities as well as his wastewater treatment and nutrient removal expertise to this project. This in -depth experience further enhances our ability to develop a cost - effective solution that is customized for your specific facilities and fits in with your immediate and long -term treatment gwis, We look forward to working with the City of Denton on this project and supporting the mission of the City's Water Utilities Department, Ifyou have any questions regarding our statement ofqualifications or require additional information, please do not hesitate to contact us at 214 -346 -2800. Sincerely, Id 181in, P.B.,IICBE ('11/ ,icw6w Vice Prctrident /Proposed Project Manager /1/.F. , Client Service Manager 0 VVAiE R -t ENVIRONMENT i TRANSPORTATION t ENERGY i rACiLITIES x i� cspm e City of Denton Phosphorus Removal -- Phase I Study Pecan Creek Water Reclamotion Plant Today many public utilities, like the City of Denton, are under pressure to reduce costs while meeting more stringent effluent water quality limits and satisfying the greater needs of the communities they serve. The challenges facing wastewater system owners are particularly significant in light of the regulatory agencies' efforts to establish total maximum daily loads (TMDIs) for specific water bodies, In many instances, strict limits on nutrients -- nitrogen and phosphorus —are being incorporated into NPDES permits for surface water discharge. As a result, many utilities are turning to nutrient removal processes such as biological Phosphorus removal (Bio -P) and chemical phosphorus removal as economical approaches to meeting stricter water quality standards, _ to select the right process to meet a particular sitesspecific needs and goals. The ability to accurately make these determinations is only achieved through extensive experience with the practical design, application of phosphorus removal technology, and first- hand knowledge of existbne facilities. CDM Smith's experience in Biological Nutrient Removal encompasses 25 years of proven performance. We understand how to balance the City's needs for effective nutrient removal with a cost - conscious approach There Is, however, no single, universal, 'best" method for nutrient removal, Many flow schemes have been developed for removal of phosphorus, relying on a combination of anaerobic and aerobic zones; chemical precipitation, or both. How these components work Individually is based on basic sclence; however, It's how these reactors are combined and how the arrangement is influenced by existing facilities, cost: considerations, temperatures, wastewater composition, site constraints, and other elements that makes the decision process much more complex than just formulas and computations on paper. With such a wide variety of configurations from which to choose, it is critical both technically and financially CDM Smith has long been a recognized leader in conventional and advanced wastewater treatment technologies and has assisted thousands of municipalities and water districts around the country develop sound, implementabie and cost - effective solutions to meet capacity demands and comply with regulatory requirements. CDM Smiths process design experts have coupled nutrient removal expertise with extensive experience that encompasses the design of .- virtually every generally accepted nutrient removal technique, As a result, CDM Smith has established itself internationally as one ofthe leading nutrient removal design consultants, with over 45 operating facilities worldwide— each one of them meeting its permit limits. The ability of CDM Smith experts to tailor a treatment process to meet a community's specific needs is born from the knowledge of what works and what doesn't, which comes from 25 years of successful implementation of nutrient removal technologies to a diverse group of existing facilities. CDM Smith's Successful History at the Pecan Creek WRP The Pecan Creek WRP is a conventional activated sludge wastewater treatment facility consisting of bar screens, grit removal, primary clarification, activated sludge biological reactors, secondary clarification, tertiary filtration, ultraviolet (UV) disinfection processes. CDM Smith has assisted the City of Denton with Its wastewater treatment planningand design needs at Pecan Creek for more than 13 Years. Weareproudofour • history ofsuccesses together and look forward to continuing to work together to achieve your goals. A brief overview of our recent history work at the Pecan Creek WRP is provided below. City of Denton Phosphorus ReorovaI Phase I Si tidy I Pecan Creek Water Reclamation Plant Expansion onu Upgrade The approach ofthe project was to minimize the extent of required improvements by optimizing treatment and hydraulic capacity of the existing treatment units. Smite bioselection of a non - bulking sludge and segmentation of the aeration basins to prevent short - circuiting and to Increase the nitrification capacity at an increased flow rate. The final clarifier capacity remained a function of the solids loading rate and required modifying the existing clarifiers to enhance their performance. The modifications included energy dissipating inlets, flocculation feedwells, a more efficient sludge remova I system and density current baffles. flisinfaction Im prove rnents Ultraviolet irradiation was implemented in 2003 for effluent disinfection to replace the existing chlorination and dechtorination systems due to concerns of plant personnel as well as surrounding residences. The existing chlorine contact basins were modified for installation of the UV system to save costs, The combined commitment of CDM Smith and the City of Denton resulted in an additional treatment capacity of existing facilities through treatment optimization, The resulting cost savings to the city provided the funds to allow expanding both the composting facility and the reuse water program. Digester Improvements As part of the expansion project, and a subsequent improvements project in 2oo5, CDM Smith improved the mixing and heating system as well as the replacement of an aging digester cover. The modifications provided improved destruction of volatile solids and increased efficiency in procession of biosolids at Pecan Creek, rl �, V, .......................��i� City of Denton • I Alward - Winning Phosphorus Removal Experience CDM Smith's expertise in biological nutrient removal has received special state and national recognition Including: American Academy of Environmental Engineers Grand Prize, Research. For Orange County, Florida's Eastern ServIce Area wastewater treatment facility, CDM Smith provided engineerirtgevaluation, full -scale and bench -scale plant Investlgatlons, and design services for the plant's rerating and expanslon that Included a modified Bardenpho'" process to achieve biological phosphorus and nitrogen removal to meet advanced wastewater treatment standards. CECNE award and the National ACEC Honor Award for Engineering Excellence, CDM Smith designed nitrogen removal facilities using two -stage nitrification at the John E. Fgan wastewater treatment plant In Chicago, Illirlols. The Metropolitan Washington Consulting Engineers Council Award. CUM Smith received this award for engineering excellence for a 5 mgd CDM Smith designed plant usingsingle stage nitrification for the 1=rederlck- Winchester Service Authority In Winchester, Virginia, PhosphorUs Removal Expertise Phosphorus removal is often an economical solution for meeting the strict nutrient limits Found in many NPDP.S permits. Although only one part of a wastewater treatment plant's overall crater quality management strategy, the selection and design ofthe right nutrient removal process is important. CDM Smith has both the technical knowledge ofand practical experience with nearly all generally accepted nutrient removal techniques. This experience not only includes the proven ability to tailor a treatment process to meet a community or plant's specific needs and requirements, nhorw, Removal —Phase I �Akj tyr I Pecan Creek Water Reclamation Plant but also the ability to design the selected process with flexibility In mind to meet possibly more stringent future limits. Our track record with successful operating facilities requires not only a thorough understanding of the science behind phosphorus removal and the ability to match an appropriate technology with the many other factors impacting such a selection, but also the critical elements of equipment selection and arrangement, as well as operational flexibility and control. This is particularly true when consideringupgrades to existing facilities. As engineers, CDM Smiths professionals are challenged by project constraints every time we take on a new assignment. These constraints may include site, regulatory, time, operational or budget. CDM Smiths industry reputation for quality and excellence has been built over decades of success in addressing these constraints through innovation and performance. As a result, CDM Smith has delivered to our clients some of the industry's most recognized and award- winning pro)ects and facilities. The following projects highlight some of CDM Smith's phosphorus removal work in the region. Don Branch Water Reclarnatioin Plant, Little Ehii, Texas CDM Smith was selected by the tipper Trinity Regional Water District to design and construct a new wastewater treatment facility seivicing their customer base in eastern Denton County. The site is located in a residential area necessitating design with appropriate aesthetics, and processes that mitigate noise and odors. With an effluent discharge to Lake Lewisville, the Doe Branch WRP Includes biological nutrient removal to comply with TCEQ limits on phosphorus. The facility will be constructed in phases. CDM Smith is currently designing and constructing Phase I (average dally flow of a mgd) for easy expansion in subsequent phases.'rhis task order includes detailed final design services, construction contract documents, bidding phase services, construction phase services, start -up assistance, and developing an Operations and Maintenance (O &M) manual for the new plant. The Phase 1 facility includes: A to -mgd influent pump station and fine screens forequipment protection Activated sludge with biological phosphorus removal Cloth media filtration for effluent polishing W Ultraviolet (UV) disinfec tion structure with two UVchannels Cascading -type post aeration structure. r 1Soltedsteel sludge holding tankwlthdif fused- airmix €ng. A centrifugal dewatering facility Alum storage facilitywith a prefabricated fiberglass building to house the alum feed pumps. Diesel standbygencratorset sized for the continuous operation of all critical wastewater treatment system units. Cedar Dark Water Reciamiation Facility, (,(�dar lark, "farts raced with growing wastewater demands, an environmentally sensitive receiving stream, and downstream communities protesting additional discharges, the City of Cedar Park decided to upgrade theirwastewater treatment plant to advanced levels when €twasexpanded from i.o -mgd to 25-mgd. The City selected CDM Smith to recommend a treatment process that would reliably treat the wastewater to a quality of 5 /5 12/1 mg/L (IIODMS /Nl ij /Phospliorus). To increase competitiveness between holdery of nutrient removal patents, the facility Is designed to operate as either a five -stage or three-stage nutrient removal proces% in addition to the biological processes, the facility Included a new preliminary treatment facility with self - cleaning barscreens and grit removal, and an automatic filler. )isaioii, Removal - Phase I "Sludy I Pecan Creek Water Recl umtion plant The first part of this assignment Involved wastewater quallly data acquisition and process alternative analysis. CDM Smith evaluated the A/0, Ai /O, PhoStrlp, Ratdenpho and conventional chemical treatment alternatives. The life cycle costs of each process were determined and included construction costs, operation, maintenance and chemical costs. CDM Stnhhdesigned an A20 process which, in the future, can be expanded to a Hardenpho, process if effluent standards change. Included in the project are a new influent pump station; screening and grit removal facility using vortex -type gritseparatots, a new fermentation and first anoxic basin, a new 2.5 mgd carousel oxidation ditch, new secondary clarifier, new tertiary automatic backwash filters, and new chlorination /dechlorination facilities. Also provided was a newsludge dewatering facility consisting of an aerated sludge holding tank, two two -meter belt presses Ina pre - engineered metal building, and associated pumps, conveyors, piping, and polymer feeding equipment. CDM Smith also designed and managed an odor investigation of this treatment plant and its collection system. After an adequate amount of data was collected, different control strategies, includingoperation and maintenance improvements in the collection system, chemical addition, and collection and treatment of odorous air were analyzed. The recommended solution was operation and maintenance improvements to reduce odor generation potential and relocation of the existing chemical feed to provide better mixing to better oxidize hydrogen sulfide that forms in the collection system. ia4y of ()enlon • I hoaplIr,' n Removal Phase I Study I Pecan Creek Water Reclamatlon Plant Big I:Dry Creek Wastewater `treatment Facility Upgrade and Plant Expansion, Westnilnster, Colorado The City of Westminster selected CDM Smith to perform preliminary design, final design, bidding, permitting, and services during construction for the Dig Dry Creek wastewater treatment facility upgrade and expansion project. The improvements added additional capacity, allowed the facility to meet more stringent permit requirements and replaced aging facilities. In an effort to meet upcoming nutrient limits, the CDM Smith design modified the treatment process at Dig Dry Creek from a traditional activated sludge process to an A20 Biological Nutrient Removal (BNR) process. Some Improvements Involved construction of new facilities while others included only rehabilitation of existing facilities. The new facilities included headworks building, influent pump station, additional aeration basins and secondary clarifier, UV disinfection, sludge mixing pump station, sludge mixing tank, gravity belt thickeners, secondary anaerobic digester, hydraulic outfall structures, RV waste handling station, two biofilters for odor control, administration building and associated support facilities. Facilities proposed for rehabilitation include conversion of primary clarifiers into anaerobic fermentation tanks, conversion of the existing single pass aeration bashes to serpentine configuration, WAS and RAS pumping, anaerobic digestion facilities, sludge thickening and dewatering facilities, sludge processing building, conversion of existing influent pump station into a raw sewage /plant drain pump station, blowers, primary sludge pump station /odor control building, conversion of reuse water treatment plant from chlorine gas to sodium hypochlorite, digester mixing equipment, yard piping and the operations building. Construction began in august 01`2005. CDM Smith provided construction observation with a project representative on -site. The expanded and upgraded facility has been In operation since 2oogand has consistently met Its discharge limits of ro mg /L and t mg /L for total nitrogen and total phosphorus, respectively. In addition, CDM Smith prepared an operations and maintenance (O &M) manual to include all vendor supplied O &M manuals forall new equipment, Facilities Included: New headworks facility capable of treatinga maximum month flow of 12 rngd, with a peak hour flow 01726-7 mgd (two 1/4-inch mechanical bar screens, two screenings washer /compactors, two forced vortex grit removal units, two grit classifiers and associated gates, valves and control system). New influent pump station capable of handling current low flow rates and future peak flow rates. New RAS pump station, and all of the solids handling pumps on site, Newabove ground, glass coated steel tank, with aluminum cover, for storingdewatered solids. New Secondary Clarifier New Ultra Violet Disinfection system. New Secondary Digester. New sludge mixing and loadout pump station. New Sludge Thickeningand DewateringSystems. New Bulk Sodium Hypochlorite Systems. New SCADA system. New Biological Nitrification Reduction system, CRY of ipenton Experienced Team Ensures Success CDM Smith Irasassembled a team of experts in wastewater treatment and biological nutrient removal, as Illustrated in the organizational chart below. Members of this team have worked on numerous wastewater facilities throughout Texas and the surrounding states. Brief experience summaries of CDM Smith's key team members are presented on the following pages. Our project team will be led by our proposed Project Manager Al Sun, who brings direct experience with your plant, as well as more than 35 years of Texas wastewater treatment expertise. Al will work band -in -hand with Lead Process Designer, Samir Mathur, who has led nutrient removal projects in Texas and Colorado. We have Included a Technical Review Committee that consists of nutrient removal experts, including Rodney Chapinand jowl Rife. Both have performed similar nutrient removal studies and designs and provide lessons learned regarding the level ofdetail needed to comply with the regulatory requirements. Al Sun, la.E, — Project Manager zlatMG'wrs Removal - -Phase I Sluriy i! Pera`z Crrsrk water rteclaniatlon Plant Adam Evans, P.E. --Principal -in- Charge Mr. Evans has to years of experience in engineering focusing on the management of complex design projects for water and wastewater treatment facilities in North Texas, Oklahoma, and Northern California. As Principal -In- Charge, Adam Evans will ensure that your goals are met and expectations are exceeded in the delivery of this project. He will be responsible for allocating adequate resources to respond to any needs that may arise throughout the course of the project. Joel Rife, P,l . (NM) — Technical Review Mr. Rife has 32 years of experience in environmental engineering. He possesses a broad -based knowledge of wastewater treatment process engineering with an emphasis on design including biological and chemical nutrient removal, headworks, effluent disinfection, primary and secondary sludge processing, as well as plant capacity evaluations and wastewater plant operations. Heisthe primary author of Chapter ti of the W EF Manual of Practice No 8 "Design of Mtnticipal Wastewater Treatment Plants' and co- author of Chapters 6, to and u of WEF Manual of Practice No z9 "Operation of Nutrient Removal Facilities." DPATO Together, this Leadership Team will work closely with City staff to provide the right balance of management and technical expertise to ensure project success. Mr. Sun has over qo years of experience in environmental engineering specializing in wastewater and water treatment and solids handling. He has served as a principal -in- charge officer, program manager, project manager, construction manager, senior process specialist, senior value engineering team member, and technical reviewer for major projects. Mr. Sun has been intimately Involved in developing innovative treatment technologies and processes to address complex wastewater treatment challenges, including the sidestream treatment process and the biologlcally file enhanced high -rate clarification process. He YIV brings extensive experience and understanding of your wastewater system, as well as nutrient removal study and design experience throughout w Texas and surrounding states. s f Oty of Denton + Phos Rodney Chapin, P.E. •- Technical Review Mr. Chapin has over 25Years ofexpericnce In environmental engineering specializing in municipal water treatment and distribution, municipal and industrial wastewater treatment and collection, water /wastewater solids management, reclaimed wastewater reuse, and biontonitoring/toxicity reduction. Mr. Chapin conducted a research project to study the effects of acetic acid inhibition on the biological phosphorus removal process In wastewater treatment plant. Two pilot plants were constructed and operated for nine months to study the effects of municipal wastewater spiked with acetate on the biological phosphorus removal process. The research project was performed for the plant to determine methods for phosphorus control in the effluent. Sarnir M<athtur, P.E. -- Lead Process Mechanical Mr. Mathur is an environmental engineer with in -depth experience in analysis and design ofwastewater treatment facilities. His nutrient removal experience includes serving as Project Manager for the Big Dry Creek Wastewater Treatment Facility In Westminster, Colorado where he evaluated the feasibilityand cost of implementing biological nutrient removal, including comparing nutrient removal alternatives on a cost and non -cost basis. The nutrient removal processes evaluated were A20, Five - Stage Bardenpho, University of Cape Town, Virginia Initiative, Johannesburg, and ISAH processes. Following the evaluation phase, he was the lead design engineer on the biological nutrient removal improvements, which included construction of new aeration tanks with anoxic zones, new aeration equipment, blowers, and secondary clarifiers. He is currently designing Upper Trinity's Doe Branch Water Reclamation Plant's nutrient removal facilities. Srikanth Koduri, RE. -- Process Mechanical Stipport Mr. Koduri is an environmental engineer experienced with wastewater treatment plant design and has been involved In facility designs throughout Texas, His experience includes, sen'ingas Project Engineer for the biogas to energy project for Pecan Creek Water Reclamation Plant, the current Doe Branch Water Reclamation Facility nutrient removal facility design for Upper Trinity, Improvements at North Texas Municipal Water District's aliorus Removal - Phase I :,Id'y I Pecan Creek Water Reclamation Plant South Mesquite Creek W WTP, .improvements at Dallas Southside WW'fP, and Upgrades at Fort Smith, Arkansas P Street WWTP. Indira Pjetrovic, P.E. — Electrical Engineering his. Pjetrovic has 13 Yeats of experience in the water and wastewater consultant - engineering field. Site has been responsible for engineering design, cost estimating, and services during construction of electrical systems for various municipal waterand wastewater systems. John Robinson, P.E. -• Instrun'lentation Mr. Robinson has 26 years ofexpericnce developing and implementing instrumentation and control systems for small, medium, and large automated processes, ig of which he has specialized in water and wastewater treatment. Mr. Robinson's experience includes project justification, project management, project engineering, YzK audits and training, Instrumentation specification, control logic development for programmable controller systems (PLC) and distributed control systems (DCS), application programming, field startup, troubleshooting, operator training, and pilot plant operation. Erie Bjorklund, P.E. — Structural Engineering Mr. Bjorklund has over 26 years of professional experience as a structural engineer. His areas of expertise include design for water and wastewater treatment facilities, Including pump stations, water transmission facilities, drainage structures; and solid waste facilities and buildings, including both the hwestigation and rehabilitation of existing structures and the design of new facilities. Asa design engineer and project manager, he has provided services ranging from Initial site investigation reports, to developing alternative solutions with associated cost estimates, to final construction plansand specifications, on through to construction management services, The projects Mr. Bjorklund has been involved with have ranged in size to more than $1.5 billion in construction costs. ta'dy of Menton - i"huspl It' rus Removal -Phase I Mucly I Pecan Creek Water Recltmatlon Plant Project Approach BACKGROUND The City of Denton Pecan Creek Water Reclamation Plant (PCWRP) was expanded In toot and Is currently permitted to discharge 21 mgd ADF and 46 mgd z -Hour Peak Flow. For the TCEQ permit renewal application submitted by the City of Denton in zoto, TCEQ has added the discharge parameter requirement for Phosphorus at a limit ofo.5 mg/I to the permit. The final permit has been issued by TCEQ this month. The City of Denton is required to make the process modifications and necessary modifications to the treatment units to comply with lite Phosphorus limit within three years ofthe Final permit issuance. SCOPE OF SERVICES Phosphorus Discharge I.iniltand Impact on Plant Processes This Phase t study is to assess the City's options for addressing the new phosphorus limit in the anticipated NPDES permit, The study will focus on phosphorus removal alternatives, national trends, impacts of treatment modifications, and the use of the removed phosphorus after digestion. Specifle tasks include; t. Lvaluate viable phosphorus removal alternatives and recommend the most beneficial and practical solution for the PCWRP. Evaluated options include; a. Biological phosphorus removal -activated sludge processes that have been successfully used for similar applfeations, b. Chemical phosphorus removal -precipitation of phosphorus and removal In the clarification process, activated sludge process, and filtration process. c. Combinations of these methods to optimize removal based on site - specific considerations at the PCWRP. z, Assess the impacts ofphosphorus removal on other treatment processes at the PCWRP, including an evaluation of the effects on the following, a. Thickening and dewatering processes b. Sidestream phosphorus treatment c. Anaerobic Dlgestionand Biogas production d. Composting g. Address phosphorus Issues after anaerobic digestion, such as utilizing removed phosphorus as a fertilizer q, Assess Impact of phosphors removal on future nitrogen removal requirements 5. Assess feasibility of chemical addition at the Hickory Creek Lift Station to mitigate odors and begin the phosphorus precipitation process prior to entering the WRP. 6. Prepare a Draft Report to document the findings and finalize the report after Incorporating City's review comments 7. Prepare conceptual layout drawings for Improvements to provide phosphorus removal 8. Provide internal QA /QC review of Draft Report and drawings 9. incorporate City comments on Draft Report and issue Final Report. Engineering documents are to be reviewed by City personnel following CDM Smith's In -house quality control and qua lity assurance procedures. City will provide CDM Smith with one consolidated set of comments on engineering documents upon completion of internal review. TIME PERIODS FOR SERVICLS The draft report will be completed within four months from the date of authorization to proceed. CDM Smith proposes that the detailed design be handled under a separate scope based on the recommendations of the feasibility study. (Ay of Denton - PhosI)Itofus Removal Phase I Sttjdy E PecanGreek W rter Reclainatlon Plant Schedule and Workplan /Phasing CDM Smith understands that the City of Denton must complete this phosphorus removal project under strict time requirements stipulated by the TCGQ. Based on a three -year allowance for full implementation of phosphorus removal Improvements, the have identified a schedule that will provide Pecan Creek WRP staff with at least three full months to optimize the process improvements and receive training on the new operational procedures. The chart below shows our proposed schedule for completing the work. f( Qls%esflnalMnil tltcloPrac¢i �- .. �� Ph.a I Study y wM9� (fo py ofpentun Revkn Phsx,MlaifedMi n a& u0Y ds M, dT E aud 0Pi, u �rV unrpr¢soflt � I � qurlHw� � � � p f 8 nOOoa ✓40, q,Pa I � � G . � v Cra dt'iri <PVo.aOv ntu:4UP�6G � � r hax ifonsuuatun I �. r Phas-4Plan10 Ir°n-0aIianR l+rtrtlrw a �� 9 SIMMIth City of Denton PCWRP Phosphorus Removal Phase Uee Basis of Compensation r C SF h7 p�if nrs and Costs �m Labor m._ Project Project FPr ct Electrical) CADD Engineering' Task Descrl tlon Mana er P Technician stant A�' Total Total Sun uansal KWorer .. Robinson Rowers _ . Pk�ckfa /�chellww Hours Cost Study Phase A. Kickoff Workshop 8 4 8 1 22 $ 4,550 Be Task 1 - Phosphorus Removal Afterna ive 16 4 40 2 8 1 71 $ 13,105 C. Task 2 - Impacts on Remaining i'rocers 8 2 40 2 1 53 $ 8,905 D. Task 3 - Post - Digestion Phosphorus Use 4 2 20 1 27 $ 4,515 E. Task 4 - Impacts on Nitrogen Removal 8 2 20 1 31 $ 5,735 F. Task 5 - Hickory Creek Chem Addition 8 2 16 2 1 29 $ 5,545 * Task 6 - Prepare Draft Report 8 4 60 8 8 88 $ 13,880 H. Task 7 - Conceptual Layouts 16 4 24 4 1 40 1 90 $ 17,000 1. Task 8 - QA/QC of Report 2 2 4 8 16 $ 4,170 ). Task 9 - Incorporate � 4,610 Subt tal, Manhoursi 80 27 244 i8 9 56 24 45 8 Expenses; �� -: 3,120 Total 85135 Attachment B- Contract # 5319 Awarded Contractor Documentation l r City of Denton Purchasing 901 -B Texas St. Denton, TX 76209 Phone: (940) 349 -7100 Fax: (940) 349 -7302 www.dentonourchasing.com Substitute W -9 Form The IRS requires all vendors to complete a W -9 Form. The Information on this form must be filled out, signed and submitted by a vendor representative. All Information must be completed before a purchase order or payment will be Issued. Name as shown on your Income tax return: Tax IDISoclaI Securlty #: 504,46 Toc. Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxtaxpayer identification number (or I am waiting for a number to be issued to me), and 2.1 am not subject to backup withholding because (a) I am exempt from backup Wtholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of failure to report all Interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. 1 am a US Nrerm or -ter U.S. person -for fededral tax purposes as defined at the bottom of this page„ Authorized Signature: . � � .....�. �... .� Printed Name Mailing Address: o Company Name: Equipment Rental/Lease (A•9) Contact Name: yk'!5 _ ❑ / B " �Q ° Q l Ln - Address: Services Only (A- r' 100 l S i Check approprlate box for federal lax classification freauired): Individual/ ❑ Sole Proprietor El Exempt l avee Corporation ❑ Partnership Must designate C or S C ❑ S Limited Other ❑ Liability ❑ Pleases specify: p ty' Business Type E3 Real Estate Rentaftease (Al) ❑ Equipment Rental/Lease (A•9) ❑ Royalties (A -2) ❑ Medical/Health Care (A•6) Services Only (A- Merchandise- Merchandise & ❑ ❑ 7) ❑ Goods Only (A -7) ❑ Services (A -7) Legal FWTVAtl;ornoy (A -C) Consultant/Prof Proceeds from Fees (A-7) Real Estate Purchases 5) Type of Organization: Minority Female Owned El Non Profit E] Historically Underutilized Owned Business 'Definition of a U.S. Person -For Federal Tax purposes, you are considered a U.S. person if you are: (a) an Individual who is a U.S. citizen or U.S. resident (b) a partnership, corporation, company, or association created or organized In the United States or under the laws of the United States (c) an estate (other than a foreign estate), or (d) a domestic trust (as defined in Regulations Section 301.7701 -7). COD Page 1 9/23/2011 Vendor Information Not Regulred for W9 Form Rem1t Addreal (if different from above) Company Name: Contact Name: Address: l / i' / e, rW Email. Phone Number: Fax Number: List Products and/or Services Interested In Bldd For Internal Use Only ❑ New Vendor ❑ Vendor Change ❑ Refund Requesting Department: Department Representative (Printed Name) Purchasing Signature: Vendor Number ACH Email: ACH Email: Phone Number: Date: Date: Fax Number: I (we) authorize the City of Denton to deposit payments Into the checking account listed. The authority remains In effect until the City of Denton has received written notification from me of termination In time to allow reasonable opportunity to act on It, or until the City of Denton has sent me I written notice of terinin 7( the at ement. d V011dor slgnnlure r Print Nanio e r� '' �t fdt'l Date COD Page 2 9/2312091 INTEREST QUESTIONNAIRE CONFLICT OF I mmRE � FORM CIQ �.......... business with local goverjltuentaN crttit __ For vendor or other of son cloin This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. pTI'ICE USE ONLY This questionnaire is being filed in accordance with chapter 176 0) the Local Goentment Code b person bate q g p y p Received who has a business relationship as defined b 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. 'i'tuv of person who leis a bushmss relationshi with t � r "" I p p ocal governmental entity. V� ❑ Chech 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 riling authority not later than the 7'" business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Nam......... ......______.�_ w�� ....... �... ....... ..._._.. e of local govenunent officer with whom filer has an employment or tursiiicss rt alionshivs ........... .......................m..._e.. Name of Officer This section, (item 3 including subparts A, 13, 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 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? 0 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? Yes EJ No D. Describe each affiliation or business relationship. ..._ - -- ................... .. – — _m_�. . .. Sigr��r �g business with the governmental entity Dale Contract # 5319 Insurance Documentation DATE(MM /DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE 07/23/2093 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL.. INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to � the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the w certificate holder in lieu of such endorsement(s), c PRODUCER CON'TA'CT NAME° Aon Risk Services Northeast, Inc. 05 ...._.� Ext): No. P Boston MA office (acN 610 -363 01 one Federal street E -MAIL Boston MA 02110 USA ADDRESS: _ ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD INSURER(S) AFFORDING COVERAGE NAIC # INSURED Lloyds London INSURER A: Underwriters At L 5 15792 CDM Smith Inc. 150 INSURE RB--....-- zurich American Ins Co 16535 ONE CAMBRIDGE PLACE HAMPSHIRE STREET INSURER C: CAMBRIDGE MA 021390000 USA INSURER D: INSURER E: _........ ______________ _ ,.................. .....,. ................................ - ---- INSURER F: COVERAGES CERTIFICATE NUMBER- 570050817951 REVISION NUMBER I HIS IS TO CERTIFY I'I "IA"r rl BE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED A13OVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Limits shown are as requested MMPN7DR'YE Pr POLICY URYE ' P Y LIMITS TYPE OF INSURANCE M li wd POLICY NUMBER H GENERAL LIABILITY �(3L-U b EACH OCCURRENCE= $2,000,000 ...... r 15ANTA us_ o RENgyf $ 300 0 000 X COMMERCIaI.. CFNCRAI.. LIABILITY PREMISES (Ea occurr ®Heel , .. CLAIMS -MADE X OCCUR MEE) EXI (Any one person) .,.......... ...._.__...... person} $10,000 - ........,, PERSONAL. & ADV INJURY $2,000,000 °- GENERAL AGGREG ATE .............. ._.,,,,,,,,,-„ ., $4,000,000 r _....... ....," ,..,..,. ................ .. PRODUCT S - COMP /OP AGG �..".. f;INt AGGREGAI P LIMP APPIIF PER: $4,000,000 0 iU) POLICY X II X, ..... --- TIRO LOG ® AUTOMOBILE LIABILITY FSAP 6:$7 63 6 31 --1-7 O�i U.L /IC1:.�3 CIl/ 1014 COMI3INFC) 3INGI..Ee I..IIUIIi' 000 000 $2,000,000 ........$2 , , ......... XI... ANY AUTO BODILY INJURY ( Per person) O . „.... ..... ................. ................. Z ” " " "' "' "' "' ..HFDI.ILFD BODILY INJURY Per accident) ....... AU 7oS AU FOS ..,. ...... ........ II IaC }kII.IEYIYIY@,NYF4C;1!: r+ U X HIRED AUY'OS X NONOWNEC) ( i"I'tlQ'T.'I €n CPPI L) .,,., AUi O:i d UMBRELLA LIAR CUR EACH OCCURRENCE CURR.E,.N,aC,., E _ . ......... V ,..__ EXCESS LIAB C C 4" L fik::f7 REIEfNI'IOIN B WORKERS COMPENSATION AND WC8 3 76 63 3 18 61 72013 0151720-R X wC S�T�aTU- OTH• IEMII LO'YERS' LIABILITY Y R N, TORY f IMII S..... ,Kt ,..._ ANY PROPRIEIOR R PARTNER/ EXECUTIVE F I EACH ACCIDENT $1,000,000 Orr'ICERRMEMBE ER EXCLUDED? A? I_N . NIA _� ,,,, ° .. .... ., , , 4 '., IMrrndaturryR In NH) F-..I DISEASE -LA EMPLOYEE $1,000,000 PP y +r de scdhe under °�'• �' °° Di IJRIVI ION O tl71'LIPA 14X,iS Imlowe E L DISEASE POLICY LIMIT $1,000,000 ,. A Archit &Eng Prof QC1301367 O1 /O1 /1U13 01/01/2014 each claim $1,000,000 aggregate $1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD 161, Additional Remarks Schedule, If more space Is required) Re: Contract No. 5319, Pecan Creek Water Reclamation Plant Phosphorus Removal Project.- ,,,,,�. The City of Denton is included as Additional Insured in accordance with the policy provisions of the General Liability and Automobile Liability policies. A Waiver of Subrogation is granted in favor of the City of Denton in accordance with the policy provisions of the workers° Compensation policy. y �W n f °F CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. vg`w City Of Denton 215 East McKinney Street AUTHORIZED REPRESENTATIVE II°� v Denton TX 76201 USA lylllav ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD EXHIBIT B Scope of Work Pecan Creek WRP Phosphorus Removal Improvements Project City of Denton, Texas Project Overview This project consists of engineering services required for the design, bidding and construction of phosphorus removal improvements to the Pecan Creek Water Reclamation Plant. II. Scope of Services The project will consist of two project phases and the major tasks under each phase are as follows: Phase I - Design ■ Prepare 60% Complete Plans and Specifications ■ Prepare 90% and Produce 100% Complete Plans and Specifications Phase II - Bidding and Construction ■ Provide Services During Bidding ■ Provide Services During Construction In addition to the above 4 tasks, a "Project Management" task is also included so that the project is effectively executed. A narrative description of the tasks and subtasks follows. Phase I - Design: Plans & Specifications The design task will include the development of plans and specifications to include the following upgrades and improvements: Addition of a new ferric chloride storage system that will include a chemical storage facility with chemical containment. The chemical storage facility will include ferric chloride bulk storage, ferric chloride day tanks and a ferric chloride feed system and will be housed under a metal canopy structure. Chemical feed system, including chemical feed pumps, valves and appurtenances. Chemical feed piping to various treatment units including raw sewage influent box, primary clarifiers, aeration basins, tertiary filters, anaerobic digesters and belt filter presses. CDM Smith Scope of Work Pecan Creek WRP Phosphorus Removal Improvements Project City of Denton, Texas Associated structural, civil, building - mechanical and electrical improvements required for the chemical storage system and feed systems.: Instrumentation improvements required to incorporate the chemical storage and feed system addition into the existing Plant SCADA system. Survey and geotechnical investigation are not included in the scope for this Project. The City of Denton shall supply up -to -date and accurate survey and geotechnical information to be utilized for design. Design development will occur in three steps (60 %, 90% and 100% complete), with the first step being development to the 60% complete design milestone. The design plans will be developed on AutoCAD systems and all specifications will be developed on Microsoft Word - compatible word processing systems. Task 1- Prepare 60% Complete Plans and Specifications Task Objective: To develop the recommended phosphorus removal alternative (Chemical P Removal) into 60% complete level plans and specifications. 1. The CDM Smith Team will prepare 60% complete plans as a part of this task which will generally include: • Cover/ title sheet with location plan • Plan index sheet • Process flow diagram sheets • Design criteria sheets • Civil /Site legend and abbreviation sheets • Site plan sheets • Yard piping plan sheets • General details of civil /site construction sheets • Structural legend and abbreviation sheets • Structural plan sheets • Structural sectional sheets • General details of structural construction sheets • Architectural treatment sheets (if required) • Process/ mechanical legend and abbreviation sheets • Process & instrumentation diagram sheets • Process/ mechanical plan sheets • Process/ mechanical sectional sheets • General details of process/ mechanical construction • Electrical/ instrumentation legend and abbreviation sheets • Electrical one -line diagram sheets • Instrumentation control system architecture sheets • Electrical plan sheets CDM Smith 2 Scope of Work Pecan Creek WRP Phosphorus Removal Improvements Project City of Denton, Texas • Electrical sectional sheets • General details of electrical/ instrumentation construction sheets 3. The CDM Smith Team will prepare 60% complete specifications as part of this task which will generally include: • Preliminary table of contents • First draft general terms and conditions of contract • First draft general requirements of contract (Division 1) • First draft critical specification sections in Division 11 and 15 4. Upon completing the above subtasks, the CDM Smith Team will submit the 60% complete design review package to the City for review. The City's project team will review the design package and provide one consolidated set of comments to CDM Smith within two weeks of delivery. Appropriate comments and concerns will be incorporated into design efforts leading to the 90% complete design milestone. Any additional comments delivered by the City will be out of scope. Subtasks: 1. Finalization of design plans will occur under this task and will generally consist of adding specific details of construction sheets for all design disciplines, adding instrumentation control loop diagram sheets, and adding elementary wiring diagram sheets to the electrical discipline design package. 2. Final draft design specifications and general terms and conditions of contract will also be produced under this task. Remaining work to be completed includes: • Tailoring Division 2 through 16 technical specifications • Tailoring the general terms and conditions of contract for the specific requirements of the project 3. Inter- and cross - discipline checking of both plans and specifications will also occur under this task. Additionally, the CDM Smith Team will perform final CDM Smith 3 Scope of Work Pecan Creek WRP Phosphorus Removal Improvements Project City of Denton, Texas field verifications for constructability, operability and maintainability as part of this checking exercise and discuss maintaining plant operation during construction. 4. OPCC will be developed based on 90% complete design documents. 5. Upon completing the 90% design documents (plans and specifications), the CDM Smith Team will provide 90% complete documents to the City's project design team for review. The City's project team will review the design package and provide one consolidated set of comments to CDM Smith within two weeks of delivery. 6. The City's review comments will be incorporated into the 90% complete plans and specifications for the production of Bid Documents. The Bid Documents will be delivered to the City for bidding purposes. Any additional comments delivered by the City beyond the single consolidated set of comments on the 90% deliverable will be out of scope. Task 2 Deliverables: • 90% Complete Design Documents (Plans & Specifications - 3 copies) • Bid Documents (3 copies of 11 x 17 drawings and specifications, 2 CDs with PDFs of drawings and specifications) • 90% Engineer's Opinion of Probable Construction Costs for the Project Phase H — Services During Construction Task 3 - Provide Bidding Services Task Objective: To assist the City project team with the bidding of the Improvements Project. Subtasks: 1. The CDM Smith Team will provide written response through addenda as necessary during the established bid period to clarify the completed contract documents in response to contractor and vendor query. 2. The CDM Smith Team will participate and present an overview of technical aspects of the project at one pre -bid meeting planned and executed by the City's team. 3. The CDM Smith Team will review the bid tabulation provided by the City's team and prepare written award recommendation. CDM Smith 4 Scope of Work Pecan Creek WRP Phosphorus Removal Improvements Project City of Denton, Texas 4. The CDM Smith Team will assemble conformed documents and provide the City one CD with electronic copies of plans and specifications. Task 3 Deliverables: • Contract Addenda as necessary • Contract Award Recommendation Letter • Conformed Contract Documents (One CD with PDFs of Drawings and Specifications) Task 4 - Provide Services During Construction Task Objective: To assist the City with the execution of the construction phase of the project. Subtasks: 1. The CDM Smith Team will receive, review and provide written response to contractor - generated Requests for Information (RFI). An estimate of 20 RFIs is included. Any additional RFIs will be considered out of scope. The CDM Smith Team will receive, review, and provide written recommendations to the City as to the merit of contractor - generated change order requests. Additionally, the CDM Smith Team will review change order costs (or credits) to determine whether they are representative of the additional work value and provide written recommendations to the City. An estimate of 5 change requests is included. 3. The CDM Smith Team will receive, review, and post contractor - generated submittals required to be submitted by the Contract Documents. An estimate of 20 shop drawings and 10 O &M manuals is included. Any additional submittals will be considered out of scope. 4. The CDM Smith Team will receive, review, and provide written comment as to the adequacy of the Contractor's Schedule of Values and Construction Schedule as necessary. 5. The CDM Smith Team will receive and review the Contractor's monthly applications for payment, and determine and recommend the amounts that the Contractor's be paid. Such recommendations of payment will be based on observations and review that the work has progressed to the point indicated, the quality of such work is in general conformance with the Contract Documents, and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled. CDM Smith 5 Scope of Work Pecan Creek WRP Phosphorus Removal Improvements Project City of Denton, Texas 6. The CDM Smith Team will visit the site to observe the progress of the work once every month for nine months during construction, coinciding with the construction progress meetings established for the project to combine the purpose of a site visit and maximize the value of consultant services provided under this task. 7. The CDM Smith Team will provide construction service related consultation as necessary during the course of construction. Such consultation may include: Recommending conformance tests to be performed and interpreting the results of such testing; Interpreting the Contract Documents and helping to resolve disputes when Owner and Contractor interpretations differ; Interpreting and commenting on the conformance of key work elements; Assisting in the development of contract deficiency lists at both substantial completion and final payment junctures of the project. Up to 2 site visits are included for developing contract deficiency lists. Task 4 Deliverables: • RFI Responses • Payment Recommendations • Change Order Review Comments • Submittal Review Comments • Change Order Initiations • "Punch -List" following substantial completion inspection Task 5 - Provide Project Management Task Objective: To effectively deliver the project. Subtasks: 1. Assess the expectations of project stakeholders and manage the scope, schedule and budget of the project. 2. Facilitate communication between all project stakeholders. 3. Provide quality assurance and quality control. 4. Coordinate meeting schedules among project stakeholders and document meetings in the form of minutes. 5. Establish and maintain an electronic project schedule during design using Microsoft Project. CDM Smith 6 Scope of Work Pecan Creek WRP Phosphorus Removal Improvements Project City of Denton, Texas 6. Advise the City when established project expectations cannot be met. 7. Conduct two progress meetings to review with City staff work performed to date and tasks planned, and discuss any outstanding project issues. This is to maintain close involvement of City staff in the project and streamline decision - making. CDM Smith 7 LL v .k ..1 2 Um 12 Mf o 4' , e � 'S Z; R 9 Q q v 4 ........... - - - - - - - - - - - - - P ry IM LS City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0587, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: October 7, 2014 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for Directional Boring Services; providing for the expenditure of funds therefor; and providing an effective date (RFP 5570- awarded to Gardner Telecommunications, Inc. (GTI), in the three (3) year not -to- exceed amount of $1,531,410). The Public Utilities Board recommends approval (5 -0). RFP INFORMATION The City has utilized contractors for the installation of underground utilities since February 2000. Due to the rapid rate of growth in Denton and the City's desire to install underground facilities in all new subdivisions and in locations that meet economic feasibility, the City began letting contracts for this type of work. RFP 45570 includes labor, equipment, tools, supervision, as well as all administrative and insurance costs incurred by the contractor, necessary to complete installations of underground directional bores under the direction of DME and City staff. Anticipated work will be performed for underground construction in residential subdivisions, commercial and industrial developments, exit feeders for new substations, and overhead conversion projects. This agreement does not guarantee a minimum amount or value of construction work. Any work will be tasked under the contract on an as- needed basis as determined by DME and /or the City of Denton. Requests for Proposals were sent to 724 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. Four (4) proposals were received. The proposals were evaluated based upon published criteria including price, project schedule, compliance with specifications, and indicators of probable performance. A Best and Final Offer (BAFO) was conducted which resulted in no savings. Although GTI did not submit the lowest pricing, the firm was ranked the highest and determined to be the best value for the City (Exhibit 1- EvaluationBAFO Sheet), as they have demonstrated a high propensity to complete projects on time and within budget, additionally ensuring that the City obtains quality in the work performed. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On September 22, 2014, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. City of Denton Page 1 of 2 Printed on 10/2/2014 File #: ID 14 -0587, Version: 1 RECOMMENDATION Approve a contract with Gardner Telecommunications, Inc. (GTI), in the three (3) year not -to- exceed amount of $1,531,410.00. This amount is based on estimated quantities for all line items included in RFP and previous spend history over the last contract period. PRINCIPAL PLACE OF BUSINESS Gardner Telecommunications, Inc. Denton, TX ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) 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 services provided through this contract will be funded from project accounts on an as needed basis. EXHIBITS Exhibit l: Evaluation/Best and Final Offer Exhibit 2: Public Utilities Board Draft Minutes Exhibit 3: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Brent Heath at 349 -7180. 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M 1 1. 1 m W �; of m 8.8. 8 I- IR bz .E O O 2 V a 0 O m x E 0 E 0 888888818° 8 - - 88 - - 8 - - -.1- - - -. - - -,. -,. - O 8 8 8 8 8 - - - 9 9 9 - - 888888888,E 8 - - - - - - - - - - - O - - - - - - - nddm+ic - - - - - - ono - - 8 8 o - - - - 2 8 - - 8888888888 — — — — — — — — — — - O - - - - - - - - - - - - - - - - - - - - - 8888888888 8 - - - - - - - - - - - 8888888888 - - 8 —8 F-8 --?T-8F-8 - - - - - - - - - - - - - - - - - -6 C5 CL mo E. 0 0 0 0 0 0 0 0 0 � 6 S 6m! 1 in 5 5 5 5 5 5 5 0 w w 0 E 6 �R �2 w z w 0 o �o m o I < D 0 L,2 w w 8881888888 '@ � a] O E E > ff�: I E o o E o J= a .2 mx 0 W 0 I c OB c 0 0 .8 x E E 0 0 EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD September 22, 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, September 22, 2014 at 9:02 a.m. in the Service Center Training Room, City of Denton Service Center, 901A Texas Street, Denton, Texas. Present: Chairman Dick Smith, Secretary Randy Robinson, Phil Gallivan, Lilia Bynum and Charles Jackson Ex Officio Members: Howard Martin, ACM Utilities Absent: George Campbell City Manager Vice Chair Billy Cheek and Barbara Russell OPEN MEETING: CONSENT AGENDA: 4. Receive a report, hold a discussion, and provide staff with direction concerning the approval of RFP 45570 and recommend award of a contract for the purchase of Directional Boring Services for Denton Municipal Electric (DME) and other City of Denton Departments; providing for the expenditure of funds therefore; and providing for an effective date (RFP 45570— One Year Contract with two one year automatic renewal periods unless canceled, for Directional Boring Services to Gardner Telecommunications, Inc., in a contracted amount not to exceed $1,531,410.00). Item 4 was pulled by Phil Gallivan. Gallivan stated at the point of extension does the price get renegotiated. Brent Heath, Exec Mgr of Energy Delivery, answered all terms and conditions remain the same. Because it is an RFP there is an ability to negotiate the price. If the entire amount is not needed, it will not be used. Heath reminded the Board that DME is 57% underground on all of the distribution system. Motion was made to approve item 4 by Board Member Gallivan with the second by Board Member Jackson. The vote was 5 -0 approved. Adjournment 9:45 a.m. ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A PUBLIC WORKS CONTRACT FOR DIRECTIONAL BORING SERVICES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5570- AWARDED TO GARDNER TELECOMMUNICATIONS, INC. (GTI), IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $1,531,410). WHEREAS, the City has solicited, received and tabulated competitive proposals for the construction 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 construction 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 construction 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 5570 Gardner Telecommunications, Inc. $1,531,410 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 construction 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 construction 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 5570 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 12014. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY p BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0588, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: October 7, 2014 SUBJECT Consider adoption of an ordinance awarding a contract under the Texas Multiple Award Schedule (TXMAS) Program for the purchase of mechanical (heating, ventilation and air conditioning), electrical, or plumbing (MEP) services to be performed at City of Denton facilities as awarded by the State of Texas Procurement and Support Services (Contract TXMAS 03FAC -10 -070); providing for the expenditure of funds therefor; and providing an effective date (File 5652- awarded to Brandt Companies, LLC, in the annual not -to- exceed amount of $1,500,000 for a three (3) year not -to- exceed amount of $4,500,000). FILE INFORMATION The mechanical, electrical, or plumbing (MEP) systems at many City facilities have become costly to maintain due to their age and usage. The MEP project services under this contract will be performed during times that will be the least disruptive to personnel and citizens utilizing the facility. The intent of these upcoming projects is to replace outdated, inefficient, or worn out assets. The benefit from these projects is the installation of higher efficiency equipment which translates to lower energy cost, less disruption to city employees and its citizens, and a higher comfort level to all who work in or visit City of Denton facilities. Staff is recommending Brandt Companies, LLC (Brandt) as the best value for the City for the following reasons: • Brandt has a proven track record with the City of completing jobs on -time and with minimal change orders. • Brandt performed the chiller replacement and chill water pipe replacement of the chilled water units that service City Hall, Emily Fowler Library, and the Civic Center as well as the lighting retrofit funded thru Energy Efficiency and Conservation Block Grants (EECBG). These large projects were primarily performed after normal operating hours and on weekends in order to cause the least amount of business interruption as possible. • Brandt can provide all needed disciplines required for the upcoming projects including but not limited to: mechanical, electrical, welding, and plumbing. City of Denton Page 1 of 3 Printed on 10/2/2014 File #: ID 14 -0588, Version: 1 • Brandt has staffing to provide twenty -four hour service during projects. The next planned MEP project is the replacement of two (2) ten ton Carrier heating, ventilation, and air conditioning (HVAC) units at the Center for Visual Arts. The art shows that utilize the facility require humidity and temperature considerations outside what is normal for the existing units. These units are also unable to meet the humidity control standards during the warm summer months to meet exhibitor requirements. This MEP replacement is estimated to cost $129,388. Brandt has included a one (1) year parts and labor warranty on workmanship and materials and a five (5) year warranty on the compressor. Any professional services for the MEP projects such as engineering design, will not be acquired through the TXMAS contract. These services will be contracted separately using qualified firms as needed. RECOMMENDATION Award a contract under the Texas Multiple Award Schedule (TXMAS) Program to Brandt Companies, LLC in the annual not -to- exceed amount of $1,500,000 for a three (3) year not -to- exceed amount of $4,500,000). PRINCIPAL PLACE OF BUSINESS Brandt Companies, LLC Carrollton, TX ESTIMATED SCHEDULE OF PROJECT TXMAS Contract 03FAC -10 -070 has an ending date of March 30, 2015. The contract does contain an option to renew for additional one (1) year periods. Staff will follow up with the State of Texas in early 2015 to ascertain the contract's renewal status. FISCAL INFORMATION Each project will be funded from the appropriate Capital Improvement Plan or Bond Fund account as quotes are obtained. EXHIBITS Exhibit 1: TXMAS Contract Exhibit 2: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: David Saltsman at 349 -7247. City of Denton Page 2 of 3 Printed on 10/2/2014 File M ID 14 -0588, Version: 1 City of Denton Page 3 of 3 Printed on 10/2/2014 h rvvm d by I cx:ls i''I EXHIBIT 1 �✓qt1 tyvvttugtgf "atatCmtov tuufvaataau: 3uaemr-ommi fa ,in ail "(it,bl,A, ,,, Buy 0 Search Agency /CO -OP Sign In -f 01 lrems Contract I et H tt TXMAS 10 03l: ` C0 7 Number TXMAS- 10- 03FAC070 Description Mechanical, Electrical, And Plumbing Services Category TxSmanBuy Type TXMAS Start Date 6/2'1 f2010 End Date 3/30/2015 Fed GS-21F-0137W Purchase Category Code PCC X (Agencies Only) Optional Renewal Terms This Texas Multiple Award Schedule (TXMAS) contract is renewed on the date that the governmental entity that awarded the underlying contract exercises any renewal options. All State of Texas terms and conditions will continue and apply to all renewall periods by mutual agreement. The contractor has certlfVed that the prices reflected In the contractor's catalog are the same as the prices contained In the most current modification to the underlying contract. Purchase Orders Only purchase orders issued through TxSmartBuy are eligible for contract pricing. Contractors cannot ship any products or provide services until issuance through TxSmartBuy and receipt of a Purchase Order. If a TXMAS contract does not have items available in the TxSmartBuy system, a quote order Mine item should be added to the can with an attachment that describes order detains. Order Limitation The contractor is not required to accept orders below the minimum listed below. Orders between the minimum and maximum lusted below are subject to the pricing of the underlying contract. For orders above the maximum, purchasing entitles are entitled to negotiate for lower prices than those fisted, Minimum Order - $100 Maximum Order - $'0,000,000 State Contracts All Texas Council for Purchasing from People with Disabilities contracts and Texas Correctional Industries (TCI) term contracts take precedence over this TXMAS contract. If similar products or services are listed on this TXMAS contract and a CPA Term contract, a determination should be made that will result in a best value purchase. CPA Contract Management Questions regarding contract management issues, price changes, amendments or other post -award concerns should be directed to TPASS TXMAS Program Texas Comptroller of Public Accounts (CPA) Phone: (512) 463 -3421 Emailarnae@cpaa. suite Is us Approved Products /Services Only products or services listed in the underlying contract may be purchased from this TXMAS contract, with one exception. incidental, off - schedule items may be purchased as "best value,. open market " items provided that they are necessary for product integration or product completeness. The purchasing entity is responsible for ensuring that the quoted price for such incidental items Is fair and reasonable. These incidental items may be added to the TXMAS purchase order If they are clearly labeled as "open market (OM), best value" items. Delivery 30 DAYS ARO: EXPEDITED: 1 DAY ARO FOB Point DESTINATION Compliant Products by Customer reserves the right to require new delivery or a refund in the event that materials or products not meeting specifications are discovered Contractor after payment has been made. Restocking Fee for Returned Refer to contract upon which TXMAS contract is based. Products Rebate Reporting Requirement Pursuant to Texas Government Code A"§ 2155.510(b), rebates generated from TXMAS contract purchases made in whole or in part with federal for Federal funds must be reported by the purchasiimg agency for reporting, and reconciliation purposes with the appropriate federal funding agency. Each quarter of the State's fiscal year (September I through August 31), TXMAS contractors rebate 0.73675% of their TXMAS sales to the State of Texas via the Texas Comptroller of Public Accounts (CPA). It Is the purchasing entity's responsibility to report the amount of rebate to the federal fund - provider using the above percent based on the total dollar value o€ the TXMAS purchase order. Example: A purchasing entity receives and uses federal funds of $50,000 to purchase items /services on a TXMAS contract. The purchasing entity must report to the federal fund - provider that a sales rebate of $369,37 ($50,000 " 0.73875`X, _ $365.37) will be paid to the State of Texas by the TXIMAS contractor. Contractor Performance The Texas Procurement and Support Services (TPASS), a division of the Comptroller of Public Accounts (CPA}, administers a vendor performance program for use by all customers per Texas Government Code (TGC), §2262.055, and 34 Texas Administrative Code (TAC), §20.108. The Vendor Performance relies on the customer's participation in gathering information on vendor performance. State agency customers shall report vendor Performance on purchases over $25,000 from contracts administered by CPA, or any other purchase over $25,000 made through delegated authority granted by CPA (TAC 20.108), or purchases exempt from CPA procurement rules and procedures. State agencies are additionally encouraged to report vendor performance on purchases under $25,000. Vendor Performance shall be reported through the C11'1A VENDOR R4ER ORIIAAIVCtE 1I' NC KIINC S V 1-IT! IA The purpose of the Vendor Performance Tracking System is to: Identify vendors that have exceptional performance " Aid purchasers in making a best value determination based on vendor past performance * Protect the state from vendors with unethical business prances ' Provide performance scores in four measurable categories for the CIUBL vendors * Track vendor performance for delegated and exempt purchases Contractor Infori °rratinn VID:13716529576 Contractor: The Brandt Companies, Llc Email: sawolfe @brandteng.com Phone: (972), 995 -6036 Address: Samuel Wolfe The Brandt Companies, Lip 1728 Briercroft Court Carrollton TX 75006 Texasgov I Statewide Search from the Texas State Library I Stale L"unk Policy I Texas Homeland Security I Texas Transparency I Report Fraud Susan Combs, Texas Comptroller •Vurnow on State Goverment • Cormor Us Privacy and So-my Policy I Accessiblllty Policy I Link Policy I Public Imformat— An I Texas Veterans Portal I Compact win Texans EXHIBIT 2 ORDINANCE NO. AN ORDINANCE AWARDING A CONTRACT UNDER THE TEXAS MULTIPLE AWARD SCHEDULE (TXMAS) PROGRAM FOR THE PURCHASE OF MECHANICAL, ELECTRICAL, OR PLUMBING (MEP) SERVICES TO BE PERFORMED AT CITY OF DENTON FACILITIES AS AWARDED BY THE STATE OF TEXAS PROCUREMENT AND SUPPORT SERVICES (CONTRACT TXMAS 03FAC -10 -070); PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5652— AWARDED TO BRANDT COMPANIES, LLC, IN THE ANNUAL NOT -TO- EXCEED AMOUNT OF $1,500,000 FOR A THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $4,500,000). WHEREAS, pursuant to Resolution 92 -019, the Texas Procurement and Support Services Division has solicited, received and tabulated competitive bids for the purchase of necessary materials, equipment, supplies or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies or services can be purchased by the City through the Texas Procurement and Support Services Division at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The materials, equipment, supplies, or services, shown in the File Number listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 5652 Brandt Companies, LLC $4,500,000 SECTION 2. By the acceptance and approval of the above numbered items set forth in File 5652, the City accepts the offer of the persons submitting the bids to the Texas Procurement and Support Services Division for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the Texas Procurement and Support Services Division, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in File 5652 wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the Texas Procurement and Support Services Division, 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 and standards contained in EXHIBIT 2 the Proposal submitted to the Texas Procurement and Support Services Division, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5652 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of 12014. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY _ A BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0589, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: October 7, 2014 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Electric Meters, Current Transformers, Meter Sockets, and Automatic Metering Infrastructure (AMI) Equipment for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5584- awarded to HD Supply Power Solutions in the three (3) year not -to- exceed amount of $4,307,685). The Public Utilities Board recommends approval (5 -0). RFP INFORMATION This item is for electric revenue meters and associated equipment which are required to add new customers to the electric system and to maintain and update existing metering equipment. Requests for Proposals were sent to 186 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. Four (4) proposals were received. The proposals were evaluated based upon published criteria including price, project schedule, compliance with specifications, and indicators of probable performance. A Best and Final Offer (BAFO) was conducted with no change in pricing from the highest ranked vendor. HD Supply Power Solutions ranked the highest and was determined to be the best value for the City (Exhibit 1- EvaluationBAFO Sheet). PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On September 22, 2014, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve a contract with to HD Supply Power Solutions in the three (3) year not -to- exceed amount of $4,307,685. This amount is based on estimated quantities for all line items included in RFP and previous spend history over the last contract period. City of Denton Page 1 of 2 Printed on 10/2/2014 File #: ID 14 -0589, Version: 1 PRINCIPAL PLACE OF BUSINESS HD Supply Power Solutions Corinth, TX ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) 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 provided through this contract will be funded from project accounts. Purchase orders will be issued on an as needed basis. EXHIBITS Exhibit l: Evaluation/Best and Final Offer Exhibit 2: Public Utilities Board Draft Minutes Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Brent Heath at 349 -7180. 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K a s tD `o m m m W a �°o riOi O I.- u m m M m M m m M o v v N v v v v v v v v a N W u 0 u c z0) c 3: o C5 } \{ , /] }@, 2222 z 0) u I 0 0 CL U 0 x 0 < x 0) z c 0 0 cr 12 x Lij 0 u V; CL I.- - LLJ 0 I 16 C, �� \ / \�\ � IR I I }; }�� \ C5 } \{ , /] }@, 2222 z 0) u I 0 0 CL U 0 x 0 < x 0) z c 0 0 cr 12 x Lij 0 u V; CL I.- - LLJ 0 I 16 C, m � /] / @, � H �� \ / \�\ � IR I I }; m � /] / @, � H E a 0 - - - - \�4} � IR I I ol� I I E a 0 - - - - .tl c5 1 m 0 ID z < LU \ \\ 0 0 2 LU u \ \j \ \ \�-- - F- `! ®)))k2 0 c E 0 C: .0 6 6 4 "i CS \�} cr� IR I I ol� I I .tl c5 1 m 0 ID z < LU \ \\ 0 0 2 LU u \ \j \ \ \�-- - F- `! ®)))k2 0 c E 0 C: .0 6 6 4 "i CS EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD September 22, 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, September 22, 2014 at 9:02 a.m. in the Service Center Training Room, City of Denton Service Center, 901A Texas Street, Denton, Texas. Present: Chairman Dick Smith, Secretary Randy Robinson, Phil Gallivan, Lilia Bynum and Charles Jackson Ex Officio Members: Howard Martin, ACM Utilities Absent: George Campbell City Manager Vice Chair Billy Cheek and Barbara Russell OPEN MEETING: CONSENT AGENDA: 2. Consider a recommendation of approval awarding a contract with HD Supply Power Solutions of Corinth, Texas, for the purchase of electric revenue meters and associated equipment as stated in RFP 45584 for a three agreement in the not to exceed amount of $4,307,685. Item 2 was pulled by Randy Robinson. Robinson asked for an explanation, seems like a lot of money for just meters. Phil Williams, General Manager DME, answered it is more than meters it is associated equipment as well. Residential meters are about $140. Commercial and industrial meters with the associated equipment are about $15,000. The meter change out program has about 4,000 meters left to be changed out by the end of next spring. After that it will be maintenance going forward. Smith asked if the residential meters are smart meters. Williams answered no they are purchased from HD supply and they are supplied to Trillia and they put in the communication device. Smith then asked if the commercial meters are smart meters. JR Richardson, Metering/Comm. /Spec Proj. Supt, answered some of the commercial meters have the communication technology. Some of the meters have software that is called MD90 which has a way to dial up and getting access without going out to read the meters. The MD90 software has been used about 10 years. Motion was made to approve item 2 by Board Member Robinson with the second by Board Member Bynum. The vote was 5 -0 approved. Adjournment 9:45 a.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE SUPPLY OF ELECTRIC METERS, CURRENT TRANSFORMERS, METER SOCKETS, AND AUTOMATIC METERING INFRASTRUCTURE (AMI) EQUIPMENT FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5584- AWARDED TO HD SUPPLY POWER SOLUTIONS IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $4,307,685). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of Electric Meters, Current Transformers, Meter Sockets, and Automatic Metering Infrastructure Equipment 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 CONTRACTOR AMOUNT 5584 HD Supply Power Solutions $4,307,685 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 EXHIBIT 3 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 File 5584 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 proposals. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12014 CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY _ A BY: EXHIBIT 4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND HD SUPPLY POWER SOLUTIONS (RFP # 5584) THIS CONTRACT is made and entered into this day of A.D., 20 , by and between HD Suply Power Solutions a corporation, whose address is 2800 Quail 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 # 5584 Supply of Electric Meters, CTs, Meter Sockets an AMI Equipment, 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 5584 (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." 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 M APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY RFP 5584 SUPPLIER Al-)Tl-f0WZEVrSlGNATURE III i0 E NtJMill„~rR FAX NUMBER CITY OF DENTON, TEXAS BY: GEORGE C..... ..... C. CAMPBELL, CITY MANAGER Date:. EXHIBIT 4 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�2cityofdenton .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. EXHIBIT 4 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�2cityofdenton.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 $4,307,685. 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. EXHIBIT 4 Exhihit R 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. EXHIBIT 4 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 EXHIBIT 4 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: EXHIBIT 4 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 bome 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/"E 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 forth, 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. EXHIBIT 4 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. EXHIBIT 4 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 EXHIBIT 4 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 EXHIBIT 4 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 forth 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. EXHIBIT 4 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. EXHIBIT 4 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 forth, 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 EXHIBIT 4 being the intention of the parties that there are no third parry 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 EXHIBIT 4 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 EXHIBIT 4 (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. hM2://www.access.gj2o.gov/davisbacon/tx.html 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 Forth 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 EXHIBIT 4 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. 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. Should a conflict arise between the PO, RFP document, supplier terms, drawings, specifications, construction document, or contract; the terms and conditions set forth in the City of Denton General Conditions and the negotiated contract shall prevail. C MTn4 RFP for the Supply of Electric Meters, CT's, Meter Sockets, AMI Equipment ANTAXXXVEKKKE-CONFLICT OF INTEREST QUESTIONNAIRE 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 CSF I 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 0overtiment 11 d . An offense under this section is a Class C misdemeanor. Name of person who has a business relationship with local governmental entity. �. ❑7 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 aapprrol)6iaEe Jilin[,; authority not later than the 7a' business day after the daatc the originally filed questionnaire becomes incomplctc or iat accurate.�) / j Name of local government officer with whom filer has an employment or bus sees relationship. Ni tic of Officer This section, (item 3 including subparts A, B„ C & D), rnu k�7pleted for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a) LO, �w Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this secti d" receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? El Yes 1-- o B. Is the filer of the questionnaire receiv06 or likely to receive taxable income, other than investment income, from or at the direction of the local government officer narne'4,6 this section AND the taxable income is not received from the local governmental entity? ,r El Yes" El No C. Is the filer of this question 're employed by a corporation or other business entity with respect to which the local government officer serves as an officer or, arector, or holds an ownership of 10 percent or more? El, No D. Describp„,ach affiliation or business relationship. Signature of person doing business with the governmental entity Date RFP 5584 - Main Document Page 15 of 16 EXHIBIT 4 SUPPLY. POWER OLUTI S 2800 Quail Run Dr, Ste. 100, Corinth, TX 76208 RFP #5584 - RFP FOR THE SUPPLY OF ELECTRIC METERS, CT'S, METER SOCKETS, AND AMI EQUIPMENT FOR THE CITY OF DENTON Inside Sales Scott Price Phone: (940)270 -7243 Fax: (866)617 -9147 david.Price @hdsuPPlv.com Outside Sales Jason Leake Phone: (940)765 -4255 lason.leake @hdsupply.com District Sales Manager Daniel Brown Cell Phone: (806)549 -7681 Office: (940)270 -7289 Fax: (866)617 -9139 daniel.brown @hdsupply.com For more information, please visit: https:/ /www.hdsupplypowersolutions.com /site /login.aspx 1)4A J /I- IZ RM WI Respon q&ffyy Name: HD Supply Power Solutions RFP 5584 - Pricing Sheet for SUPPLY OF ELECTRIC METERS, CT's, METER SOCKETS, AMI EQUIPMENT 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)„ Estimated Item # I EST. ANNUAL Product Description Delivery ARO QTY UOM Unit Price Extended Price (Days) SECTION A- ELECTRIC METERS with Trilliant Secure Mesh NIC card 1 20 EA Meter, Single Phase, Class 100, 120V, 2 wire, 1s $ 134.00 $ 2,680.00 8 -10 Weeks 2 10 EA Meter, Single Phase, Class 100, 120V, 2 wire, 1s, w/ kW Demand $ 139.00 $ 1,390.00 8 -10 Weeks Meter, Single Phase, Class 200, 240V, 3 wire, 2s with Disconnect under the 3 7,000 EA cover $ 142.00 $ 994,000.00 [8-10 Weeks 4 510 EA Meter, Single Phase, Class 200, 240V, 3 wire, 2s, w/ kW Demand $ 131.00 S 66,810.00 1 8 -10 Weeks 5 40 EA Meter, Single Phase, Class 200, 120 -480V, 3 wire, 2s, w/ kW Demand $ 311.00 $ 12,440.00 8 -10 Weeks 6 20 EA Meter, Single Phase, Class 320, 240V, 3 wire, 2s S 139.00 $ 2,780.00 8 -10 Weeks 7 40 EA Meter, Single Phase, Class 320, 120 -480V, 3 wire, 2s, w/ kW Demand $ 139.00 $ 5,560.00 8 -10 Weeks �. 8 .� 20 EA .� Meter, Single Phase, Class 20, 120 -480V, 3 wire, 4s, w/ kW Demand $ 311.00 $ 6,220.00 8 -10 Weeks ter, Single Phase, Class 200, 120 -480V, 3 wire, 12s/25s with Disconnect 9......... 30 EA the cover $ 311.00 $ 9,330.00 8 -10 Weeks 10 40 EA ter, Single Phase, Class 200, 120 -480V, 3 wire, 12s/25s, w/ kW Demand S 311.00 $ 12,440.00 8 -10 Weeks 11 300 EA [under ter, Three Phase, Class 200, 120 -480V, 4 wire, 15 -16s, w/ kW Demand S 311.00 $ 93,300.00 8 -10 Weeks 12 48 EA ter, Three Phase, Class 320, 120 -480V, 4 wire, 15 -16s, w/ kW Demand $ 311.00 $ 14,928.00 8 -10 weeks13 200 EA ter, Three Phase, Class 20, 120 -480V, 4 wire, 8 -9s, w/ kW Demand S 311.00 $ 62,200.00 8 -10 Weeks 14 tion: KYZ Pulse Initiator Board $ 61.00 S 61.00 2 -4 Weeks SECTION B- ADVANCED METERS 15 50 EA Meter, Three Phase, Class 20, 120 -480V, 4 wire, 8 -9s, kWH, kW /kVA Demand $ 422.00 $ 21,100.00 8 -10 Weeks 16 Option: KYZ Pulse Initiator Board $ 61.00 $ 61.00 2 -4 Weeks Meter, Three Phase, Class 20, 120 -480V, 4 wire, 8 -9s, kW /kVA Demand, 17 4 EA w /capability to totalize pulses $ 489.00 $ 1,956.00 8 -10 Weeks 18 EA Option: Phone Modem $ 172.00 $ 172.00 2 -4 Weeks 19 EA Option: KYZ Pulse Initiator Board (min 2 sets of pulses kW /kVA) $ 95.00 $ 95.00 2 -4 Weeks SECTION C- ELECTRIC SOCKETS Socket, Ring -less, 6 Terminal, 20 amp, One piece cover, Closure Plate, Seven 20 40 EA Pole Test switch(Milbank #TS07 -0105 or equivalent), Pre -wired with DME's color -coded wiring diagram for a 4S meter $ 187.00 S 7,480.00 4 -6 Weeks Socket, Ring -less, 13 Terminal, 20 amp, One piece cover, Closure Plate, Ten 21 120 EA Pole Test switch(Milbank #TS10 -0109 or equivalent), Pre -wired with DME's color -coded wiring diagram for a 8 -9S meter 1 $ 215.00 $ 25,800.00 4 -6 Weeks SECTION D- SECONDARY INSTRUMENT RATED TRANSFORMERS Current Transformers: 600 volt, over - bushing type 200:5, ANSI meter 22 60 EA accuracy class .313-0.1, rating factor of 4.0 @ 30 C. $ 68.00 $ 4,080.00 4 Weeks Current Transformers: 600 volt, over - bushing type 200:5, ANSI meter 23 60 EA accuracy class 36 -0.1, rating factor of 4.0 @ 30 C, Extended range (4 % -40% at .6 accuracy) $ 73.00 $ 4,380.00 4 Weeks Current v 300:5, ANSI meter 24 36 EA fgyp accuacy f 3B -0.2, rating factor o 4.0 @ 30 C. class a $ 68.00 $ 2,448.00 4 Weeks Current Transformers: 600 volt, over - bushing type 300:5, ANSI meter 25 36 EA accuracy class .3B -0.2, rating factor of 4,0 @ 30 C. Extended range (4 % -40% at .6 accuracy) $ 73.00 $ 2,628.00 4 Weeks Current Transformers: 600 volt, over - bushing type 400:5, ANSI meter 26 36 EA accuracy class .313-0.2, rating factor of 4.0 @ 30 C. $ 68.00 $ 2,448.00 4 Weeks Current Transformers: 600 volt, over - bushing type 400:5, ANSI meter 27 36 EA accuracy class 3B -0.2, rating factor of 4.0 @ 30 C. Extended range (4 % -40% at .6 accuracy) $ 73.00 $ 2,628.00 4 Weeks Current Transformers: 600 volt, over - bushing type 600:5, ANSI meter 28 12 EA accuracy class .3B -0.5, rating factor of 3.0 @ 30 C. S 68.00 $ 816.00 Current Transformers: 600 volt, over - bushing type 600:5, ANSI meter EWeeks 29 12 EA accuracy class .3B -0.5, rating factor of 3.0 @ 30 C. Extended range (4 % -40% at .6 accuracy) $ 73.00 $ 876.00 Transformers: gyp 800:5, ANSI meter 30 12 EA accuracy class .3 B -0.2, rating factor 3 0 @ 30 Ce y g $ 68.00 $ 816.00 4 Weeks Current Transformers: 600 volt, over - bushing type 800:5, ANSI meter 31 12 EA accuracy class .313-0.2, rating factor of 3.0 @ 30 C. Extended range (4 % -40% at .6 accuracy) $ 73.00 $ 876.00 4 Weeks Current Transformers: 600 volt, over - bushing type 1000:5, ANSI meter 32 6 EA accuracy class .3B -0.5, rating factor of 2.0 @ 30 C. S 68.00 $ 408.00 4 Weeks ME1WXXX Respon f#tfi pyy Name: HD Supply Power Solutions RFP 5584 - Pricing Sheet for SUPPLY OF ELECTRIC METERS, CT's, METER SOCKETS, AMI EQUIPMENT 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): Estimated Item # EST. ANNUAL Product Description Delivery ARO QTY UOM Unit Price Extended Price (Days) Current Transformers: 600 volt, over - bushing type 1000:5, ANSI meter 33 6 EA accuracy class .36 -0.5, rating factor of 2.0 @ 30 C. Extended range (4 % -40% at .6 accuracy) 1 $ 70.00 $ 420.00 4 Weeks Current Transformers: 600 volt, over - bushing type 1200:5, ANSI meter 34 6 EA accuracy class .313-0.9, rating factor of 2,0 @ 30 C. $ 68.00 $ 408.00 4 Weeks Current Transformers: 600 volt, over - bushing type 1200:5, ANSI meter 35 6 EA accuracy class .313-0.9, rating factor of 2.0 @ 30 C. Extended range (4 % -40% at .6 accuracy) $ 70.00 $ 420.00 4 Weeks 36 6 EA Current Transformers: 600 volt, over - bushing type 1500:5, ANSI meter accuracy class .313-0.9, rating factor of 2.0 @ 30 C. $ 68.00 S 408.00 4 Weeks Current Transformers: 600 volt, over - bushing type 1500:5, ANSI meter 37 6 EA accuracy class .313-0.9, rating factor of 2.0 @ 30 C. Extended range (4 % -40% at .6 accuracy,) $ 70.00 $ 420.00 4 Weeks Current Transformers: 600 volt, over - bushing type 2000:5, ANSI meter 38 6 EA accuracy class .313-1,8, rating factor of 1.5 @ 30 C. $ 68.00 $ 408.00 4 Weeks Current Transformers: 600 volt, over - bushing type 2000:5, ANSI meter 39 6 EA accuracy class 313-1.8, rating factor of 1.5 @ 30 C. Extended range (4 % -40% at .6 accuracy) $ 70.00 $ 420.00 4 Weeks 40 36 EA Current Transformers: 100:5 ratio, 600 volt, window type. 2.5" window, ANSI meter accuracy class .313-0,5, rating factor of 4.0 @ 30 C. $ 77.00 $ 2,772.00 4 Weeks W m_ Current Transformers: 100:5 ratio, 600 volt, window type. 2.5" window, ANSI 41 36 EA meter accuracy class .36 -0.5, rating factor of 4.0 @ 30 C, Extended range (4 % 40% at .6 accuracy) $ 66.00 5 2,376.00 4 Weeks 42 60 EA Current Transformers: 200:5 ratio, 600 volt, window type. 2.5" window, ANSI meter accuracy class .313-0.5, rating factor of 4.0 @ 30 C. $ 70.00 $ 4,200.00 4 Weeks _J Current Transformers: 200:5 ratio, 600 volt, window type. 2.5" window, ANSI 43 60 EA meter accuracy class .3B -0,5, rating factor of 4,0 @ 30 C. Extended range (4 %• 40% at .6 accuracy) $ 66.00 $ 3,960.00 4 Weeks 44 36 EA Current Transformers: 300:5 ratio, 600 volt, window type, 3.0" window, ANSI meter accuracy class 313-0.5, rating factor of 3.0 @ 30 C. $ 70.00 $ 2,520.00 4 Weeks Current Transformers: 300:5 ratio, 600 volt, window type. 3.0" window, ANSI 45 36 EA meter accuracy class .3B -0.5, rating factor of 3.0 @ 30 C. Extended range (4% 40% at .6 accuracy) $ 66.00 $ 2,376.00 4 Weeks 46 6 EA Current Transformers: 400:5 ratio, 600 volt, window type. 3.0" window, ANSI Meter accuracy class .313-0.5, rating factor of 4.0 @ 30 C. $ 66.00 S 396.00 4 Weeks Current Transformers: 400:5 ratio, 600 volt, window type, 3.0" window, ANSI 47 6 EA Meter accuracy class .313-0.5, rating factor of 4.0 @ 30 C. Extended range (4% 40% at .6 accuracy) $ 66.00 $ 396.00 4 Weeks SECTION E- PRIMARY INSTRUMENT RATED TRANSFORMERS Voltage Transformers: ANSI accuracy class 0.3 thru Burden Z, Thermal Rating 48 6 EA 1500 VA at 30 degrees C ambient, 8400:120 voltage rating, single bushing, 110 KV BIL, ABB Type VOZ -11M, Part #7525A91G07 or equal $ 770.00 - $ 4,620.00 6 Weeks - GE www Current Transformers: ANSI accuracy class .3 thru B -0.5, 110 KV, BIL, 13,800 49 6 EA nominal or 15 KV acceptable $ 600.00 $ 3,600.00 6 Weeks - GE 3 15:5 ABB Type KON -11, Part #7524A25G02 or equal $ 600.00 $ 1,800.00 6 Weeks - GE 3 20:5 ABB Type KON -11, Part #7524A25G03 or equal $ 600.00 $ 1,800.00 6 Weeks - GE r50 3 25:5 ABB Type KON -11, Part #7524A25G04 or equal $ 600.00 $ 1,800.00 6 Weeks - GE 3 30:5 ABB Type KON -11, Part #7524A25G05 or equal $ 600.00 $ 1,800.00 6 Weeks - GE 1 3 rEA 40:5 ABB Type KON -11, Part #7524A25G06 or equal $ 600.00 $ 1,800.00 6 Weeks - GE S5 3 50:5 ABB Type KON -11, Part #7524A25G07 or equal $ 600.00 $ 1,800.00 6 Weeks - GE 3 100:5 ABB Type KON -11, Part #7524A25G09 or equal $ 600.00 $ 1,800.00 6 Weeks - GE 57 3 200:5 ABB Type KON -11, Part #7524A25G11 or equal $ 600.00 $ 1,800.00 - 6 Weeks - GE SECTION F- TRILLIA,NT' SECURE MESH AM] EQUIPMENT _- .. ........ 58 1 EA �- Trilliant Secure Mesh Extender Bridge $ 9,237.00 S 9,237.00 112 59 1 EA Trilliant Secure Mesh Repeaters $ 610.00 $ 610.00 112 Mi"I Responft pjny Name: HD Supply Power Solutions RFP 5584 - Pricing Sheet for SUPPLY OF ELECTRIC METERS, CT's, METER SOCKETS, AMI EQUIPMENT The respondent shall complete the following section, which directly corresponds to the specifications. The contractor shall not make changes to this format. Product Proposal Pricincl (FIBS DESTINATION); Item # EST, ANNUAL qry UOM 60 1 EA Product Description Trilliant Secure Mesh Estimated Delivery ARO Unit Price Extended Price (Days) $ 18,649.00 $ 18,649.00 112 Total Cost of Products (Annual) $ 1,436,223.00 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. "NOTE: PRICING SHALL INCLUDE ALL COSTS TO DELIVER GOODS AS SPECIFIED FOB DESTINATION. EXHIBIT 4 City of Denton RFP for the Supply of Electric Meters, CT's, Meter Sockets, AMI Equipment SOLICITATION CHECKLIST Check when Task to be Completed by Respondent Completed—-. Exhibit 1 —1 s icin sheet . . . ...... Review Exhibit 2 —Gen Provisions and Terms and Conditions Review Exhibit 3 — Scope of Work/TechnicalS')cciftcatioiis . ................. . . . ...... - I_- -- Review Exhibit 4 — Technical D immii N Nib and Plans (if mlicable Submission of Exhibit Site For ifq�� .. ........ Form .... . . ....... / Review Exhibit 6 — Federal Grant Requirernents(if �ij�p Lic lej Cover sheet Solicitation number . . . . . .......... Solicitation name V Firm name Firm address Contact name .......... . Contact &1one Contact fax .......... Website address Contact email address-- V Solicitation Checklist .......... . . ............ Attachment A- B sOverview tiolinaire QueF Documnt how firm meets mini m um ( L1,q'Ififications (Section 3) DetaiLtq suli evaluation criteria Attachment B — 1.`!xception Form . .... . .......... Attachment C — S�af Record Questionnaire Attachment D —Reference Form Attachment E —Conflict of Interest Questionnaire Form Attachment F - Acknowled� pnent. .......... .. ........... Acknn�� Addenda ........... . 1 ow or submission si nc�i by authorized officer, in the order (3) copies of the submission Electronic submission of response via co....., omputer memory device or email to V (Section ..... ...... .... . ..... ........... . . I Email pricing sheet (Exhibi( 1) to cjtyoJd.e.n-1op,.,cotn Submit response, with tabs marking each section, in the following order: RFP 5584 - Main Document Page 10 of 16 EXHIBIT 4 City of Denton RFP for the Supply of Electric Meters, CT's, Meter Sockets, AMI Equipment Aj 0MK A- BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS 1. Contractor Legal Name (for contracting purposes): LIN Stpp `a 2. Subsidiary of: N% 3. Organization Class (circle): �Wt.Flersltrp , Corporation Individual Association 4. Tax Payer ID #: d& - 01006S-1 5. Date Established: 1953 (Te..".1, /kc .) 6. Historically Underutilized Business: Yes oto Does your any have an established physical presence in the State of Texas, or the City of Denton? Yes r No, in which? S � �. I—( 8. Please provide a detailed listing of all products and/or services that your company provides. ill -1 %e ekCIY7 4J WV/ 6y"f1 1b&1or, wi /A S14-(11^ e4 yr7' ,emirs 7�D QSS i St lv, ;7 A 1pf-14 44Y aka secandc"Y /keff�+► `t%°�dC �.s 9. 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 10. 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)° 11. Have you ever had a contract terminated by the Owner? If so, where and why? Give name and telephone number (s) of Owner (s). �j", 12. 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? Boni ?p doe t r l l ml ,�tl l ,1 _tax level 1 ,.mp6cwt1ue.._ 1. `x.26 AJIA RFP 5584 - Main Document Page 11 of 16 EXHIBIT 4 City of Denton RFP for the Supply of Electric Meters, CT's, Meter Sockets, AMI Equipment 13. 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. Responding firms principle place of business: �,rpv Q,,&, / R,n / 97-C 100 Cor-1h-tA,W 7 aOr b. Company's majority owner principle place of business: #'1A c. Ultimate Parent Company's principle place of business: 3/a o ei /vW /cw 71k, 6f1 3o 33 9 26. Provide details on how firm meets the minimum qualifications stated in Section 3; including copies of professional licenses (Additional attachments may be included for reference). 27. Provide details to support the evaluation criteria, including experience and delivery. 14#0_4141 C/ RFP 5584 - Main Document Page 12 of 16 EXHIBIT 4 Services Provided by HD Supply (Response to 27 on Business Overview) HD Supply Power Solutions is a full -line electrical utilities stocking distributor specializing in low, medium and high voltage equipment. HD Supply also offers turnkey automation solutions and employees two electrical engineers out of our Corinth, TX office. HD Supply has managed several annual blankets for the City of Denton in the past, to include fault indicators and Burndy splices and lugs. In addition to the City of Denton, HD Supply has handled similar annual blankets for City Public Service in San Antonio and Lubbock Power and Light in Lubbock. For those two cities we have managed numerous transformer, pole, wire, hardware and automation blankets and projects. We currently manage the following blankets and agreements: CPS — Transformers and miscellaneous hardware items City of Lubbock — Steel poles, S &C Reclosers and metering equipment City of San Augustine — All automation and metering set needs on demand, with delivery within 48 hours CoSery Electric (co -op) — On -site alliance partner, provide all daily materials and special equipment Sharyland Utilities — On -site alliance partner, provide all daily materials and special equipment Lamar Electric - On -site alliance partner, provide all daily materials and special equipment Bird Electric (contractor) - On -site alliance partner, provide all daily materials and special equipment Centerpoint Energy — On -site alliance partner, sole- source distribution Oncor Energy — On -site alliance partner, manage materials and warehouse logistics City of Brownfield — Daily material bids and tool blankets Additional experience information and references are available upon request. Daniel Brown District Sales Manager EXHIBIT 4 City of Denton RFP for the Supply of Electric Meters, CT's, Meter Sockets, AMI Equipment P1.1441114 0114C, *&*] 01 • W Any exceptions taken to this solicitation must be itemized on the lines below. Additional pages may be added as needed. If there are no exceptions, please sign where indicated at the bottom of the page. Item # Description Av e" 1� ST . ......... .27 ............. . . . . . . . . ........... . . ,,Jc ......... ........ . . . P-0 3 3 0 A e" 1�v ........... . . . ................ . .. .......... . . . . . . . ................ . . .......... 1-L ....... ..... . ". - - ------ j ........... . ..... -"-- . ..................... 7 .... . . .. . . ............. ......... . . ....... 'y c —Xi6 . 114, -140 ................. -A —2 ............ ;9 6 1-' 51pec sAxel- z&*d—e-cl ........ . . . . -'S'ign Wre No Exceptions taken to this solicitation. Signature Company Company . . ....... . '-iO 4- 1111111-1 11 -1 Date Date RFP 5584 - Main Document Page 13 of 16 EXHIBIT 4 Standard IEEE C57.13.6 Accuracy 0.30 @ BXY; RF4.0 060, 0 396 Accuracy Reg 111.1 03t) .. . ......... 0 Is 06% Accuracy .......... AJ Rsgmon 1, tj�)% 206% 30 6 QY6 2 = 0 15 U V 030 .. ............ 060 10% ;111..0 20 TO 40, Rofing Factor GE ITI Encompass Accuracy 0.30 @ BXY; RF 0.4 - 4.0 Example: Meter shop needs a current transformer for a 200 Amp service The ITI Encompass current transformer will meter at 0.3% IEEE 057.13 accuracy over a rating factor (RIF) range as large as 0.4 to 4.0 This is a secondary current range of 2 amps to 20 amps. The required IEEE 057,13 rating at 10% is met at 0.2 amps on the secondary (10% of 2 amps, the lowest RN, and in fact, the Encompass CT will hold 0.6% accuracy down to 4% of rated current. Use the ITI Encompass with C20 transformer rated meters • The GE KV2c offers full 0,2% accuracy over the entire 10x range of Encompass rating factor • Other meters must be applied at the traditional ANSI C57.13 range (It is possible that a supplier load curve can be used to verify extended range of operating accuracy) Option 1: Standard JAB-OC 200:5 WIRIF of 4A 0.6% accuracy from 20 to 200 A. 0.3% accuracy from 200 to 800 A. Option 2: Encompass JAB-OW 500:5 WRIF of 0.4-4.0: 0.6% accuracy from 20 to 200 A. 0.3% accuracy from 200 to 2000 A. Even at a low ratio of 200:5, the Encompass meets the standard on the low current side and more than doubles the performance at higher current. mmmr . � 0 60 0 6% A uiracyll 03% Accuracy Reg�on uu Reguon 030 . . ..... .2 01's 306% 015 0 30 11 m 0 60[ 4 11, 0 20 3,01 40 Raton g Factor Example: Meter shop needs a current transformer for a 200 Amp service The ITI Encompass current transformer will meter at 0.3% IEEE 057.13 accuracy over a rating factor (RIF) range as large as 0.4 to 4.0 This is a secondary current range of 2 amps to 20 amps. The required IEEE 057,13 rating at 10% is met at 0.2 amps on the secondary (10% of 2 amps, the lowest RN, and in fact, the Encompass CT will hold 0.6% accuracy down to 4% of rated current. Use the ITI Encompass with C20 transformer rated meters • The GE KV2c offers full 0,2% accuracy over the entire 10x range of Encompass rating factor • Other meters must be applied at the traditional ANSI C57.13 range (It is possible that a supplier load curve can be used to verify extended range of operating accuracy) Option 1: Standard JAB-OC 200:5 WIRIF of 4A 0.6% accuracy from 20 to 200 A. 0.3% accuracy from 200 to 800 A. Option 2: Encompass JAB-OW 500:5 WRIF of 0.4-4.0: 0.6% accuracy from 20 to 200 A. 0.3% accuracy from 200 to 2000 A. Even at a low ratio of 200:5, the Encompass meets the standard on the low current side and more than doubles the performance at higher current. mmmr . � EXHIBIT 4 City of Denton RFP for the Supply of Electric Meters, CT's, Meter Sockets, AMI Equipment ]k1XK0INMNX)0CREFERENCES 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 solicitation. REFERENCE ONE GOVERNMENT/COMPANY NAME: COS V LOCATION: CONTACT PERSON AND TITLE: —Ay-1-C TELEPHONE N tJ M 13 F, R SCOPE OF WORK: CONTRACT PERIOD: ------ 2". REFERENCE TWO ,9&a6 e- GOVERNMENT/COMPANY NAME: 1,a, LOCATION: _7'�x . . ..... . . 01 CONTACT PERSON AND TITLE: AVAIAIVef TELEPHONE NUMBER: rgz6)7m-,j? mm. SCOPE OF WORK: „ ,'`�'..ww° ..�� `.�° CONTRACT PERIOD: REFERENCE THREE GOVERNMENT/COMPANY NAME: 6ry 0F6,eez-:2o kia-F - 6&-zt -5, LOCATION: CONTACT PERSON AND TITLE: TELEPHONE NUMBER: SCOPE OF WORK: CONTRACT PERIOD: RFP 5584 - Main Document Page 14 of 16 EXHIBIT 4 City of Denton RFP for the Supply of Electric Meters, CT's, Meter Sockets, AMI Equipment - ACKNOWLEDGEMENT The undersigned agrees this submission becomes the property of the City of Denton after the official opening. The undersigned affirms he has familiarized himself with the specification, drawings, exhibits and other documents; the local conditions under which the work is to be performed; satisfied himself of the conditions of delivery, handling and storage of materials and equipment; and all other matters that will be required for the work before submitting a response. The undersigned agrees, if this submission 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 specification. The period for acceptance of this submission will be 120 calendar days unless a different period is noted. The undersigned affirms that they are duly authorized to execute this contract, that this submission has not been prepared in collusion with any other respondent, nor any employee of the City of Denton, and that the contents of this submission have not been communicated to any other respondent or to any employee of the City of Denton prior to the acceptance of this submission. 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 se ., 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, all exhibits and attachments contained in this solicitation package. The undersigned agrees that the solicitation package 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 response. I certify that I have made no willful misrepresentations in this submission, nor have I withheld information in my statements and answers to questions. I am aware that the information given by me in this submission will be investigated, with my full permission, and that any misrepresentations or omissions may cause my submission to be rejected. Acknowledge receipt of following addenda to the solicitation: Addendum No 1 Dated Addendum No 2 Dated Addendum No 3 Dated NAME AND ADDRESS OF COMPANY: A SZ X60 Tel. No. 20 Email. don )Il say d Received Received Received AUTHORIZED 'A`11 TATIVE: Signature:.... Date � ro.: J ..,. ,,°°�� �" Vim_ „ Name � �' 'l L3Y Title ' ICS- � fiG _l e ..... a Fax No. RFP 5584 - Main Document Page 16 of 16 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0590, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: October 7, 2014 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Electric Utility Overhead and Underground Distribution Transformers for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5347- awarded to Techline, Inc. in the three (3) year not -to- exceed amount of $4,500,000). The Public Utilities Board recommends approval (5 -0). RFP INFORMATION Denton Municipal Electric (DME) uses single -phase and three -phase distribution transformers in overhead or underground configurations to provide electric service to customers. Transformers ordered and used by DME are purchased based on varied electrical demands and secondary voltages listed in DME's Tariffs and Electric Service Standards as requested or needed by the customer. Requests for Proposals were sent to 186 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Four (4) proposals meeting specifications were received. The proposals were evaluated based upon a loss calculation determining actual cost to the City, as well as published criteria including delivery timeframe, compliance with specifications, and indicators of probable performance. Factors included in the loss calculation are price, calculated losses which provide operational cost insight associated with a manufacturer's design of their products, timeframe to deliver the products once a purchase order has been cut, and the quality of the proposal provided by the bidder. The manufacture of transformers requires a long lead time - usually 2 -3 months, therefore, delivery time frame and past performance are critical factors for this evaluating this commodity. A Best and Final Offer (BAFO) was conducted which resulted in various line item changes by three of the respondents. Techline, Inc. was ranked with the highest score and determined to be the best value for the City (Exhibit 1- Evaluation/BAFO Sheet). PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On September 22, 2014, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. City of Denton Page 1 of 2 Printed on 10/2/2014 File #: ID 14 -0590, Version: 1 RECOMMENDATION Approve a contract with Techline, Inc. in the three (3) year not -to- exceed amount of $4,500,000. This amount is based on the purchase history for items included in RFP, but quantities will vary depending on needs as they arise. PRINCIPAL PLACE OF BUSINESS Techline, Inc. Ft. Worth, TX ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) 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 transformers will be funded from Denton Municipal Electric's 2014 -2017 Capital Improvement Plan operational budget and will be ordered as needed. FYHIRITC Exhibit l: Evaluation/Best and Final Offer Exhibit 2: Public Utilities Board Draft Minutes Exhibit 3: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Brent Heath at 349 -7180. City of Denton Page 2 of 2 Printed on 10/2/2014 z ; ol .j uj ol U. co X o O O 6L U 8x Q 0 'o s X t F- 9 9 9 9 9 o o o oo 8 oo o o o . . . o. o. v $ 1 4 c� IQ IQ o c o o U U u o I o o o li o 6 o 6 o o 1� 3 o ci o 1� 6 16 o a N - o - I I m - I - I . , - o m , - . . . , , - - . , - . , . - . , - - . , - . . , - . o , - . 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Present: Chairman Dick Smith, Secretary Randy Robinson, Phil Gallivan, Lilia Bynum and Charles Jackson Ex Officio Members: Howard Martin, ACM Utilities Absent: George Campbell City Manager Vice Chair Billy Cheek and Barbara Russell OPEN MEETING: CONSENT AGENDA: 3. Consider recommending approval of an annually renewable, three -year unit price purchase agreement with Techline, Inc. for single and three -phase overhead and underground distribution transformers in accordance with the requirements of RFP 5347 in a not to exceed three -year total amount of $4,500,000. Motion was made to approve item 3 by Board Member Gallivan with the second by Board Member Bynum. The vote was 5 -0 approved. Adjournment 9:45 a.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE SUPPLY OF ELECTRIC UTILITY OVERHEAD AND UNDERGROUND DISTRIBUTION TRANSFORMERS FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5347- AWARDED TO TECHLINE, INC. IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $4,500,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of Electric Utility Overhead and Underground Distribution Transformers 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 CONTRACTOR AMOUNT 5347 Techline, Inc. $4,500,000 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 EXHIBIT 3 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 File 5347 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 proposals. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12014 CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY p BY: EXHIBIT 4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND TECHLINE, INC. (RFP 5347) THIS CONTRACT is made and entered into this _ day of A.D., 2014, by and between TECHLINE, INC. a corporation, whose address is 5401 Martin Street Fort 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 #5347 SUPPLY OF OVERHEAD AND UNDERGROUND DISTRIBUTION TRANSFORMERS, 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 5347 (Exhibit "B" on file at the office of the Purchasing Agent) (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 5347 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 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY RFP 5347 TECHLINE, INC. BY:� AU1 1 1ORIZED SIGNATURE Date: < _ . Name: Title: ~ ) PHONE NUMBER _ _........ FAX NUMBER CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER Date: EXHIBIT 4 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 dentonpurchasing Lcityofdenton.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 The City will implement an escalation/de- escalation price adjustment annually. 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 annually 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 + / -1 %, then the stated eligible bid prices shall be adjusted in accordance with the published price change. It is the supplier or the City's responsibility to request a price adjustment annually 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 pricing sheet used to calculate the bid proposal, to participate in the escalation /de- escalation clause. EXHIBIT 4 Total Contract Amount The contract total shall not exceed $4,500,000. Pricing shall be per Exhibit D attached. Delivery Lead Time Product or services shall be delivered to the City per the days /weeks noted in Exhibit D after receipt of the order. Liquidated Damages Liquidated damages shall not exceed 3% of the total contract value. EXHIBIT 4 Exhihit C 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. EXHIBIT 4 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 fortes 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 EXHIBIT 4 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: EXHIBIT 4 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 bome 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/"E 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 forth, 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. EXHIBIT 4 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. EXHIBIT 4 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 EXHIBIT 4 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 EXHIBIT 4 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 forth 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. EXHIBIT 4 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 forth 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. EXHIBIT 4 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 EXHIBIT 4 being the intention of the parties that there are no third parry 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 EXHIBIT 4 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 EXHIBIT 4 (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. hM2://www.access.gj2o.gov/davisbacon/tx.html 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 Forth 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 EXHIBIT 4 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. 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 4 EXHIBIT C CONFLICT OF INTEREST QUESTIONNAIRE FORM COQ 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 who has a business relationship as defined b Section 176.001 1 -a with a local governmental p p y ( ) g 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 El 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 1 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 CIO 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 0 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? 0 Yes 0 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 0 Yes No D. Describe each affiliation or business relationship. 4 Signature of person doing business with the governmental Date entity EXHIBIT 4 EXHIBIT D RFP 5347 - Pricing Sheet for OVERHEAD AND UNDERGROUND DISTRIBUTION TRANSFORMERS Product Proposal Pricinq (FOB DESTINATION): ITEM EST ANNUAL QTY UOM DESCRIPTION Unit Pricing Total Cost No Load Losses - - -- TNLL - - -- Load Losses ------- TLL ----- Min. # of NEMA Holes in Secondary Spades (3 PH Only) OVERHEAD - POLEMOUNTED TRANSFORMERS 1 1 EA TRANSFORMER, .5 kVA 120/208 $538.00 $ 538.00 11 6 2 10 EA TRANSFORMER, 10 kVA 120/240V $983.00 $ 9,830.00 43 103 3 12 EA TRANSFORMER, 15 kVA 120/240V $1,174.00 $ 14,088.00 61 122 4 30 EA TRANSFORMER, 25 kVA 120/240V $1,394.00 $ 41,820.00 81 199 5 18 EA TRANSFORMER, 50 kVA 120/240V $1,910.00 $ 34,380.00 129 400 6 10 EA TRANSFORMER, 75 kVA 120/240V $2,908.00 $ 29,080.00 178 505 7 1 EA TRANFORMER, 10kVA 240/480V $1,059.00 $ 1,059.00 48 82 8 1 EA TRANSFORMER, 15 kVA 240/480V $1,319.00 $ 1,319.00 57 143 9 1 EA TRANSFORMER, 25 kVA 240/480V $1,641.00 $ 1,641.00 90 177 10 1 EA TRANSFORMER, 75 kVA 240/480V $2,829.00 $ 2,829.00 171 546 11 1 EA TRANSFORMER, 100kVA 120/240V $4,138.00 $ 4,138.00 228 613 12 1 EA TRANSFORMER, 100kVA 240/480V $3,404.00 $ 3,404.00 211 642 13 1 EA TRANSFORMER, 167kVA 120/240V $5,386.00 $ 5,386.00 35 a 1039 14 1 EA TRANSFORMER, 167kVA 240/480V $4,796.00 $ 4,796.00 366 938 15 1 EA TRANSFORMER, 50 kVA 277/480V $2,290.00 $ 2,290.00 137 343 16 EA Standard price deduct for transformers supplied without required tank mounted Lightning Arrester assembly, coiled High Voltage lead and wildlife protector: $55.00 17 Transformer Manufacturer: Howard Industries 18 Only NEW parts & equipment are used in the manufacture of supplied transformers: YES or NO Yes 19 Authorized Distributor by Manufacturer? YES or NO Yes 20 WK Delivery can be made within weeks of receipt of order. 8 -10 Weeks UNDERGROUND - PADMOUNTED SINGLE -PHASE TRANSFORMERS 21 5 EA 501<VA PMT, 240/120V $2,522.00 $ 12,610.00 142 343 22 12 EA 75kVA PMT, 240/120V $2,830.00 $ 33,960.00 188 471 23 5 EA 1001<VA PMT, 240/120V $3,645.00 $ 18,225.00 223 604 24 21 EA 167kVA PMT, 240/120V $5,384.00 $ 113,064.00 352 894 25 1 EA 15kVA PMT, 480/240V $1,785.00 $ 1,785.00 55 146 26 1 EA 25kVA PMT, 240/120V $2,096.00 $ 2,096.00 93 167 27 1 EA 25kVA PMT, 480/240V $2,112.00 $ 2,112.00 93 164 28 1 EA 1001<VA PMT, 480/240V $3,888.00 $ 3,888.00 240 571 29 1 EA 167kVA PMT, 480/240V $5,773.00 $ 5,773.00 343 834 30 1 EA 501<VA DELTA, 12.47kV DELTA HV 240/120V $3,221.00 $ 3,221.00 123 403 UNDERGROUND - PADMOUNTED THREE -PHASE TRANSFORMERS EXHIBIT 4 EXHIBIT D RFP 5347 - Pricing Sheet for OVERHEAD AND UNDERGROUND DISTRIBUTION TRANSFORMERS Product Proposal Pricinq (FOB DESTINATION): Payment Term Discounts Payment Terms Additional Discount % Invoice Paid in 20 days 1/2% @ Net 20 Invoice Paid in 15 days 1% @ Net 10 Invoice Paid in 10 days *NOTE: PRICING SHALL INCLUDE ALL COSTS TO DELIVER GOODS AS SPECIFIED FOB DESTINATION. EST No Load Load Losses Min. # of NEMA ITEM ANNUAL UOM DESCRIPTION Unit Pricing Total Cost Losses ------- TLL ----- Holes in Secondary QTY - - -- TNLL - - -- Spades (3 PH Only) 31 6 EA TRANSFORMER, 3PH. UG 150 kVA $9,690.00 $ 58,140.00 359 1032 s 208Y 120V 32 3 EA TRANSFORMER, 3PH. UG 225 kVA $11,281.00 $ 33,843.00 475 1512 s 208Y 120V 33 1 EA TRANSFORMER, 3 PH UG 225kVA $10,530.00 $ 10,530.00 477 1581 8 240/120D 34 1 EA TRANSFORMER, 3PH. UG 225 kVA $10,772.00 $ 10,772.00 489 1347 8 480Y 277V 35 6 EA TRANSFORMER, 3PH. UG 300 kVA $11,921.00 $ 71,526.00 617 1962 8 208Y /120V 36 8 EA TRANSFORMER, 3PH. UG500kVA $15,060.00 $ 120,480.00 851 3496 8 208Y /120V 37 15 EA TRANSFORMER, 3PH. UG 300 kVA $11,486.00 $ 172,290.00 622 1779 8 480Y/277V 38 12 EA TRANSFORMER, 3PH. UG 500 kVA $15,774.00 $ 189,288.00 916 2532 8 480Y/277V 39 5 EA TRANSFORMER, 3PH. UG 1000 kVA $24,210.00 $ 121,050.00 1374 5508 8 480Y/277V 40 2 EA TRANSFORMER, 3PH. UG 1500 kVA $32,494.00 $ 64,988.00 1796 7977 10 480Y/277V 41 1 EA TRANSFORMER, 3PH. UG 2000 kVA $38,181.00 $ 38,181.00 2249 10800 10 480Y 277V 42 1 EA TRANSFORMER, 3PH. UG 2500kVA $52,110.00 $ 52,110.00 2908 11799 10 43 1 EA TRANSFORMER, 3PH. UG 3000kVA $61,392.00 $ 61,392.00 3120 15561 10 44 1 EA TRANSFORMER, 3 PH. UG 75kVA $8,047.00 $ 8,047.00 158 930 s 45 1 EA TRANSFORMER, 3 PH. UG 112.5kVA $8,541.00 $ 8,541.00 271 897 8 208 120V 46 1 EA TRANSFORMER, 3 PH.UG 750kVA $21,528.00 $ 21,528.00 1013 5544 10 208Y 120V 47 1 EA TRANSFORMER, 3 PH. UG 1000kVA $27,262.00 $ 27,262.00 1545 6114 10 208Y /120V 48 1 EA TRANSFORMER, 3 PH.UG 112.5kVA $8,162.00 $ 8,162.00 278 963 8 480Y/277V 49 1 EA TRANSFORMER, 3 PH. UG 150kVA $9,221.00 $ 9,221.00 347 960 8 480Y/277V 50 1 EA TRANSFORMER, 3 PH. UG 750kVA $21,387.00 $ 21,387.00 993 4467 8 480Y 277V 51 1 EA TRANSFORMER, 3 PH. UG DELTA $12,045.00 $ 12,045.00 617 2049 8 3001<VA 240/120V 52 Single -Phase PMT Manufacturer: Howard Industries 53 Three -Phase PMT Manufacturer: Howard Industries Only NEW parts & equipment are 54 used in the manufacture of supplied Yes transformers: YES or NO 55 Authorized Distributor by Yes Manufacturer? YES or NO 56 Delivery can be made within 8 -10 Weeks weeks of receipt of order. Payment Term Discounts Payment Terms Additional Discount % Invoice Paid in 20 days 1/2% @ Net 20 Invoice Paid in 15 days 1% @ Net 10 Invoice Paid in 10 days *NOTE: PRICING SHALL INCLUDE ALL COSTS TO DELIVER GOODS AS SPECIFIED FOB DESTINATION. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0591, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: October 7, 2014 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the supply of Electric Utility Station Service Voltage Transformers for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5596- awarded to ABB HVIT in the three (3) year not -to- exceed amount of $350,000). The Public Utilities Board recommends approval (5 -0). RFP INFORMATION Denton Municipal Electric (DME) has substation projects approved in its five (5) year Capital Improvement Plan that will require the installation of station service voltage transformers. Station service voltage transformers (SSVT) are used to transform the transmission voltage from 138kV down to 120/240 volts that will be used to provide power for site electrical needs. Substation sites require 120/240 volt power to operate building lights, exterior lights, receptacles, battery charges, and other electrical hardware and equipment. The RFP required pricing for four different types of SSVT's that could be needed during the contract period. At this time, it is expected that only two types will actually be used. Only quantities for the two types of SSVT's expected to be used are included in the evaluation. Requests for Proposals were sent to 221 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. Due to the specialized production of this type of equipment, one proposal was received from ABB HVIT. The proposal was evaluated based upon published criteria including price, project schedule, compliance with specifications, and indicators of probable performance. A Best and Final Offer (BAFO) was conducted which resulted in per unit price reduction for an estimated three (3) year cost savings of $90,876 (Exhibit 1- Evaluation/BAFO Sheet). PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On September 22, 2014, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION City of Denton Page 1 of 2 Printed on 10/2/2014 File #: ID 14 -0591, Version: 1 Approve a contract with ABB HVIT in the three (3) year not -to- exceed amount of $350,000. This amount is based on estimated quantities for substations included in the five (5) year CIP. PRINCIPAL PLACE OF BUSINESS ABB HVIT Lexington, KY ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) 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 costs for material purchased under the proposed agreement will be funded out of amounts budgeted for specific projects. The work proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission transmission cost of service program (TCOS). EXHIBITS Exhibit l: Evaluation/Best and Final Offer Exhibit 2: Public Utilities Board Draft Minutes Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Chuck Sears at 349 -7111. City of Denton Page 2 of 2 Printed on 10/2/2014 ti 5; 0 < LU 0 m LU Z z 4) < I N w 00 00 E Lu C: r OD x 0) 0 0 u 0 0 rl� 0 0 cc� .E D 0) ro �o 0 aj N �o E > r r� r) VI LLJ .2 0 0 0 0 c c > Q C5 �* C5 Lr) c a m 2 0 C r-� t, co OD 0) ti Ln c -C x OJ x LLA V)? V)? v 4) 0 0 0 0 .2 C5 C5 �4 Lr) Lr) D 6 V tn. Lr) tn. t < < < < < < u 0 u 0 u E Ln 0 0 1-1 1 kD kD kD Ln t0 kD a) kD a) a) a) a) cu E to E E 2 & � 0 F - cu EA 0 - cu to to ao m o 0 ca 0 u 0 > 0 > cu m W u cu U cc u > cu 2 cu V) V) o u .2 2 1� o EA 0 V) < > Y m 0 Ln 0 0 �H 0 5; 0 < LU < LU m LU Z z 4) < I I I awl 0 0 0 U- 0 0 V io FO — O 0 00 0 co �l r1i �o cn 0 0 00 0 co �l r1i �o cn EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD September 22, 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, September 22, 2014 at 9:02 a.m. in the Service Center Training Room, City of Denton Service Center, 901A Texas Street, Denton, Texas. Present: Chairman Dick Smith, Secretary Randy Robinson, Phil Gallivan, Lilia Bynum and Charles Jackson Ex Officio Members: Howard Martin, ACM Utilities Absent: George Campbell City Manager Vice Chair Billy Cheek and Barbara Russell OPEN MEETING: CONSENT AGENDA: 5. Consider recommending approval of a contract with ABB Kuhlman HVIT for the purchase of Supply Station Service Voltage Transformers in an amount not to exceed $350,000.00 (RFP 45596). Motion was made to approve item 5 by Board Member Gallivan with the second by Board Member Bynum. The vote was 5 -0 approved. Adjournment 9:45 a.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE SUPPLY OF ELECTRIC UTILITY STATION SERVICE VOLTAGE TRANSFORMERS FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5596- AWARDED TO ABB HVIT IN THE THREE (3) YEAR NOT-TO-EXCEED AMOUNT OF $350,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of station service voltage transformers 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 CONTRACTOR AMOUNT 5596 ABB HVIT $350,000 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. EXHIBIT 3 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 File 5596 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 proposals. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12014 CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY - BY: EXHIBIT 4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND ABB, INC (RFP 5596) THIS CONTRACT is made and entered into this day of A.D., 2014, by and between ABB, Inc, a corporation, whose address is 3101 Beaumont Circle, Suite 225 Lexin2ton. KY 40513, 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 # 5596 — Supply of Electric Utility Station Service Voltage Transformers, a copy of which is on file at the office of Purchasing Agent 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) City of Denton's RFP 5596 (Exhibit "B" on file at the office of the Purchasing Agent) (c) Form CIQ — Conflict of Interest Questionnaire (Exhibit" C11). (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 5596 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 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY I: RFP 5596 SUPPLIER Alt`.I "llOR # °,D SIGNATURE Date:__ .....� Title. '01 PHONE NUMBER �„ " - . .. cb 2,S FAX NUMBER CITY OF DENTON, TEXAS BY:...._w.... GEORGE C. CAMPBELL, CITY MANAGER Date: EXHIBIT 4 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 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 dentonpurchasinggcityofdenton.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 for the commodities or services 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 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. RFP 5596 EXHIBIT 4 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_gcityofdenton.com noting the solicitation number. 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 $350,000. Pricing shall be per Exhibit D attached. Delivery Lead Time Product or services shall be delivered to the City per the days /weeks noted in Exhibit D after receipt of the order. Liquidated Damages Liquidated Damages as described in the Exhibit B, Section 18 is removed. RFP 5596 EXHIBIT 4 Exhibit C 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 be used ship deliverables. the ���m 1 �c place o d e iv� o ry . „ shall e t hat sel forth the purchase order. ef � 7. ItIGI I° T' OF INSI° EC "HON AND I+tl:'Ri" I'ION. The City expressly reserve's all N ights` i der law, laacluding„ 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 5596 EXHIBIT 4 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 11113 EXHIBIT 4 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 fled 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: RFP 5596 EXHIBIT 4 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. RFP 5596 EXHIBIT 4 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. RFP 5596 EXHIBIT 4 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 5596 EXHIBIT 4 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 5596 EXHIBIT 4 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. RFP 5596 EXHIBIT 4 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 5596 EXHIBIT 4 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 RFP 5596 EXHIBIT 4 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 5596 EXHIBIT 4 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 RFP 5596 EXHIBIT 4 (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. htti)://www.access.iii)o.izov/davisbacon/tx.html 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 RFP 5596 EXHIBIT 4 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. 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 5596 EXHIBIT 4 Exhibit C City of Denton RFP for Supply of Electric Utility Station Service Voltage Transformers WICMUMI- CONFLICT OF INTEREST QUESTIONNAIRE CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For rettcior or otha,q �ro�r; tlolmr��rs�r��ss �vitlr kcal ��u•rrr��� *rNtai el�ttt 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 Dale Recehtd 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. I Name of person who has a business relationship with local governmental enfity. N/A Check this box If you are riling an update to a preNiously flied questionnaire. (The law requires that ym file an op (lalcd eownpletcd quesrionnaire with the appropriate fling authority not later than the 7h business day after the date the ort 10 y twdcd i tipewiRll taMRd4tl bee5,YIIS S t1SCS}n 4 or'loaccumteol Name of local government officer with whom filer has an employment or business relationship. N/A Name of Officer This section, (item 3 Including subparts A, 13, 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 I A I 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? 0 Yes M 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 0 No D. Describe each affiliation or business relationship. Date RFP $596 - Main Document RFP 5596 Page 16 of 17 EXHIBIT 4 Exhibit D RFP 5596 - Evaluation and BAFO Sheet for STATION SERVICE VOLTAGE RFP 5596 Respondent's Name: Principal Place of Business (City and State) ABB- BAFO 2 Lexington, KY EST. Manufacturer /Part Estimated Item # ANNUAL UOM Product Description Number Unit Price Delivery ARO QTY (weeks) 3 2 EA 50 kVA Station Service Voltage Transformer L99N666050CAAAA $ 36,626.00 28 4 1 1 EA 1100 kVA Station Service Voltage Transformer IL99N656100CAAAA $ 38,546.00 28 RFP 5596 EXHIBIT 4 Exhibit D City of Denton RFP for Supply of Electric Utility Station Service Voltage Transformers - SUBMISSION EXCEPTIONS Any exceptions taken to this solicitation must be itemized on the lines below. Additional pages may be added as needed. If there are no exceptions, please sign where indicated at the bottom of the page. Item # Description Take exception to unlimited ited__ Liquidated Damages. ABB will not accept contracts with unlimited Liquidated Damages. Pricing provided i � q s for no liquidated damages. Signature Company Date No Exceptions taken to this solicitation. Signature Company Date RF5 559 - Main Document Page 14 of 17 EXHIBIT 4 Exhibit D City of Denton RFP for Supply of Electric Utility Station Service Voltage Transformers BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS 1. Contractor Legal Name (for contracting purposes): ABB HVIT (non legal entity) 2. Subsidiary of. ABB, Inc. -- ABB Power Systems, ABB North America 3. Organization Class (circle): Partnership Corporation Individual Association 4. Tax Payer ID #: 36- 3100018 5. Date Established: July 2008 6. Historically Underutilized Business: Yes orCp 7. Does your company have an established physical presence in the State of Texas, or the City of Denton? Yes or No, in which? ABB HVIT does not. ABB North America has sales and service offices throu hout Texas. 8. Please provide a detailed listing of all produc ?s and /or services that your company provides. ABB HVIT provides High Voltage Instrument Transformers. Parent company, ABB, provides a vast array of power systems equipment and Industrial automation equipment. 9. Has your company fled 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. NA 10. 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. 11. Have you ever had a contract terminated by the Owner? If so, where and why? Give name and telephone number (s) of Owner (s). 12. 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? hit p Ol�v��tl�v.��slr ��v�l';�ls�c >sl�a�a�l� /���a ti�1�17w.����lclr 1161, 111 ?P. (Lgq_i .� +NQAJ�D %12 l a level =] &y keyvalue =1926 Yes. RFP 5596 - Main Document RFP 5596 Page 12 of 17 EXHIBIT 4 Exhibit D City of Denton RFP for Supply of Electric Utility Station Service Voltage Transformers 13. 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. Responding firms principle place of business: Lexington, KY b. Company's majority owner principle place of business: Global company, publicly traded c. Ultimate Parent Company's principle place of business: ZOrlch, Switzerland Headquarters -- global sales activity 26. Provide details on how firm meets the minimum qualifications stated in Section 3; including copies of professional licenses (Additional attachments may be included for reference). Please see attached users list. ABB HVIT has done business with the City of Denton in the past. 27. Provide details to support the evaluation criteria, including experience and delivery. Please see provided users list. RFP 5596 - Main Document RFP 5596 Page 13 of 17 EXHIBIT 4 Exhibit D City of Denton RFP for Supply of Electric Utility Station Service Voltage Transformers 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 solicitation. REFERENCE ONE GOVERNMENT /COMPANY NAME: Oncor LOCATION: Ft. Worth, Tx CONTACT PERSON AND TITLE: Omar All TELEPHONE NUMBER: 817- 215 - 550 SCOPE OF WORK: CONTRACT PERIOD: ctuotc REFERENCE TWO GOVERNMENT /COMPANY NAME: LCRA LOCATION: Austin, " I' X- .............................. CONTACT PERSON AND TITLE: John Had TELEPHONE NUMBER: 512- 369 -4154 SCOPE OF WORK: SS CONTRACT PERIOD: REFERENCE THREE ._. GOVERNMENT /COMPANY NAME: Brazos Electric LOCATION: Waco, TX -, CONTACT PERSON AND TITLE: David Gray TELEPHONE NUMBER: 254 -750 -6345 SCOPE OF WORK: Engi CONTRACT PERIOD: q RFP 5596 - Main Document RFP 5596 Page 15 of 17 EXHIBIT 4 Exhibit D City of Denton RFP for Supply of Electric Utility Station Service Voltage Transformers XVWffW&4MACKN OWLEDGEMENT The undersigned agrees this submission becomes the property of the City of Denton after the official opening. The undersigned affirms he has familiarized himself with the specification, drawings, exhibits and other documents; the local conditions under which the work is to be performed; satisfied himself of the conditions of delivery, handling and storage of materials and equipment; and all other matters that will be required for the work before submitting a response. The undersigned agrees, if this submission 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 specification. The period for acceptance of this submission will be 120 calendar days unless a different period is noted. The undersigned affirms that they are duly authorized to execute this contract, that this submission has not been prepared in collusion with any other respondent, nor nny employee of the City of Denton, and that the contents of this submission have not been communicated to any other respondent or to any employee of the City of Denton prior to the acceptance of this submission. 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. & Coin. Code, Section 15.01, et se o. The undersigned affirms that they have read and do understand the specifications, all exhibits and attachments contained In this solicitation package, The undersigned agrees that the solicitation package 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; / /W%VN Y.citvofdenton.com /index asl)x ?page =397 to ensure they have downloaded and signed all addendum(s) required for submission with their response. I certify that 1 have made no willful misrepresentations in this submission, nor have 1 withheld information in my statements and answers to questions. I am aware that the information given by me in this submission will be investigated, with my full permission, and that any misrepresentations or omissions may cause my submission to be rejected. Acknowledge receipt of following addenda to the solicitation: Addendum No 1 Dated Received Addendum No 2 Dated Received Addendum No 3 Dated Received NAME AND ADDRESS OF COMPANY: AI.ITIIORI E tV 1111NI1! 1' A" '1 1" Sig IIatu�Mo y .. Name - .�_. �. r �. ............... ...... ._- Title rt'►'.`_j4-i��_ .__ .' bT Fax No....." ZZ3 -~2025` Tel. No. S'S` Zl ... Email. 4528 �4 ��rtT, bf— co&ef RFP 5596 - Main Document RFP 5596 Page 17 of 17 Customer City of Denton Project Station Service Voltage Transformers 114 -10929 Representative JH Davidson 7707 East 111th Street, Suite 102 Tulsa Attention EXHIBIT 4 Exhibit D ABB Tender ID 14Q2339848 Tender Offer Date 04 Sep 2014 Tender Expiration 17 Aug 2014 Prepared by Jonathan Lay jonathan.p.lay @us.abb.com 859 - 219 -6047 In response to your request we are pleased to offer the following: Pricin 50 2 L99N666050C •0-SSVT -650, Outdoor Station Service Voltage Transformer, Nominal System Voltage= 138kV, BIL= 650kV, Bushing Creep /Strike = 147 "nom. /49 "min., Ratio =Power Winding Only, Accuracy =N /A, Thermal Rating= 50kVA, Primary Voltage= 79674V, Secondary Voltage= 1 20/240V nom. (actual output supplied on nameplate), Bushings =1 NOTES: (1) This model is seismic qualified to IEEE - 693 -2005 Level High 0.5g X 2.5 via Dynamic Analysis. FREIGHT NOTES: (1) This model is shipped via flat -bed trailer Manufacturing lead time (weeks,ARO): 28 Add 1 week for delivery ABB Internal Order Entry Codes Product Code: [9AAF400999] - Instrument Transformers / Station Service Voltage Transformers / SSVT / SSVT -650 Source Location: [9AAE310700] - United States - Crystal Springs - 2129 - Instrument Transformers RFP 5596 Revision: 5 Revision Description: Revision 5 to reference prior T &Cs. Revision 4 to provide metering options in mild steel units. Revision 3 to offer mild steel units. 36 626.00 f 73 252.00 EXHIBIT 4 Exhibit D 60 1 L99N656100C 38 546.00 38 546.00 -lo-SSVT-650, Outdoor Station Service Voltage Transformer, Nominal System Voltage= 1 38kV, BIL= 650kV, Bushing Creep /Strike = 147 "nom. /49 "min., Ratio =Power Winding Only, Accuracy =N /A, Thermal Rating= 1 00kVA, Primary Voltage= 79674V, Secondary Voltage= 120/240V nom. (actual output supplied on nameplate), Bushings =1 NOTES: (1) This model is seismic qualified to IEEE - 693 -2005 Level High 0.5g X 2.5 via Dynamic Analysis. FREIGHT NOTES: (1) This model is shipped via flat -bed trailer Manufacturing lead time (weeks,ARO): 28 Add 1 week for delivery ABB Internal Order Entry Codes Product Code: [9AAF400999] - Instrument Transformers / Station Service Voltage Transformers / SSVT / SSVT -650 Source Location: [9AAE310700] - United States - Crystal Springs - 2129 - Instrument Transformers 70 2 L99M666050CWWWWW uWWWWWWWWW - 39 200.00 78 400.00 • ►SSVT -650, Outdoor Station Service Voltage Transformer, Nominal System Voltage= 138kV, BIL= 650kV, Bushing Creep /Strike = 147 "nom. /49 "min., Ratio =Power Winding + 700/1200:1, Accuracy =0.15 Z, Thermal Rating= 50kVA, Primary Voltage= 80500V, Secondary Voltage= 120/240V nom.(actual output supplied on nameplate), 115/69V Bushings =1 NOTES: (1) This model is seismic qualified to IEEE - 693 -2005 Level High 0.5g X 2.5 via Dynamic Analysis. FREIGHT NOTES: (1) This model is shipped via flat -bed trailer Manufacturing lead time (weeks,ARO): 28 Add 1 week for delivery ABB Internal Order Entry Codes Product Code: [9AAF400999] - Instrument Transformers / Station Service Voltage Transformers / SSVT / SSVT -650 Source Location: [9AAE310700] - United States - Crystal Springs - 2129 - Instrument Transformers RFP 5596 EXHIBIT 4 Exhibit D 80 1 L99M656100C 46 800.00 46 800.00 • ►SSVT -650, Outdoor Station Service Voltage Transformer, Nominal System Voltage= 1 38kV, BIL= 650kV, Bushing Creep /Strike = 147 "nom. /49 "min., Ratio= Power Winding + 700/1200:1, Accuracy =0.15 Z, Thermal Rating= 100kVA, Primary Voltage= 80500V, Secondary Voltage= 1 20/240V nom.(actual output supplied on nameplate), 115/69 V, Bushings =1 NOTES: (1) This model is seismic qualified to IEEE - 693 -2005 Level High 0.5g X 2.5 via Dynamic Analysis. FREIGHT NOTES: (1) This model is shipped via flat -bed trailer Manufacturing lead time (weeks,ARO): 28 Add 1 week for delivery ABB Internal Order Entry Codes Product Code: [9AAF400999] - Instrument Transformers / Station Service Voltage Transformers / SSVT / SSVT -650 Source Location: [9AAE310700] - United States - Crystal Springs - 2129 - Instrument Transformers C Grand Total Sales Price (USD): 236 998.00 General Terms and Conditions Product Information To insure a trouble free installation, transformers offered herein must be installed with electrical clearances per the National Electric Safety Code (NESC). Payment Terms Net 30 Days Freight Terms FCA Free Carrier Denton, TX Freight allowed via enclosed truck within the contiguous United States unless otherwise specified in this tender or alternate freight options are offered. Price and Lead Time Validity Shown as net each and firm for the stated quantities and lead times. Specified lead times are based on current production levels. Actual lead times are dependent on available production slots at time of order entry and /or release -to- manufacturing. Warranty 18 months from delivery or 12 months from commissioning, whichever comes first. RFP 5596 EXHIBIT 4 Exhibit D Terms and Conditions Terms and Conditions as specified in attached document: City of Denton TandC Supplemental Revision 2.doc. See this document for exceptions — particularly Section 1.18 Liquidated Damages. PRICING IS BASED ON NO LIQUIDATED DAMAGES. Quotation Drawings All drawings provided with this tender offer are preliminary and are for quotation purposes only. Approval Drawings Approval drawings, if requested or required, will be supplied within 4 weeks ARO. Manufacturing lead time is based upon timely return of approval drawings from customer within two (2) weeks of receipt of drawings. On orders requiring "hold for release to manufacturing until receipt of approval drawings ", the quoted lead time commences on the date ABB receives the approved drawings. Please address all purchase orders to ABB, Inc.. Orders addressed otherwise cannot be accepted. We appreciate the opportunity to quote on this business. If you have any question regarding this tender please contact your representative, as indicated at the top of this tender. Additionally, direct all orders to ABB, Inc. in care of your representative. Best regards, Jonathan Lay RFP 5596 EXHIBIT 4 Exhibit D ABB INC. GENERAL TERMS AND CONDITIONS OF SALE 1. General. The terms and conditions contained herein, together with any additional or different terms contained in ABB's Proposal, if any, submitted to Purchaser (which Proposal shall control over any conflicting terms), constitute the entire agreement (the "Agreement ") between the parties with respect to the order and supersede all prior communications and agreements regarding the order. Acceptance by ABB of the order, or Purchaser's acceptance of ABB's Proposal, is expressly limited to and conditioned upon Purchaser's acceptance of these terms and conditions, payment for or acceptance of any performance by ABB being acceptance. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by Purchaser to which terms ABB hereby objects. Unless the context otherwise requires, the term "Equipment" as used herein means all of the equipment, parts, accessories sold, and all software and software documentation, if any, licensed to Purchaser by ABB ( "Software ") under the order. Unless the context otherwise requires, the term "Services" as used herein means all labor, supervisory, technical and engineering, installation, repair, consulting or other services provided by ABB under the order. As used herein, the term "Purchaser" shall include the initial end use of the Equipment and /or services; provided, however, that Paragraph 13(a) shall apply exclusively to the initial end user. 2. Prices. (a) Unless otherwise specified in writing, all Proposals expire thirty (30) days from the date thereof. (b) Unless otherwise stated herein, Services prices are based on normal business hours (8 a.m. to 5 p.m. Monday through Friday). Overtime and Saturday hours will be billed at one and one -half (11/2) times the hourly rate; and Sunday hours will be billed at two (2) times the hourly rate; holiday hours will be billed at three (3) times the hourly rate. If a Services rate sheet is attached hereto, the applicable Services rates shall be those set forth in the rate sheet. Rates are subject to change without notice. (c) The price does not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes which may now or hereafter be applicable. Purchaser agrees to pay or reimburse any such taxes which ABB or its suppliers are required to pay or collect. If Purchaser is exempt from the payment of any tax or holds a direct payment permit, Purchaser shall, upon order placement, provide ABB a copy, acceptable to the relevant governmental authorities of any such certificate or permit. (d) The price includes customs duties and other importation or exportation fees, if any, at the rates in effect on the date of ABB's Proposal. Any change after that date in such duties, fees, or rates, shall increase the price by ABB's additional cost. 3. Payment. (a) Unless specified to the contrary in writing by ABB, payment terms are net cash, payable without offset, in United States Dollars, 30 days from date of invoice by wire transfer to the account designated by ABB in the Proposal. (b) If in the judgment of ABB the financial condition of Purchaser at any time prior to delivery does not justify the terms of payment specified, ABB may require payment in advance, payment security satisfactory to ABB, or may terminate the order, whereupon ABB shall be entitled to receive reasonable cancellation charges. If delivery is delayed by Purchaser, payment shall be due on the date ABB is prepared to make delivery. Delays in delivery or nonconformities in any installments delivered shall not relieve Purchaser of its obligation to accept and pay for remaining installments. (c) Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1 1/2% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus ABB's attorneys' fees and court costs incurred in connection with collection. 4. Changes. (a) Any changes requested by Purchaser affecting the ordered scope of work must be accepted by ABB and resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change. RFP 5596 EXHIBIT 4 Exhibit D (b) ABB may, at its expense, make such changes in the Equipment or Services as it deems necessary, in its sole discretion, to conform the Equipment or Services to the applicable specifications. If Purchaser objects to any such changes, ABB shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection. 5. Delivery. (a) All Equipment manufactured, assembled or warehoused in the continental United States is delivered F.O.B. point of shipment. Equipment shipped from outside the continental United States is delivered F.O.B. United States port of entry. Purchaser shall be responsible for any and all demurrage or detention charges. (b) If the scheduled delivery of Equipment is delayed by Purchaser or by Force Majeure, ABB may move the Equipment to storage for the account of and at the risk of Purchaser whereupon it shall be deemed to be delivered. (c) Shipping and delivery dates are contingent upon Purchaser's timely approvals and delivery by Purchaser of any documentation required for ABB's performance hereunder. (d) Claims for shortages or other errors in delivery must be made in writing to ABB within ten days of delivery. Equipment may not be returned except with the prior written consent of and subject to terms specified by ABB. Claims for damage after delivery shall be made directly by Purchaser with the common carrier 6. Title & Risk of Loss. Except with respect to Software (for which title shall not pass, use being licensed) title to Equipment shall remain in ABB until fully paid for. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage shall pass to Purchaser upon delivery. 7. Inspection, Testing and Acceptance. (a) Any inspection by Purchaser of Equipment on ABB's premises shall be scheduled in advance to be performed during normal working hours. (b) If the order provides for factory acceptance testing, ABB shall notify Purchaser when ABB will conduct such testing prior to shipment. Unless Purchaser states specific objections in writing within ten (10) days after completion of factory acceptance testing, completion of the acceptance test constitutes Purchaser's factory acceptance of the Equipment and its authorization for shipment. (c) If the order provides for site acceptance testing, testing will be performed by ABB personnel to verify that the Equipment has arrived at site complete, without physical damage, and in good operating condition. Completion of site acceptance testing constitutes full and final acceptance of the Equipment. If, through no fault of ABB, acceptance testing is not completed within thirty (30) days after arrival of the Equipment at the site, the site acceptance test shall be deemed completed and the Equipment shall be deemed accepted. 8. Warranties and Remedies. (a) Equipment and Services Warranty. ABB warrants that Equipment (excluding Software, which is warranted as specified in paragraph (d) below) shall be delivered free of defects in material and workmanship and that Services shall be free of defects in workmanship. The Warranty Remedy Period for Equipment (excluding Software, Spare Parts and Refurbished or Repaired Parts) shall end twelve (12) months after installation or eighteen (18) months after date of shipment, whichever first occurs. The Warranty Remedy Period for new spare parts shall end twelve (12) months after date of shipment. The Warranty Remedy Period for refurbished or repaired parts shall end ninety (90) days after date of shipment. The Warranty Remedy Period for Services shall end ninety (90) days after the date of completion of Services. (b) Equipment and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the Equipment or Services during the applicable Warranty Remedy Period, as specified above, under normal and proper use and provided the Equipment has been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to ABB promptly after such discovery and within the applicable Warranty Remedy Period, ABB shall, at its option, either (i) repair or replace the nonconforming portion of the Equipment or re- perform the nonconforming Services or (ii) refund the RFP 5596 EXHIBIT 4 Exhibit D portion of the price applicable to the nonconforming portion of Equipment or Services. If any portion of the Equipment or Services so repaired, replaced or re- performed fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to ABB promptly after discovery and within the original Warranty Remedy Period applicable to such Equipment or Services or 30 days from completion of such repair, replacement or re- performance, whichever is later, ABB will repair or replace such nonconforming Equipment or re- perform the nonconforming Services. The original Warranty Remedy Period shall not otherwise be extended. (c) Exceptions. ABB shall not be responsible for providing working access to the nonconforming Equipment, including disassembly and re- assembly of non -ABB supplied equipment, or for providing transportation to or from any repair facility, all of which shall be at Purchaser's risk and expense. ABB shall have no obligation hereunder with respect to any Equipment which (i) has been improperly repaired or altered; (ii) has been subjected to misuse, negligence or accident; (iii) has been used in a manner contrary to ABB's instructions; (iv) is comprised of materials provided by or a design specified by Purchaser; or (v) has failed as a result of ordinary wear and tear. Equipment supplied by ABB but manufactured by others is warranted only to the extent of the manufacturer's warranty, and only the remedies, if any, provided by the manufacturer will be allowed. (d) Software Warranty and Remedies. ABB warrants that, except as specified below, the Software will, when properly installed, execute in accordance with ABB's published specification. If a nonconformity to the foregoing warranty is discovered during the period ending one (1) year after the date of shipment and written notice of such nonconformity is provided to ABB promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, ABB shall correct the nonconformity by, at its option, either (i) modifying or making available to the Purchaser instructions for modifying the Software; or (ii) making available at ABB's facility necessary corrected or replacement programs. ABB shall have no obligation with respect to any nonconformities resulting from (i) unauthorized modification of the Software or (ii) Purchaser - supplied software or interfacing. ABB does not warrant that the functions contained in the software will operate in combinations which may be selected for use by the Purchaser, or that the software products are free from errors in the nature of what is commonly categorized by the computer industry as "bugs ". (e) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE PURCHASER'S EXCLUSIVE REMEDIES AND ABB'S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY. 9. Patent Indemnity. (a) ABB shall defend at its own expense any action brought against Purchaser alleging that the Equipment or the use of the Equipment to practice any process for which such Equipment is specified by ABB (a "Process ") directly infringes any claim of a patent of the United States of America and to pay all damages and costs finally awarded in any such action, provided that Purchaser has given ABB prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action in behalf of Purchaser. (b) ABB shall have no obligation hereunder and this provision shall not apply to: (i) any other equipment or processes, including Equipment or Processes which have been modified or combined with other equipment or process not supplied by ABB; (ii) any Equipment or Process supplied according to a design, other than an ABB design, required by Purchaser; (iii) any products manufactured by the Equipment or Process; (iv) any patent issued after the date hereof; or (v) any action settled or otherwise terminated without the prior written consent of ABB. (c) If, in any such action, the Equipment is held to constitute an infringement, or the practice of any Process using the Equipment is finally enjoined, ABB shall, at its option and its own expense, procure for Purchaser the right to continue using said Equipment; or modify or replace it with non - infringing equipment or, with Purchaser's assistance, modify the Process so that it becomes non - infringing; or remove it and refund the portion of the price allocable to the infringing Equipment. THE FOREGOING RFP 5596 EXHIBIT 4 Exhibit D PARAGRAPHS STATE THE ENTIRE LIABILITY OF ABB AND EQUIPMENT MANUFACTURER FOR ANY PATENT INFRINGEMENT. (d) To the extent that said Equipment or any part thereof is modified by Purchaser, or combined by Purchaser with equipment or processes not furnished hereunder (except to the extent that ABB is a contributory infringer) or said Equipment or any part thereof is used by Purchaser to perform a process not furnished hereunder by ABB or to produce an article, and by reason of said modification, combination, performance or production, an action is brought against ABB, Purchaser shall defend and indemnify ABB in the same manner and to the same extent that ABB would be obligated to indemnify Purchaser under this "Patent Indemnity" provision. 10. Limitation of Liability. (a) In no event shall ABB, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of the Equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, and claims of customers of the Purchaser or other third parties for any damages. ABB's liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from this Agreement or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under this Agreement, or from any services rendered in connection therewith, shall in no case (except as provided in the section entitled "Patent Indemnity ") exceed one -half (1/2) of the purchase price allocable to the Equipment or part thereof or Services which gives rise to the claim. (b) All causes of action against ABB arising out of or relating to this Agreement or the performance or breach hereof shall expire unless brought within one year of the time of accrual thereof. (c) In no event, regardless of cause, shall ABB be liable for penalties or penalty clauses of any description or for indemnification of Purchaser or others for costs, damages, or expenses arising out of or related to the Equipment and /Services. 11. Laws and Regulations. ABB does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Equipment or Software is the sole responsibility of the Purchaser. All laws and regulations referenced herein shall be those in effect as of the Proposal date. In the event of any subsequent revisions or changes thereto, ABB assumes no responsibility for compliance therewith. If Purchaser desires a modification as a result of any such change or revision, it shall be treated as a change per Article 4. Nothing contained herein shall be construed as imposing responsibility or liability upon ABB for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Equipment. This Agreement shall be governed by the laws of the State of New York, but excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and excluding New York law with respect to conflicts of law. Purchaser agrees that all causes of action against ABB under this Agreement shall be brought in the State Courts of the State of New York, or the U.S. District Court for the Southern District of New York. If any provision hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed. 12. OSHA. ABB warrants that the Equipment will comply with the relevant standards of the Occupational Safety and Health Act of 1970 ( "OSHA ") and the regulations promulgated thereunder as of the date of the Proposal. Upon prompt written notice from the Purchaser of a breach of this warranty, ABB will replace the affected part or modify it so that it conforms to such standard or regulation. ABB's obligation shall be limited to such replacement or modification. In no event shall ABB be responsible for liability arising out of the violation of any OSHA standards relating to or caused by Purchaser's design, location, operation, or maintenance of the Equipment, its use in association with other equipment of Purchaser, or the alteration of the Equipment by any party other than ABB. RFP 5596 EXHIBIT 4 Exhibit D 13. Software License. (a) ABB owns all rights in or has the right to sublicense all of the Software, if any, to be delivered to Purchaser under this Agreement. As part of the sale made hereunder Purchaser hereby obtains a limited license to use the Software, subject to the following: (i) The Software may be used only in conjunction with equipment specified by ABB; (ii) The Software shall be kept strictly confidential; (iii) The Software shall not be copied, reverse engineered, or modified; (iv) The Purchaser's right to use the Software shall terminate immediately when the specified equipment is no longer used by the Purchaser or when otherwise terminated, e.g. for breach, hereunder; and (v) the rights to use the Software are non - exclusive and non - transferable, except with ABB's prior written consent. (b) Nothing in this Agreement shall be deemed to convey to Purchaser any title to or ownership in the Software or the intellectual property contained therein in whole or in part, nor to designate the Software a "work made for hire" under the Copyright Act, nor to confer upon any person who is not a named party to this Agreement any right or remedy under or by reason of this Agreement. In the event of termination of this License, Purchaser shall immediately cease using the Software and, without retaining any copies, notes or excerpts thereof, return to ABB the Software and all copies thereof and shall remove all machine readable Software from all of Purchaser's storage media. 14. Inventions and Information. Unless otherwise agreed in writing by ABB and Purchaser, all right, title and interest in any inventions, developments, improvements or modifications of or for Equipment and Services shall remain with ABB. Any design, manufacturing drawings or other information submitted to the Purchaser remains the exclusive property of ABB. Purchaser shall not, without ABB's prior written consent, copy or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Equipment and not for any other purpose, including the duplication thereof in whole or in part. 15. Force Majeure. ABB shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of war (declared or undeclared), Acts of God, fire, strike, labor difficulties, acts or omissions of any governmental authority or of Purchaser, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and the price will be adjusted to compensate ABB for such delay. 16. Cancellation. Any order may be cancelled by Purchaser only upon prior written notice and payment of termination charges, including but not limited to, all costs identified to the order incurred prior to the effective date of notice of termination and all expenses incurred by ABB attributable to the termination, plus a fixed sum of ten (10) percent of the final total price to compensate for disruption in scheduling, planned production and other indirect costs. 17. Termination. No termination by Purchaser for default shall be effective unless, within fifteen (15) days after receipt by ABB of Purchaser's written notice specifying such default, ABB shall have failed to initiate and pursue with due diligence correction of such specified default. 18. Export Control. (a) Purchaser represents and warrants that the Equipment and Services provided hereunder and the "direct product" thereof are intended for civil use only and will not be used, directly or indirectly, for the production of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect nuclear end use. Purchaser agrees not to disclose, use, export or re- export, directly or indirectly, any information provided by ABB or the "direct product" thereof as defined in the Export Control Regulations of the United States Department of Commerce, except in compliance with such Regulations. (b) If applicable, ABB shall file for a U.S. export license, but only after appropriate documentation for the license application has been provided by Purchaser. Purchaser shall furnish such documentation within RFP 5596 Fo H50=10 4 General Terms and ABBExhibit D Conditions of Sale a reasonable time after order acceptance. Any delay in obtaining such license shall suspend performance of this Agreement by ABB. If an export license is not granted or, if once granted, is thereafter revoked or modified by the appropriate authorities, this Agreement may be canceled by ABB without liability for damages of any kind resulting from such cancellation. At ABB's request, Purchaser shall provide to ABB a Letter of Assurance and End -User Statement in a form reasonably satisfactory to ABB. 19. Assignment. Any assignment of this Agreement or of any rights or obligations under the Agreement without prior written consent of ABB shall be void. 20. Nuclear Insurance — Indemnity. For applications in nuclear projects, the Purchaser and /or its end user customer shall have complete insurance protection against liability and property damage resulting from a nuclear incident to and shall indemnify ABB, its subcontractors, suppliers and vendors against all claims resulting from a nuclear incident. 21. Resale. If Purchaser resells any of the Equipment, the sale terms shall limit ABB's liability to the buyer to the same extent that ABB's liability to Purchaser is limited hereunder. 22. Entire Agreement. This Agreement constitutes the entire agreement between ABB and Purchaser. There are no agreements, understandings, restrictions, warranties, or representations between ABB and Purchaser other than those set forth herein or herein provided. RFP 5596 iii i4 cu cu E 0) C: 0 U 2 • —j z 0 (n W U) 0 li Z 0 0 Z) 0 ry li 0 U- 0 CD cn 0 4-a cn C: 0 110— 0 I EXHIBIT 4 Exhibit D r � C. o III 1, . C.� . ....... .. X In IN, 0 "1 ' ri I c r, I EXHIBIT 4 Exhibit D -cv In X 0 "1 ' ri I c r, Fv C, I > IK > > I ins A ITI o 14 amp ISO r� cry A It Ila Q0 I,j vj !, > Y < am LA In X 0 "1 ' ri I c r, > IK I ins A ITI o 14 amp ISO r� cry A It Ila Q0 I,j vj !, > Y < am LA co \V �/A}( E ^0) L •cu L L 72 O U El • J 0 U) LU U) ry z 0 Q F- 0 ry 0 LL O Cn C O U CIO L C O U L O O ii EXHIBIT 4L - cr ,. ra Exhibit D r , 4N } In rY Y r r vc loll rlfY 1 4. rA .� 'nY *f " �Y 4 0'� r lCa 4 w � c n' Cpl �" 4' Iy A • f' rrr% I Id Ir . 'if Pfl r., rry ,k. ri �. ...... d ddf A 41 Cr) D `n'e i - cr 4N 4 0'� r lCa i c n' �" 4' Iy A • f' rrr% 1 :. . rry . �. ...... A era A r+.... en m., C7 Ch _. > f } W U1 .PI I G a� �Il�lllll�u��l�llllllllllm �`'���:�� �IIIIIIIIIIIIIIIIIII IIIIIIIIIIIIIIIIIII� � �; I�O��IIIIn � a ; _, �IIIIIII IIIIIIIIIIIIIIIIIIIIIII 1 VIII r i City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0597, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: October 7, 2014 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for Golf Contractor Services for the City of Denton Parks Department; providing for the expenditure of funds therefor; and providing an effective date (RFP 5490- awarded to Premier Junior Golf Development, LLC in the three (3) year not -to- exceed amount of $300,000). RFP INFORMATION Under this RFP, the contracted vendor (Contractor) provides instruction for golf camps, classes, leagues, and private lessons, organizes and oversees tournaments and special events, and assists in marketing the City's golf program. Requests for Proposals were sent to 22 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download, advertised in the local newspaper and also on the Professional Golfers' Association website. Parks Department staff was contacted by several individual golf contractors that teach lessons but they could not comply with all of the required duties listed in the scope of services. Staff is not aware of any local vendors that perform these types of services. One (1) proposal meeting specifications was received from Premier Junior Golf Development, LLC. Premier Junior Golf Development, LLC provides golf programs at several other facilities in the Dallas -Fort Worth area and has provided excellent references. A Best and Final Offer was conducted which resulted in the reduction of the contractor's fee from 85 percent to 80 percent (Exhibit 1). Eighty (80) percent of the fees collected by the City of Denton for golf instruction, lessons, camps, clinics, scrambles, tournaments, events and any other golf related activities organized by the Contractor vendor will be paid to the Contractor. The City retains the other twenty (20) percent along with any revenues collected from sales at the driving range such as bucket sales, pro shop sales, concession sales, and facility rentals. RECOMMENDATION Approve a three (3) year contract with Premier Junior Golf Development, LLC in the not -to- exceed amount of $300,000. The actual amount to be paid will be calculated based on a percentage of the fees collected by the City of Denton Parks Department for private lessons, classes, camps, tournaments, and special events as stipulated in the attached contract agreement (Exhibit 3). PRINCIPAL PLACE OF BUSINESS City of Denton Page 1 of 2 Printed on 10/2/2014 File #: ID 14 -0597, Version: 1 Premier Junior Golf Development, LLC Murphy, TX ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) year contract with options to extend the contract for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION The services will be funded from Parks operating account 411260.7868. EXHIBITS Exhibit l: Best and Final Offer Pricing Sheet Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Emerson Vorel at 349 -7460. City of Denton Page 2 of 2 Printed on 10/2/2014 y— O C7 L O 1 L .E L a a) E m z a� N O Q O i d L O \V LL M i m H w m t x w Ids LO r u a cc z O LL J S. 4- ^W W s N aA .21 CL 0 o) d' Ln CL LL cc d O c O i2 �- v Q a m QV d m C l0 N 0 a 0 W wo a a o W u O W O o 00 li 0 h W txo a o d O CL vi 00 0 O h 4 d m d v O cci i y Ca y O � v a c O 3r O ca ca �7:$ �0 V � t7 Q) O O O Qi �- > u O U CL O v w h EXHIBIT 2 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR GOLF CONTRACTOR SERVICES FOR THE CITY OF DENTON PARKS DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5490- AWARDED TO PREMIER JUNIOR GOLF DEVELOPMENT, LLC IN THE THREE (3) YEAR NOT-TO-EXCEED AMOUNT OF $300,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for golf contractor services 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 CONTRACTOR AMOUNT 5490 Premier Junior Golf Development, LLC $300,000 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. EXHIBIT 2 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 File 5490 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 proposals. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12014 CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY - BY: EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND PREMIER JUNIOR GOLF DEVELOPMENT, LLC RFP 5490 THIS CONTRACT is made and entered into this day of A.D., 2014, by and between Premier Junior Golf Development, LLC a corporation, whose address is 8304 Blacktail Trail, McKinney, TX 75070 -7916, 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 to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products and /or services in accordance with the City's document RFP # Golf Contractor, 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 and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) City of Denton RFP 5490 (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 "); (g) Contractor's Best and Final Offer (BAFO). (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." Page 1 RFP 5490 EXHIBIT 3 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. CO'NII "II ! OII� BY: AUTHORIZED Sn4:a A... .TUBE Name:--... _......_ Title; /G. PHONE NUMBER scyr, EMAILA DRESS CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: GEORGE C. CAMPBELL, CITY MANAGER BY: Date: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY FICYA Page 2 RFP 5490 EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $300,000. Pricing shall be per Exhibit D attached. 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. Fees and Payment 1. 100 percent of revenue collected from the sales at driving range will be retained by the City of Denton, which includes but is not limited to; bucket sales, pro shop sales, concession sales, and facility rentals. 2. The City of Denton requires a nonresident fee be collected from all participants that reside outside the city limits of the City of Denton. All nonresident fees collected will be retained 100 percent by the City. 3. The City of Denton shall register, collect, and retain 20 percent of all fees that are related to golf instruction, lessons, camps, clinics, scrambles, tournaments, events and any other golf related activities being organized by the Contractor. All fees for all golf related services, activities, and merchandise at the North Lakes Driving Range, and for all City sponsored programs at Robson Ranch will be collected by the City of Denton. No fees can be collected by the Contractor at any time. 4. 80 percent of fees collected for golf instruction, lessons, camps, clinics, scrambles, tournaments, events, and any other golf related activities being organized by the Contractor will be paid to the contractor. The Contractor will be paid once per month. 5. All fees charged must be approved by the City of Denton. Any changes to the fee schedule must be approved by the City of Denton prior to implementation. 6. All fees paid for private lessons and programs outside of normal operating hours must be given to the City of Denton. Page 3 RFP 5490 EXHIBIT 3 Exhibit A Special Terms and Conditions Scope of Services 1. The Contractor agrees to retain control and to give full attention to the fulfillment of this Contract, and agrees this contract will not be assigned or sublet without the prior written consent of the City. 2. The Contractor will provide competent golf instruction for all ages and levels of play, and enthusiastically encourage golf participation by planning activities to promote the sport and fellowship in the community. The Contractor will prepare and organize a variety of golf programs including classes, camps, clinics, private instruction, home school golf instruction, scrambles, tournaments, and a variety of other golf related programs and events. In addition, the Contractor will assist in marketing the City's golf programs to the local school districts, universities, and other organizations by providing demonstrations and informational materials, and working with the school districts and universities' golf coaches. 3. The Contractor will provide programs at The North Lakes Driving Range and the Robson Ranch Golf Course, based on availability. 4. The Contractor will provide patrons of the City of Denton with excellent customer service and a positive golf experience. Patrons will be treated courteously and respectfully. The Contractor shall be patient and polite when dealing with patrons regardless of the circumstances. 5. The Contractor must leave at least' /4 of the tee boxes available for public use during peak times, with the exception of large City special events which require the use of all tee boxes. Marketing 1. The Contractor must submit a schedule of golf programs and fees at specified deadlines as set by the department's Driving Range Coordinator. All golf programs will be listed in the Denton Parks and Recreation's PLAY Guide and online at www.dentonparks.com. Any changes to the fee schedule must be submitted to the Driving Range Coordinator for review prior to being implemented. 2. No signs, advertising materials, posters, or other such material shall be posted on City of Denton property without permission from the Tennis /Driving Range Supervisor. 3. City of Denton shall promote golf programs through its various marketing tools, including, social media, media releases, and flyers using standardized formats for these tools. The Contractor will be responsible for meeting print deadlines for all programs offered. 4. Contractor agrees to distribute and collect program evaluations from golf patrons when requested. Page 4 RFP 5490 EXHIBIT 3 Exhibit A Special Terms and Conditions Contractor's Staff Requirements The Contractor must be a current Professional Golfers Association (PGA) Member, which has successfully completed level 3 of the PGA Professional Golf Management (PGM) Program. If the Contractor plans to use assistants, or subcontractors as instructors, 50 percent must at least be a current PGA Apprentice. (A PGA Apprentice has been accepted into the PGA PGM Program, but has not yet completed level 3.) All other assistants, subcontractors, and /or instructors must be competent to perform instruction. At least 50 percent of instructional services must be personally administered by the Contractor. 2. It will be the responsibility of the Contractor to supply necessary labor for all of their golf programs. 3. The Contractor and any assistants, subcontractors or support personnel shall complete a national background history check with the City of Denton prior to instructing. Background checks must be completed on an annual basis. City of Denton shall retain the right to prohibit anyone from working based on the results of the annual background check. 4. Discrimination prohibited. The Contractor, with regard to the work performed under this agreement, will not discriminate on the grounds of race, color, national origin, religion, creed, age, sex, or the presence of any physical or sensory handicap in the selection and retention of employees or procurement of materials or supplies. 5. Consumption of alcoholic beverages, smoking, and use of any tobacco products is prohibited anywhere within the North Lakes Driving Range grounds. 6. The Contractor and any assistant staff shall be at all times neatly and cleanly dressed. Maintenance Equipment and General Operation of the North Lakes Driving Range The Contractor shall be responsible for notifying City of Denton of any maintenance related issues that do not meet the needs of our customers, or pose safety concerns. 2. The City of Denton shall maintain the North Lakes Driving Range, which includes the interior and exterior of the building, all grounds and amenities associated with the driving range, landscaping and irrigation. No adjustments allowed to irrigation without approval of the City of Denton. The Contractor will be responsible for providing all necessary supplies that are needed to operate their programs. The Contractor will be allowed to use City of Denton range balls to conduct golf programs. Page 5 RFP 5490 EXHIBIT 3 Exhibit A Special Terms and Conditions Maintenance, Equipment and General Operation of the North 1,akes Drivin g Range 4. The Contractor,will provide practice clubs to be used by the patrons of the Driving Range who don't have their own clubs. 5. The Contractor and all his /her support personnel will not be permitted to operate any machinery at the driving range including the ball retriever cart, ball washing machine, etc. 6. The City of Denton will hire, train, and evaluate front desk staff for the North Lakes Driving Range. 7. The City of Denton will manage the day -to -day operations of the North Lakes Driving Range. 8. The North Lakes Driving Range will be open seven days per week, and may close on City holidays. The City of Denton reserves the right to close the facility and grounds for maintenance. The Contractor has the right to submit a written request to the City to change hours to better meet the needs of our citizens. The City reserves the right to change the hours of operation. 9. The City of Denton may close the facility during inclement weather or when the temperature and /or wind chill is below 38 degrees Fahrenheit. Building Access 1. If it is determined that The Contractor will need access to the North Lakes Driving Range building outside of normal operating hours in order to offer programs, the Contractor will be given building access including keys, key cards, and alarm codes. 2. All fees paid for private lessons and programs outside of normal operating hours must be given to the City of Denton. 3. The Contractor will be responsible for securing the building and its equipment, supplies and inventory if utilizing the building during non - operating hours. Page 6 RFP 5490 EXHIBIT 3 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. Page 7 RFP 5490 EXHIBIT 3 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 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 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 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. Page 8 RFP 5490 EXHIBIT 3 6. FINAL PAYMENT AND CLOSE -OUT: 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 1 % or greater. If an overpayment of l % 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 Page 9 RFP 5490 EXHIBIT 3 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 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 just 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 shall 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 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 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 Page 10 RFP 5490 EXHIBIT 3 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 Contractor, the City may remove the Contractor from the City's vendor list for three (3) years Page 11 RFP 5490 EXHIBIT 3 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 breach of any legally imposed strict liability standard. Page 12 RFP 5490 EXHIBIT 3 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 901 B Texas Street Denton, Texas 76209 Page 13 RFP 5490 EXHIBIT 3 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 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 Page 14 RFP 5490 EXHIBIT 3 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. 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 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. Page 15 RFP 5490 EXHIBIT 3 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. 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 Page 16 RFP 5490 EXHIBIT 3 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. 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. Page 17 RFP 5490 EXHIBIT 3 35. 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 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. 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. Page 18 RFP 5490 EXHIBIT 3 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 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 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 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. Page 19 RFP 5490 EXHIBIT 3 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- (]) 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. I Oa - l Od) 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 ". 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. littp://www.access.gpo.gov/davisbacon/tx.htmi Page 20 RFP 5490 EXHIBIT 3 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. 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. Page 21 RFP 5490 EXHIBIT 3 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. Page 22 RFP 5490 EXHIBIT 3 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. Page 23 RFP 5490 EXHIBIT 3 • 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 00�„ 0.00 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. Page 24 RFP 5490 EXHIBIT 3 [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). [ ] 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. Page 25 RFP 5490 EXHIBIT 3 Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for provided. Such policy shall include as "Named subcontractors as their interests may appear. Commercial Crime 100% of the completed value shall be Insured" the City of Denton and all 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 26 RFP 5490 EXHIBIT 3 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. Page 27 RFP 5490 EXHIBIT 3 E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2. no later than seven 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: 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; Page 28 RFP 5490 EXHIBIT 3 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, 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 29 RFP 5490 EXHIBIT 3 Exhibit D FOR ER INTEREST QUESTIONNAIRE CONFLICT OF � � M CIQ For vendor or other person doing business with local governmental entit 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 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. Name of person who has a business relationship with local governmental 1 P p g tal 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'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? 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? 0 Yes 0 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 0 No D. Describe each affiliation or business relationship. 4 ......_ m m s ... Signature of P erson doin busines with the governmental Date entity Page 30 RFP 5490 EXHIBIT 3 March 4, 2014 Ms. Jody Word City of Denton Dear Ms. Word Shannon Cox 123 Prairie View Drive Murphy, TX 75094 Phone: 972 - 384 -0415 Mobile: 214 - 886 -2316 scox@premierjgtour.com I would like to submit the proposal for Premier Junior Golf Development regarding the opening for Golf Operator / Instructor at North Lakes Driving Range. As PGA Professionals we bring over seventy -one years of Golf Operations / Instruction experience. Please accept our resume regarding RFP #5490. Thank you in advance for your time and consideration. Kind regards, Shannon Cox Enclosure Page 31 RFP 5490 EXHIBIT 3 CITY OF DENTON RFP FOR GOLF CONTRACTOR ATTACHMENT C BUSINESS OVERVIEW QUESTIONNAIRE AND FORMS 1. Contractor Name: - - - -- Premier Junior Golf Development, LLC 2. Address (Principal Place of Business): - - -- -8304 Blacktail Trail, McKinney Texas 75070 3. Does your company have an established physical presence in the State of Texas, or the City of Denton ? - - -- -Yes 4. Tax Payer ID #: - - - -- 46- 1626028 5. Email Address of Primary contact :----- scox @premierigtour.com (Shannon Cox) 6. Website Address :----- http: / /premierjgtour.com 7. Telephone: - - -- -(214) 886 -2316 8. Fax: -- - - -N /A 9. Other Locations: - - -- -Los Rios Country Club, Mansfield National Golf Club, Ridgeview_Ranch Golf Club, Woodbridge Golf Club, Frisco Lakes Golf Club 10. Organization Class: - - - -- Limited Liability Company Partnership Individual Corporation Association 11. Date Established: - -- December 2012 12. Former Business Name: - - -- -Bruce Sims School of .Golf 13. Date of Dissolution: - - - -- December 2012 14. Subsidiary of. N/A 15. Historically Underutilized Business: Yes orNo / N/A 16. Principals and Officers: Shannon Cox Co -Owner Bryan Ham Co -Owner Bruce Sims Co -Owner Page 32 RFP 5490 EXHIBIT 3 CITY OF DENTON RFP FOR GOLF CONTRACTOR Please detail responsibilities with the name of each principal or officer. Shannon Cox — Responsible for complete day to day operations and oversight of tournaments, clinics, camps and individual instruction. Bryan Ham — Responsible for execution of new client paper work, QuickBooks, record keeping, receivables, payables and website maintenance. Bruce Sims — Responsible for training up to (7) golf instructors on criteria used in our junior and adult golf programs including scheduling, use of golf training aides and oversee all aspects of safety implementation. 17. Key Personnel and Responsibilities: Randy Beeney, lead instructor (USGTF Certified) Robert Whitley lead instructor (USGTF Certified) Scott Lindgren, lead instructor (USGTF Certified) Marcelo McDougal, golf instructor (PGA Certified) Jeff Yantz, golf instructor (USGTF Certified) Please detail responsibilities with the name of each key personnel. - - - -- Listed above 18. Number of Personnel by Discipline: Not applicable _ Discipline Number of Staff 5 # Licensed or Certified 5 19. Services Provided by Contractor: a. Please provide a detailed listing of all services that your company provides. PGA professional golf instruction, junior and adult golf instructional clinics, summer camps for juniors /kids and golf leagues /tournaments for adults. b. Please detail your prior experience working on similar projects with Texas governmental entities. - - - - -We have never worked with a governmental entity. c. Please detail your similar services provided over the past two (2) years. Not applicable for a governmental entity d. Detail documented proof of at least three (3) projects in the past two (2) years. Not applicable for a governmental entity 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. Not applicable for a governmental entity. 48 of RFP #5490 Page 33 RFP 5490 EXHIBIT 3 CITY OF DENTON RFP FOR GOLF CONTRACTOR 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. The Proposer must be a current Professional Golfers Association (PGA) Member, which has successfully completed level 3 of the PGA Professional Golf Management (PGM) Program. Provide at least three (3) references from businesses where vendor has performed requirements in attached specifications. 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. - - - - -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). - - - - -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? - - - - -No hw2 9WA)y osha g�a ls/ sliawet)/ wash li,se irc [ fo rnj ?l� floc tyl1 "rAi�81 �^LU.)S&,p toc level =l &p keyvalue =1926 25. Please indicate the total number of projects your Firm has undertaken within the last five years? We have expanded our business into 5 different locations over the last five years. 26. 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: Premier Junior Golf Development, LLC 8304 Blacktail Trail McKinney, Texas 75070 b. Company's majority owner principle place of business: Same as above c. Ultimate Parent Company's principle place of business: Not applicable 49 of RFP #5490 Page 34 RFP 5490 EXHIBIT 3 CITY OF DENTON RFP FOR GOLF CONTRACTOR 50 of RFP #5490 Page 35 RFP 5490 EXHIBIT 3 CITY OF DENTON RFP FOR GOLF CONTRACTOR 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 Signature No Exceptions taken to this RFP. Company Date n rig Iuffilre `Company 51 of RFP #5490 Page 36 RFP 5490 EXHIBIT 3 CITY OF DENTON RFP FOR GOLF CONTRACTOR ATTACHMENT F 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. RE IERI NCE ONE GOVERNMENT /COMPANY NAME: Woodbridge Golf Club_ LOCATION: 7400 Country Club Drive, Wylie Texas 75018. CONTACT PERSON AND TITLE: Paul Kenney /General Manager TELEPHONE NUMBER (469) 685 -15`22 SCOPE OF WORK: Conduct junior golf development programs CONTRACT PERIOD: 05/01/13 to 05/01/1 IIIrFERIg:NCE TWO GOVERNMENT /COMPANY NAME: Ridgeview Ranch Golf Club LOCATION: 2701 Ridgeview Drive, Plano Texas 75025 CONTACT PERSON AND TITLE: Cesar Abando /Operations Manager_ TELEPHONE NUMBER: (972) 390-1039,______ SCOPE OF WORK: Conduct junior and adult golf developmental progranis CONTRACT PERIOD: 01/01/09 to 12/31/16 REFERENCE I+ I "HItEE GOVERNMENT /COMPANY NAME: Plano Sports Authority LOCATION: 6500 Preston Meadow, Plano Texas 75024_,_ „_ „ „,,...... CONTACT PERSON AND TITLE: Kim Wadley TELEPHONE NUMBER: (972) 208 -3802 SCOPE OF WORK: Conduct all junior golf atctivities, CONTRACT PERIOD: 03/01/13 to 03/01/16 53 of RFP #5490 Page 37 RFP 5490 EXHIBIT 3 CITY OF DENTON RFP FOR GOLF CONTRACTOR ATTACHMENT G CONFLICT OF INTEREST QUESTIONNAIRE _.._ FORM CIQ For vendor or other 1i i son doing business with local �a�lvcritttma�ittrul t�a'r.tity This questionnaire reflects changes made to the law by I.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 p offense under this section is a Class C misdemeanor. _ ...........IT._ � __.._.� ...._. Name of erson who has a business relationship with local governmental entity. µ Check this box if you are filing an update to a previously filed questionnaire. ,..... ...� _W .... (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 _r � .._hi . g 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 W_j 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? 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? Yes No D. Describe each affiliation or business relationship. Signature of person doing business with the governmental entity Date 54 of RFP #5490 � -..... .__.,.. ..... Page 38 RFP 5490 EXHIBIT 3 CITY OF DENTON RFP FOR GOLF CONTRACTOR 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 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 Procurement Commission HUB Program. All companies seeking information concerning DBE certification are urged to contact. State of Texas HUB Program – 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/hub/ 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. COMPANY NAME: REPRESENTATIVE: ADDRESS: —.. _. CITY, STATE, ZIP: TELEPHONE NO. FAX NO. Indicate all that apply: Minority -Owned Business Enterprise Women -Owned Business Enterprise Disadvantaged Business Enterprise Page 39 RFP 5490 EXHIBIT 3 CITY OF DENTON RFP FOR GOLF CONTRACTOR IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: APPROVED AS TO FORM: ANITA BURGESS, CITY ATTORNEY M. ATTEST: �r .. City of OWNER (SEAL) f ONTRAC A, R MAILING ADDRESS PHONE NUMBER FAX NUMBER BY /AUTHORIZED SIGNATURE PRINTED NAME, TITLE 57 of RFP #5490 Page 40 p#Tgm� bwy F 7 RATE OF RFP 5490 EXHIBIT 3 CITY OF DENTON RFP FOR GOLF CONTRACTOR 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 1 et seq., and which arise under the antitrust laws of the State of Texas, Tex. Bus. & Com. Code, Section 15.01, PI-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: 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. M�1�`lA1VD ADDRESS OF�(,OMPAN�Y.� Z::�° ���i 'I'11t"l't1i.IyI�1�1tf'''I�1�TA, �1"Vf: 1 F r ti t °tt w Sig e 7` a��i ntatur U, 5 rt.., ._. °1. !/ ].1 „t f ' f.)� d .. Date' f .....��ti w...... �. Name 1 Title Tel. Nc°r._( a 4�( Fax No.._� Email ..R....1`,` �.� tfy,,�+.r .�. 58 of RFP 45490 Page 41 RFP 5490 EXHIBIT 3 .4 F.., 94 0 �ul 0 0 * pq III � �II101111� I rF �r �d IP�f 11�9A�. A Myp m ���� �, 1Fl�w. � ✓A 'W 1� J, Y bP C G� �Oly A�. k ^ V � � EXHIBIT 3 .4 F.., 94 0 �ul 0 0 * pq III � �II101111� I rF 1, \ . / y \ \� 2 S® EXHIBIT 3 0 C;) qqll- [ < , 0 \ , " �¥ rillilliel � I ■ 0 tm (U ©� q $ / e |� " � ] �$ PO | | 0 C;) qqll- [ < y-- 0 Q L G 0 N CL L 'ra a G O '� a+ G al Qi rz L O d a � c E o m u Z H L N G 4n o O Q O o d U U or O u e u ;O k W O v C 0 v L O � O ` O � u1 U � Z 3 c O U s aj LL u J � Y C i E 0 yo c °1 'o d � � t 4, O N 123 to G C .S . O u a irk d C ~ ±+ cn r G 0. cP Ln v U L a x LL v v W w � � cn m m r m a m I°- d c cr d u .2 ar 3 O CL` 0 al CL kT m C 15 7 u c 4ri f`a 0a O d al L E 2 V- {a+l lJ aJ O W Vim. 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V � O � V 0 LO a LL Q' u 4—J fdb uF Q O (J aV 0 4— O V O .C: �I O o � U EXHIBIT 3 " d �1 r O O � N •� V Ln Ln • _ 4 O c s � V M �— cn O U V v 4-- U Q LL r- 4-- � � O V � Q L r- 0 O N (J V .O c� �u O V) Q Ln C- L) rd O U LI- O V c� .O Cd z A W V � Nw V .O c� 4-J O •- U V O L4- O V Q � s O V U 4-J 4-- � O � V E — O p U •- V O `- (1) c O O O A 0 LLm a Of EXHIBIT 3 C, LO LO a- U- Q� CL EXHIBIT 3 F-- Z w J J O ce Z w I 'O Ln c� I Qi N. L > Q.J L N O to s 4- O C: to O tA N L N 4J 4--' = O 'E O LA Ln O d- �tq s N to n O 00 U L L 42 L L � U aJ E L (z C � O -0 L � Q +- Ln s a� 4- s -O +.J s� o > E 12 s L u 4J ws . 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N •- -a O UU 4-J IIIIIIIIIIIII o Q u L E Qj IIIIIIIIIIIII� O 0 -0 (� II -0 F- i Q O E N L O O 4-J rd > III VIII E 'E I- L N O S U :3 Q r O •� L O O Z 4-J "O _ LL '0 `+- 4. s III (v IIII�Illllllllli C) a O > O N IIII rd U � Id s _ u "� O III -0 Ln ft U s -� cd s cn 4- in NO :D O O :3 r ._ . 2�o E°N � cn s Ln (V VIII rd a) u r 4 a) .� U = Ln u 4 Q 0 s a0-1 E Q.�.s QQ 0 L Q a� 4-J 0 a 04 EXHIBIT 3 O rod,, 1ld dW O O 04 EXHIBIT 3 V 1 O O O o 4- co •— V a� (3) LA 4-J Y I V - 4J V U •- - O-0 O E O w s c� V O � 4— O s •� •V W •V `p V) I O •� p to "� -� • � V O V Q s (3) Z cL) 4 � v O � cn O s • — . — T w w = U �-0 O U CL u V oC V 1 O o 4- •— V i LA Y I T rd Ln U •- O O c� V O W •V `p V) I p O V O V Q s (3) Z cL) 4 s � � 4J (V • — . — L. = U 0 zo a LL w ru er 4J c V: ir o 10 Z al EXHIBIT 3 .1 rW en I CA o V4 M < 0 0 E x 7- .7 Q 0 o .1 rW en I EXHIBIT 3 mp o ee zo Raw !v INN I ■ 1 1 0- EXHIBIT 3 �r 9¢ y d ' uo EXHIBIT 3 !2= O V' L O --� O L c 0 �E ap.. C m GJ °' a `� L 2 m a Oda m (di a y i°- O O 00 U ® 'C O N O O E o m o fD U C z a1 d o \ O a Q o L u1 aJ 'O u d O _ O O O N C O O a io � r .0 Lc) Q N O o 0 Q O 4� ea w v O by m c v Q v ai c (n O C k O vi O r N 1 N _U •C � N � y t bA a) yd•, O C 7 O O L. F O Fy CL. O y N a. 'o �•+ U C 'D io C Y O o U N + W O y� 4i y p 'NO I C O N b0 C L U (D s. C 3 a N > r w o• 0 O CL 4-. O .O N m m m O O CA C E v ro a �. c .0 d: d a+ a) ° N in U (4-r .O U Qj O 0 C) CO Q "O •C bA V > Cd c d a a a. U N +d•' ? O T'. u v v G o a C Z 3 o Q O c o V ° a Y N rn ai —'' E LL. ZZ: ,c, cn M J H Z d U cd O. L O cr a ul O 3 N C O Y U L o C3 131 d ) 0ai �i c 3 4-J QJ i u (n — m w a a1 ° � 6 � 3 C o - ° �' t N C 7 ti O +' Oy cc bA o °c' a a` CL b0 0 N j cu U O C �+ d , • V C ` s U v a' O t y c vdi a0i a� u"i `o cr- Q al ..... +J Cl a d C d v o C ii N a V t d v O Z LLLI = ci N L E E X u- Qu > d W 1f- a CO cf0 a ° 0 m a co to a, 01 a7 d City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0598, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Parks and Recreation CM /ACM: John Cabrales, Jr. Date: October 7, 2014 SUBJECT Consider approval of the Public Art Committee's recommendation to select Karmien Bowman as the artist for the outdoor sculptures titled "Leap Frogs" at North Lakes Park as public art for the City of Denton; and declare an effective date. The sculptures will cost $26,000 and will be consistent with the City of Denton Public Art policy approved by Resolution R2013 -021, and will be funded with Hotel Occupancy Tax revenues previously authorized and encumbered for such purpose. The Public Art Committee recommends approval with a vote of 6 -0. BACKGROUND On August 20, 2013, City Council adopted Resolution No. 2013 -021 to the Public Art policy that establishes the Public Art Committee to serve as an advisory board to the City Council. This Public Art Committee, established by separate ordinance, will make recommendations on: • Commissioning, placing, and installing of public art • Implementing of funding mechanism(s) for public art • Effective and efficient management of public art • Ongoing maintenance of public art • Accessioning, deaccessioning and resiting of public art The sculptures titled "Leap Frogs" represent nature and recreation. The oversized frogs will be easily accessible so one can approach, touch and feel their textures while playing on them. The creatures are derived from the artists' childhood fantasy and have bumps, strange webby feet, and shiny eyes. Through her sculptures, the artist hopes to share the carefree memories of endless summer evenings playing leap frog with her childhood friends. The four frogs will be cast in bronze, weigh about 70 -90 pounds each and will be anchored to a concrete pad in the shape of a wavy beach. The frogs will be 28 inches long, 21 inches wide, 18 inches in height, and sit approximately seven feet apart. The patina selected can vary from shades of brown to various shades of green. The total footprint of the artwork will be about 30 feet long and 40 inches wide. This is the first piece of public art to be located in North Lakes Park. RECOMMENDATION City of Denton Page 1 of 2 Printed on 10/2/2014 File #: ID 14 -0598, Version: 1 Staff recommends City Council approve the Public Art Committee's selection of Karmien Bowman as the artist to create the outdoor sculptures "Leap Frogs" for the City of Denton. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Public Art Committee made recommendation of artist selection on September 4, 2014. FISCAL INFORMATION The design, materials, construction and installation of the "Leap Frogs" sculptures will cost $26,000 and be funded from 2014 -15 HOT Funds. EXHIBITS 1. Public Art Committee Meeting Minutes of September 4, 2014 2. Illustration of the sculptures Respectfully submitted, Emerson Vorel, Director Parks and Recreation Department Submitted by: Janie McLeod Community Events Coordinator City of Denton Page 2 of 2 Printed on 10/2/2014 EXHIBIT 1 DRAFT PUBLIC ART COMMITTEE MINUTES September 4, 2014 Members present: Victoria DeCuir, Guy Bruggeman, Mike Barrow, Jim Clement, Millie Giles, and Brian Wheeler Members absent: Krissi Oden and Glen Farris Ex Officio absent: Kimberly Karl Staff present: Janie McLeod and Emerson Vorel CALL TO ORDER. Chair DeCuir called the meeting to order at 4:05 p.m OATH OF OFFICE TO NEW MEMBER — Millie Giles, representing GDAC, was given the oath and sworn into office. The committee introduced themselves to Ms. Giles. McLeod announce that Hannah had resigned from the PAC due to personal matters that needed her attention. CONSIDER APPROVAL OF THE PUBLIC ART COMMITTEE MINUTES FOR: August 7, 2014 ACTION ITEMS: Election of Chair. Wheeler made a motion to re -elect DeCuir as chair for the committee and Bruggeman seconded the motion. The motion passed with a vote of 5 -0. Clements arrived at the meeting. Election of Vice Chair. Bruggeman nominated Clement as vice chair and Wheeler seconded the motion. The motion passed with a vote of 6 -0. Recommendation of Artist for the 2015 Project. McLeod share information on the four proposals submitted for North Lakes Park. The committee discussed each bid and decided that the "Leap Frogs" would be the most park user friendly artwork. Bruggeman discussed how successful interactive art has been in other locations. Barrow commented that the frogs will appeal to a variety of ages and could be considered discovery art. DeCuir suggested that the art be separated from the playground equipment so it wouldn't be considered as a part of the play equipment but could still be interactive art. ACTION: Wheeler made a motion to accept the "Leap Frogs" bid by Karmien Bowman as the artist for the North Lakes Park project. The motion was seconded by Clement and passed with a vote of 6 -0. DISCUSSION ITEMS: Consider the following items which may be moved to action items at the next meeting: Public Art Dedication on September 20. McLeod reported that the art dedication for the "Pops Carter" sculpture in Quakertown Park is on schedule for September 20 at noon. The frame will be set the first part of next week and the rest of the art will be installed on September 13. Location for Lithogram Artworks. McLeod reported that the PAC had requested staff look at the new animal shelter as a location for the new lithogram artwork to be purchased. McLeod went to the site and there are areas in the conference /training room and along the hallways. The PAC discussed possibly having plaques with more information on the artwork and the artist when installing new art. McLeod will look into the possibilities. I -35 Development Update. Vorel reported that he had staff use a router to cut out the design of the Courthouse for the I -35 development. He said that areas looked like a stencil when tables were left to connect the lines of the art. DeCuir asked if UNT will be installing any work on the bridge. Vorel said that if UNT's budget will allow they will have art on two of wall of the underpass and pole lights that will accept banners. OTHER BUINESS: Clement inquired about the status of the public art master plan. Vorel commented that he is finishing the contract. DeCuir asked if the PAC could review the contract prior to being signed. There being no further business, the meeting was adjourned at 5:48 p.m. EXHIBIT 2 Sketch: a Viewf above Cast Bironze weighling about 70-90 #s anchored to concirete wavy Ibeaach.- pad undeirineath, for low rnah,itenance. Three Toadl`rzpgsv 28"l.-x21Wx1,8" H albout 7 feet apart, randornly near each other or lin as curved Illirne . One ToadFrog about 12 feet away from tht-.a group This groupling is fle)(Ne dependMg on lay of the land, They cain face towairds as play area, near as bench, or at specfi c sfte 4mficated. Late afternoon shade is opdmum. Nature and play interactive sculpture for leapfirog, for photo ops, orjUst ryms4-ig . Patina can vary., cowboy birown, coppeir green, dark chiroirne green over Iblack, Gireen over Ibro wn. Configured here: foot print is about 30ft long X 40"W Tory tugs on exposed aggregate concrete "wavy beach" (sidewalk) six inches deep. 30 ft Long 6"Deep" 36"-40"Wide Elevation Wavy Beach ............ City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0603, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Denton Municipal Electric CM/ ACM: Howard Martin, Utilities DATE: October 7, 2014 SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Purchase Agreement, by and between the City of Denton, Texas, ( "City "), as Buyer and Burch Family Farm, Ltd., (Owner ") as Seller, to acquire (i) fee simple title to an approximate 1.074 acre tract (the "Substation Tract ") located in the W. Roark Survey, Abstract No. 1087 and the J. Severe Survey, Abstract No. 1164, both in Denton County, Texas, located generally along the east line of U. S. Highway 377 adjacent to and east of the Fort Worth Drive Substation Addition, and (ii) fee simple title to an approximate 0.627 acre tract (the "Pump Station Tract ") located in the B.B.B. & C. R. R. Co. Survey, Abstract No. 196 and the J. W. Withers Survey, Abstract No. 1343, both in Denton County, Texas, generally located west and adjacent to the G. C. & S. F. Railroad right of way and running to the west right of way line of F. M. Highway 1830, and (iii) an approximate 0.476 acre ingress and egress easement tract located in the J. Severe Survey, Abstract No. 1164, Denton County, Texas, located generally along the east line of U. S. Highway 377 adjacent to and south of the Fort Worth Drive Substation Addition, Denton County, Texas, and (iv) an approximate 1.802 acre electric utility and communication easement located in the W. Roark Survey, Abstract No. 1087, Denton County, Texas, located generally east of the Ft. Worth Drive Substation Addition and (v) an approximate 1.793 acre temporary construction and access easement located in the W. Roark Survey, Abstract No. 1087, Denton County, Texas, located generally north of and adjacent to the 1.802 acre tract; (the "Property Interests "); all for the purchase price of One Hundred Sixty Six Thousand Five Hundred Eighty Four Dollars and No Cents ($166,584.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "A ", (I) authorizing the expenditure of funds therefore; (II) providing a savings clause; and (III) providing an effective date. (Denton Municipal Electric Fort Worth T1 Addition Expansion, Denton Municipal Electric Fort Worth Drive and FM 1830 Distribution, and Hickory Creek Detention Facility projects: Burch Family Farms Ltd.) BACKGROUND The described substation and easements are necessary to provide additional land to accommodate the construction and operation of the improved electric transmission and distribution system. As to the Pump Station Tract, the tract is necessary to allow for access to the prospective City of Denton wet weather pump and detention facility property tracts. In June and August 2014 respectively, initial and final Offer(s) to Purchase were delivered to the property owner, with several meetings between staff and the owner following. There have been continuing interactive City of Denton Page 1 of 2 Printed on 10/2/2014 File #: ID 14 -0603, Version: 1 negotiations between staff, property owner and property owner's attorney. Approval of the ordinance authorizes staff to close the purchase transaction with the property owner, as final 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) City Council - September 16, 2014 (Closed Meeting - council briefing) PUB - September 8, 2014 (Recommend approval of Ordinance, Vote 5 -0) City Council - July 5, 2014 (Final Offer to Purchase Ordinance 2014 -235) City Council - June 17, 2014 (Offer to Purchase Ordinance 2014 -185) PUB - June 9, 2014, Consent Agenda (Offer to Purchase recommendation) FISCAL INFORMATION The 1.074 acre fee Substation Tract, 0.476 acre ingress egress easement, 1.802 acre electric utility and communication easement and the 1.793 acre temporary construction and access easement are 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 0.627 acre Pump Station Tract is being funded by Wastewater capital project bonds allocated for the Graveyard Branch Lift Station and Force Main Project. EXHIBITS 1. Location Map 2. Ordinance Respectfully submitted: Phillip Williams General Manager Electric Administration Denton Municipal Electric Prepared by: LuAnne Oldham Real Estate Specialist City of Denton Page 2 of 2 Printed on 10/2/2014 NORTH Z U) E5 W a Y CORBIN �4y� h PRIVATE F s W SO NTS RNB EXHIBIT 1 attachment to AIS .v INDSEY 1. J} w ROSELAW N N w �F h Q I SION IVAT COUN-fRY V HOBSON � HI� O�� m U O SANDER U �.........5..�.te..........� YAN Exhibit 1 to the PUB AIS LOCATION MAP ❑. z M �I EXHIBIT 2 sAlegal \our documents\ ordinances \14 \ordinance -burch counteroffer.doe ORDINANCE NO. 2014- AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PURCHASE AGREEMENT, BY AND BETWEEN THE CITY OF DENTON, TEXAS, ( "CITY "), AS BUYER AND BURCH FAMILY FARM, LTD., (OWNER ") AS SELLER, TO ACQUIRE (I) FEE SIMPLE TO AN APPROXIMATE 1.074 ACRE TRACT (THE "SUBSTATION TRACT ") LOCATED IN THE W. ROARK SURVEY, ABSTRACT NO. 1087 AND THE J. SEVERE SURVEY, ABSTRACT NO. 1164, BOTH IN DENTON COUNTY, TEXAS, LOCATED GENERALLY ALONG THE EAST LINE OF U. S. HIGHWAY 377 ADJACENT TO AND EAST OF THE FORT WORTH DRIVE SUBSTATION ADDITION, AND (II) FEE SIMPLE TO AN APPROXIMATE 0.627 ACRE TRACT (THE "PUMP STATION TRACT ") LOCATED IN THE B.B.B. & C. R. R. CO. SURVEY, ABSTRACT NO. 196 AND THE J. W. WITHERS SURVEY, ABSTRACT NO. 1343, BOTH IN DENTON COUNTY, TEXAS, GENERALLY LOCATED WEST AND ADJACENT TO THE G. C. & S. F. RAILROAD RIGHT OF WAY AND RUNNING TO THE WEST RIGHT OF WAY LINE OF F. M. HIGHWAY 1830, AND (III) AN APPROXIMATE 0.476 ACRE INGRESS AND EGRESS EASEMENT TRACT LOCATED IN THE J. SEVERE SURVEY, ABSTRACT NO. 1164, DENTON COUNTY, TEXAS, LOCATED GENERALLY ALONG THE EAST LINE OF U. S. HIGHWAY 377 ADJACENT TO AND SOUTH OF THE FORT WORTH DRIVE SUBSTATION ADDITION, DENTON COUNTY, TEXAS, AND (IV) AN APPROXIMATE 1.802 ACRE ELECTRIC UTILITY AND COMMUNICATION EASEMENT LOCATED IN THE W. ROARK SURVEY, ABSTRACT NO. 1087, DENTON COUNTY, TEXAS, LOCATED GENERALLY EAST OF THE FT. WORTH DRIVE SUBSTATION ADDITION AND (V) AN APPROXIMATE 1.793 ACRE TEMPORARY CONSTRUCTION AND ACCESS EASEMENT LOCATED IN THE W. ROARK SURVEY, ABSTRACT NO. 1087, DENTON COUNTY, TEXAS, LOCATED GENERALLY NORTH OF AND ADJACENT TO THE 1.802 ACRE TRACT; (THE "PROPERTY INTERESTS "); ALL FOR THE PURCHASE PRICE OF ONE HUNDRED SIXTY SIX THOUSAND FIVE HUNDRED EIGHTY FOUR DOLLARS AND NO. CENTS ($166,584.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE PURCHASE AGREEMENT (THE "AGREEMENT "), AS ATTACHED TO THE ORDINANCE AND MADE A PART THEREOF AS EXHIBIT "A ", (I) AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; (II) PROVIDING A SAVINGS CLAUSE; AND (III) PROVIDING AN EFFECTIVE DATE. ( DENTON MUNICIPAL ELECTRIC FORT WORTH T1 ADDITION EXPANSION, DENTON MUNICIPAL ELECTRIC FORT WORTH DRIVE AND FM 1830 DISTRIBUTION, AND HICKORY CREEK DETENTION FACILITY PROJECTS: BURCH FAMILY FARMS LTD.) WHEREAS, the City of Denton ( "City ") made a bona fide offer to the Owner to purchase the Property Interests; WHEREAS, Owner has made a counteroffer to the Final Offer of City; WHEREAS, City is amenable to the counteroffer, and finds that it is in the best interest to agree to same; NOW, THEREFORE, Exhibit 2 to AIS 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 Purchase Agreement, 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 $166,584.00 and other consideration, plus costs and expenses, all as prescribed in the Purchase Agreement; and (ii) any other documents necessary for closing the transaction contemplated by the Purchase Agreement; and (b) to make expenditures in accordance with the terms of the Purchase Agreement. 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. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY EXHIBIT "A" TO ORDINANCE 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 PURCHASE AGREEMENT (the "Agreement") is dated ey'a 2014, but effective as of the date provided below, between Burch Family I�arm, Ltd., a Texas limited partnership (referred to herein as "Owner") and the City of Denton, Texas ("City"). WITNESSETH: WHEREAS, Burch Family Farm, Ltd., a Texas limited partnership, is the Owner of a tract of land (the "Land") in the W. Roark Survey, Abstract No. 1087, the J. Severe Survey, Abstract No. 1164, the B.B.B. & C.R.R. Survey, Abstract No. 196, and the J. W. Withers Survey, Abstract No. 1343, Denton County, Texas, being affected by the public improvement projects called (i) the Fort Worth Drive Substation Expansion Project ("Substation Project") and (ii) the Fort Worth Drive 1.830 Tie In Project (the "Distribution Project"); and (iii) the Hickory Creek Detention Facility Project (the "Pump Station Project"), (the Substation Project, Distribution Project and the Pump Station Project are collectively referred to herein as the "Projects"); WHEREAS, City is in need of certain (i) fee simple lands, being a part of the Land; (ii) an ingress and egress easement, (iii) an electric utility and communication easement, and (iv) a temporary construction and access easement, being a part of and encumbering the Land, related to the Projects; and WHEREAS, it is desirous of both parties to stipulate and agree to the terms and conditions associated with the purchase of the necessary real property interests for the Projects; NOW, THEREFORE, for Ten and No/100 Dollars ($10.00), and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. A. At Closing, the Owner shall grant, execute, and deliver to the City (i) a Special Warranty Deed (the "Substation Deed"), conveying to the City, subject to the reservations described below, the tract of land being described in Exhibit "A" and depicted in Exhibit "B" to that certain Substation Deed, and other interests as prescribed therein (the "Substation Fee Lands"), the Substation Deed being attached hereto as Attachment I and made a part hereof, related to the Substation Project; (ii) a Special Warranty Deed (the "Pump Station Deed"), conveying to the City, subject to the reservations described below, the tract of land being described in Exhibit "A" and depicted in Exhibit "B" to that certain Pump Station Deed, and other interests as prescribed therein (the "Pump Station Lands") (the Substation Lands and the Pump Station Lands are collectively referred to herein as the "Fee Lands"), the Pump Station Deed being attached hereto as Attachment 2 and made a part hereof, related to the Pump Station Project (the Substation Deed and the Pump Station Deed are collectively referred to herein as the "Special Warranty Deeds"); and (iii) an Ingress and Egress Easement (the "Ingress and Egress Easement"), in, along, upon, under, over and across the tract of land being described in Exhibit "A" and depicted in Exhibit "B" to that certain Ingress and Egress Easement, the Ingress and Egress Easement being attached hereto as Attachment 3 and made a part hereof, for ingress and egress purposes, as more particularly described therein, related to the Substation Project and (iv) an electric utility and communication easement (the "Electric Utility and Communication Easement"), in, along, upon, under, over and across the tract of land being described in Exhibit "A" and depicted in Exhibit "B" to that certain Electric Utility and Communication Easement, the Electric Utility and Communication Easement being attached hereto as Attachment 4 and made a part hereof, for Electric Utility and Communication Easement purposes, as more particularly described therein, related to the Distribution Project and (v) a temporary construction K and access ouaerncn1 (the , mkme upon, over and ucnwas the {caui of land being described in Exhibit ^A` and depicted in Exhibit '10^` to that certain Temporary Construction and Aocoao Easement, the Temporary Easement being mUusbed hereto as Attachment 5 and /nm]c o part hereof, for Temporary Construction and /\oscmm Easement purposes, as more particularly described therein, rc|u1cd to the Distribution Project (all collectively referred to herein uothe "Easement Lands"). The0 Special Warranty Deeds shall ie in the form and upon the terms am attached hereto and incorporated herein as "Attachment l" and "Attachment 2", respectively; and (ii) the logzcaa and 8gJomu Ba000zeut shall be in the form and upon the terms as attached hereto and incorporated herein as `^/\1tachrucot 3" (iii) the 2|cu1do Utility and Communication Gumonocut mbuU be in the form and upon the terms osattached hereto and incorporated herein um "Attachment 4'", and (iv) the Temporary Construction and Access Easement shall he in the form and upon the iconm as attached hereto and incorporated herein as ^^A1uchn)eut 5" (tkc Fee Lands and the lSomornent Lands are collectively referred to herein ao the ^'Prop#dy"). D. Owner, subject 1othe lbnkudou of such reservation made herein, shall reserve, for hmc[ its successors and assigns all oil, gas and other minerals ' no and under and that may be produced from the Fee Lands. ()vvncr, its 0000coeorm and umoigum, sbuU not have the right to use o,access the surface of the Fee Lands, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to cspi*ru1ioo and/or production ofthc oil, gum and other ooiucru\y reserved herein, including without limitation, use or nuucmo of the surface o[the Fee Lands for the location of any well or drill sites, well bores, whether vertical or any deviation frorn vertical, water wells, pit areas, ocimroio activities, tanks or tank batteries, pipelines, roads, electricity orother utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other iu[ioabxoturc or improvement of any kind or type in connection with or related 10 the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used bcrcio` the term "other minerals" aba|| include oil, gas and all associated hydrocarbons, and mba|| exclude (i) all sobotoocom that any nous000bic extraction, mining or other exploration and/or production ruc1bod, operation, process or procedure would consume, deplete or destroy the surface -9 of the Fee Lands; and (ii) all substances which are at or near the surface of the Fee Lands. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 SW.2d 743 (Tex. 1980). As used herein, the term "surface of the Fee Lands" 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. compensation prescribed in this Section 2 is herein referred to as the "Total Monetary Compensation". 3. The Owner shall convey and grant to the City the Property free and clear of all debts, liens and other encumbrances (the "Encumbrances"). The Owner shall assist and support satisfaction of all closing requirements of the City in relation to solicitation of releases or subordinations of the Encumbrances and other curative efforts affecting the Property, if necessary in the discretion of the City. In the event that all Encumbrances are not cured to the satisfaction of City prior to Closing, such shall not be a default hereunder, although Owner may otherwise be in default under Section 10, below. However, if the Encumbrances are not cured as provided herein, City has the option of either (i) waiving the defects related to the remaining Encumbrances by notice in writing to Owner on or prior to the Closing Date, upon which the remaining Encumbrances shall become Permitted Exceptions (herein so called), and proceed to close the transaction contemplated by this Agreement; or (ii) terminating this Agreement by notice in writing to Owner, in which latter event Owner and City shall have no further obligations under this Agreement. 4, Owner stipulates that the Total Monetary Compensation payment constitutes and includes all compensation due Owner by City related to the Project, including without limitation, any damage to or diminution in the value of the remainder of Owner's property caused by, incident to, or related to the Project and/or the transactions contemplated by this Agreement, value of, damage to and/or costs of repair, replacement and/or relocation of any improvements, turf, landscape, vegetation, or any 0 other structure or facility of any kind vvhbh) the Easement Lands, interference with ()xncr`e activities on the Easement Lands or other property interests of Owner caused by or related to activities on the Fee Lands related tothe Project and/or activities within the scope of the rights granted by the Easement, whether nuocuiog now Vr hereafter, and Owner hereby releases for herself, her heirs, devisees, successors and assigns, the City, i1`m officers, employees, elected officials, agents and contractors from and against any and all c|uirna they may have now or in the future, related to the herein described matters, events and/or damages. 5. The Closing ** called) mhn| occur in and through the offiuc of Capital Title of Texas - 020 West Hickory Street, Denton, Texas, 76201 ("Title Company"), with said Title Company acting as escrow agent, on the date Y/bicb is 90 days after the Effective Date, unless the ()vvucr and the City mutually ngrcc" in writing, to on earlier or |o1cr date ("Closing L)u1m"). In the event the Closing Date, as described above, occurs on n Saturday, Sunday or Denton County holiday, the Closing Date shall hc the next resulting business day. b. The ytix/bzbed Total Monetary Compensation unzouo| mbu| he paid kythe City u1 Closing {o the Owner through the Title Company. Ad valorem taxes relating to the Fee Lands for the calendar year in which Closing shall occur shall be prorated bctvvccu [)n'ncr and City as of the Closing Date. If the actual amount of taxes for the calendar year in which Closing shall occur is not known as of the Closing Date, the proration shall bc based ou the amount of taxes due and payable with respect 0othe Pcc I.mudu for the preceding calendar year, and shall be readjusted in cash as soon as the aoowoot of taxes levied against the Fee Lands for the calendar year in which Closing shall occur is known. The result of such proration is that the Owner shall pay for those taxes attributable to the period of time prior 1nthe Closing Date (including, but not limited to, subsequent osmcmmcncotm for prior years due to change of land usage or ownership occurring prior tothe Closing [>ntc) and City sbu|| pay for those taxes attributable to the period commencing aonf the Closing Date. All other typical, customary and aiuudozd closing costs uuaooim1ed with this transaction xboU be paid specifically by the [ih/" except for Owner's attorney's fees, if any, which shall he paid byOwner. 7. The date oo which this Agreement is executed by the (J��shall hc the "Effective Date" ofthis Agreement. M @.A. In the event Owner shall default in the performance of any covenant mterm provided herein and such default shall hu continuing after ten (l0) days written notice oF default and opportunity to cure, City may ozco:imo any right or n:cncdy uvui|mhlc 10 it by law, contract, equity or o1bcnvisc, including without limitation, the remedy of specific per[buuuoco. B. In the event City aba|| default in the perfbnnonuo nf any covenant urterm provided bcrcin, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, Owner may, as its sole and exclusive remedy, either (i) terminate this Agreement prior to Closing by written notice of such election to City; or (ii) enforce specific performance of this Agreement. 9. THE LAWS OF THE STATE OF TEXAS SHALL CONTROL AND APPLY 0THIS AGREEMENT FOR ALL PURPOSES. THIS AGREEMENT IS PERFORMABLE TNDENTDN COUNTY, TEXAS. VENUE FOR ANY &CIl0N ARISING HEREUNDER SHALL [lB SOLELY IN THE COURTS OF COMPETENT JURISDICTION OF 0ENT0N COUNTY, TEXAS, 10. From and after the Effective Date of this Agreement, through and including the Closing Date, Owner mbu| not (i) convey or lease any interest in the Fee Lands or Bumcmeni Lands; or (ii) enter into any Agreement that will be binding upon the Fee Lands or the Euycrnoot Lands, or upon the Owner with respect to the Fee Lands or the Easement Lands, after the date of Closing. 11. Any notices prescribed or allowed hereunder to (}vvuer or City shall be in writing and shall be delivered by telephonic facsimile, hand delivery or by United 81o1ea Mail, as described herein, and shall be deemed delivered and received upon the oudicr 10 occur of (u) the date provided if hand delivered or delivered by telephonic facsimile; and (b) on the date of deposit o[ in o regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed usfollows: ri • Burch Family Farm, Ltd. Phone Telecopy: Copies to: For Owner: Telecopy: CITY: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349-8951 For City: Larry Collister, Deputy City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 'Telecopy: (940) 382-7923 12. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. Time is of the essence with respect to this Agreement. 13. The representations, warranties, agreements and covenants contained herein shall survive the Closing and shall not merge with the Special Warranty Deeds or Easements. 14. In the event prior to the Closing Date, condemnation or eminent domain proceedings are threatened or initiated by any entity or party other than the City that might result in the taking of any portion of the Fee Lands and/or Easement Lands, City may, at its election, terminate this Agreement at any time prior to Closing. CITY OF DENTON, TEXAS By:4� GEORGE C. CAMPBELL, CITY MANAGER Date: f) 2014 7 .............. ............. - .................. .................. - - - ATTEST: JENNIFER WALTERS, CITY SECRETARY By: Date: 2014 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: Date: 2014 OWNER: BURCH FAMILY FARM, LTD., a Texas limited partnership K t'yo 13c(�e H VAk) I') M4 A) A(, mc-/V71 J-1- &f Its: k, Z�: i I)t- A/ r Date: N, .3 e? 12014 L-1 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of one (1) executed copy of this Agreement. Title Company agrees to comply with, and be bound by, the terms and provisions of this Agreement to perform its duties pursuant to the provisions of this Agreement 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 620 West Hickory Street Denton, Texas 76201 Telephone: (940) 565-1919 Telecopy: (940) 565-1917 LN Printed Name: Title: Contract receipt date: 12014 ATTACHMENT I TO PURCHASE AGREEMENT 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 (Substation Deed) STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That BURCH FAMILY FARM, LTD., a Texas limited partnership (herein called "Grantor"), for and in consideration of the sum oil' 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 in 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 itself, its successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, its 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 orrelated 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 mhos, well bores, vvbstbcr vertical or any deviation from vertical, v/ntcc vvcUm, pit uroum, mcimooic nciivhiee, tanks or 1uuk huUsricu, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or \a1crx| support for any surface facilities or well bores, or any other infrastructure or improvement o[ any kind or type in connection with or related to the reserved oil, gum and other cniocruJa° and/or related Lothe exploration or production of same. As used herein, the term ^ininerub" nbn|l include oil, gas and all associated hydrocarbons and shall exclude (i)n|\ substances oil and muy that any reasonable extraction, mining or other exploration and/or production method, operation, process or procedure would consume, dopisio or destroy the surface of the Property; and (ii) all substances (except oil and gas) vvbicb 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. N/v//u, 597S.YV.2d743 (Tex. 1400). An used herein, the tcon "surface ofthe ` obul include the area from the surface of the earth ioa depth of five hundred feet (500^) below the surface of the earth and all areas above the surface of the earth. Exceptions to conveyance and warranty: [specific exceptions] TO HAVE AND 7D HOLD the Property, together with all and singular the rights and appurtenances thereto in noyvvimc belonging ootn Grantee and {]runtom`e suoocmaoo and assigns forever; and Grantor does hereby bind Grantor and Grantor's auocooaorm and assigns tn WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully oLubniog or to claim the aoruc or any part thereof, by, through or under Grantor, but not ntbcrp/as. Page 2 EXECUTED the day of - 2014. THE STATE OF TEXAS § COUNTY OF 21. BURCH FAMILY FARM LTD., a Texas limited partnership By: Name: Title: ACKNOWLEDGMENT This instrument was acknowledged before me on 2014 by of BURCH FAMILY FARM, LTD., a Texas limited partnership, on behalf of said limited partnership. Upon Filing Return To: The City of Denton-Engineering Attn: Paul Williamson 901 -A Texas Street Denton, Texas 76209 Page 3 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" LEGAL DESCRIPTION BEING e 1.074 mm��ectofland situated in the W. Roark Suney, Abstract No. 1087 and the J. Severe Suwey, Abstract 11G4 DenbznCVu�y.Texas, and being padnfaca|�d222.275 acre tract ofland ' First �Trm' in a Deed to Burch Family Farm, d,, as recorded in Document Number described as the rm� oz Records f Denton Cuu'ty, Texas, and being more particularly 2OO7-11OO43 of the Real Property eco e o // . . described aafollows: COMMENCING at 1/2 inch iron rod found for the Southwest corner ofLot 1, Block Aof Fort Worth Drive Substation Addition, as recorded in Cabinet Y, Page 300 of the Plat Records of Denton County, Texas; THENCE North 88"54'50^ East along the South line of said Lot 1, Block A. fore distance of 231.58 feet to o 5/8 inch iron rod with cap stamped ''TNP^ set for corner at the Southeast corner of said Lot 1, Block A. said point being the POINT 0F BEGINNING for the herein described tract; THENCE North 17°3O'27" East along the East line of said Lot 1. Block A, for a distance nf22G.6B feet toa 112 inch iron rod found for corner at the Northeast corner of said Lot 1, Block A; THENCE North 70'04'07" West along the North line of said Lot 1, Block A, for a distance of 288.06 feet to a 1/2 inch iron rod found for corner atthe Northwest corner ofsaid Lot 1. Block A, said point also being in the Easterly line of U.S. Highway 377 (a variable width right-of-way); THENCE North 43"23'1G" East along the Emehar|y line of said U.S. Highway 377, for e distance of 76.31 feet toa5/8 inch iron rod with cap stamped ^TNP^ set for corner; THENCE South 70°04'07" East departing the Easterly line of said U.B. Highway 377, fora distance of 354.82 feet toe5/8 inch iron rod with cap stamped "TNp" set for corner; THENCE South 17"30'27^ West for o distance of 268.76 feet to a 5/8 inch iron rod with cap stamped ~TNP^ set for corner; THENCE South 88054'50^ West for a distance of 105.51 feet to the POINT OF BEG|NN|NG, and containing 1.O74 acres of land, more orless. Page 1 of 2 c rs 9 a u C C.- C . . . . . ... . ......... . . . ............. -, ' M U) z ✓0 0 �m _12 II A if ITS C) UXI Ail al lit q a, t S. 1 R I N! lost S t 1 at! all I it Noun lit MIV nil "Qj 0 o I HIP 11 I s ull 0 11 i 1 d ih 11 1 Louis. Ogg; all' or, 1 111'� M II if Ail lit q CL it Noun MIV I lit 1 0 s 0 11 i 1 d ih 11 M II lit q CL Noun ATTACHMENT 2 TO PURCHASE AGREEMENT 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 (Pump Station Deed) STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That BURCH FAMILY FARM, LTD., a Texas limited partnership (herein called "Grantor"), for and in consideration of the surn of TEN AND 110 /I00 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 in 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 itself, its successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, its 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 and gas) 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. Exceptions to conveyance and warranty: [specific exceptions] 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, by, through or under Grantor, but not otherwise. Page 2 EXECUTED the THE STATE OF TEXAS COUNTY OF day of 2014. BURCH FAMILY FARM LTD., a Texas limited partnership By: Name: Title: ACKNOWLEDGMENT This instrument was acknowledged before me on , 2014 by of BO-RCHFAMILY FARM, LTD., a Texas limited partnership, on behalf of said limited partnership. Upon Filing Return To: The City of Denton-Engineering Attn: Paul Williamson 901 -A Texas Street Denton, Texas 76209 Page 3 Notary Public, State of Texas My commission expires: _ Property'rax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 LEGAL DESCRIPTION BEING o 0'627 acre tract of land situated in the B.B.B. & C. R.R. Co. Suwey, Abstract No. 196 and the J.W. Withers Survey, Abstract No. 1343, Denton County, Texas, and being part of a called 222.275 acre tract of land described as the First Tract in a Deed to Burch Family Farm, Ltd., as recorded in Document Number 207-110043 of the Real Property Records of Denton County. Texan, and being more particularly described mmfollows: BEGINNING at 112 inch iron rod with cap stamped ^K4cCuUoh^found for corner in the Westerly line of the G C & S.F. Railroad (e variable width right-of-way), said point being the occupied Northeast corner of the above cited 222.275 acre tract, said point also being the occupied Southeast corner of a called 37.87 acre tract of land described in a Deed to Connie M. Altemus, as recorded in Volume 901, Page 777 of the Deed Records of Denton County, Texas; THENCE South 35°21'14"Ema along the Eo�edyline of said 222.275 acre �ac and the VVeab*dyline of said Railroad, foradi�onoeof'7S43S feet too50 inch iron rod whhcap �mmped^TNP^s�� for cumeret the most E—'�dy Northeast corner ofsaid 222.275 acre trou(, said point also being in the West line of F.M. Highway No. 1830 (an 8O'widehght-of-wayalso known aa Country Club Road); THENCE South 00048'32" East along the West line of said F.M. Highway No. 1830. for o distance of 5OOO feet toa5/O inch iron rod v�thcap stamped ^TNP^ set for corner, h v� from co'otamped^Co|emanRPLS4OO1^foundforreferencebemraBouthOO°48'32"Eemtmdistanoeof44O.82 feet; THENCE North 74^41'47^ West departing the West line of said F.M. Highway No. 1830. form distance of 41.64 feet to o 5/8 inch iron rod with cep stumped ^TNP^ set for corner; THENCE North 27014'34" West for a distance of 176.42 feet to m 5/8 inch iron rod with cop stamped "TNP^ set for corner; THENCE North 35°21'14" West for a distance of 651.04 feet to m 5/8 inch iron rod with cup stamped "TNP" set for corner in the North line of said 222.275 acre tract and the South line of said 37.87 acre tract, from which o 1/2 inch iron rod with cap found for an interior corner ofsaid 222.275 acre tract bears North UQ°6G'67" West a distance of8D2.4Qfeet; THENCE South 89"56'57" East along the North line of said 222.275 acre tract and the South line of said 37.87 acre tract, for a distance of 36.81 feet to the POINT OF BEGINNING, and containing 0.627 acres of |and, more or less. CONNIE M. ALTEMUS CONNIE M. ALTEMUS i CALLED 37.87 AC. CALLED 12.48 AC. VOL.901 PG.777 P* VOL.901 PG.774 r x� D.R.D.C.T. �.;.. D R.D.C.T. —. 20' INGRESS /EGRESS ESMT. w -- ':„,cRAUEt ROAD::: iiii:viiiiir ?: �':eci: i. �::',;i.W– -'•• '+;,.. .............. },....... .......; `: I DOC• NO. 2003-137250 '1'R� x VOL. 1913, PG. 747 S 89 °56'57" E POINT OF fia 1/2 C6RF.P,R,D.C.T. 0,4' C' 112 SO. C'M' ®ARB WIRE F -NCE 36.81' ,PP BEGINNING WE D. BARB WIRE FENCE 9 89 °.5857 W 802.49 ' v2 CIRF _ owmwwwmmww�wuou mwmnw P C.M. "MCCULLAH" GAS ( 1l2CIRf _ (5 B9 "57 11'E 839.13" . Deed) 41' VALVE SIPFJI I -CULLAH" `"^• PP 20' RIGHT -OF -WAY AND ESMT. GAS — –.,„„ � � GAS MARKER CROSSTEX DC GATHERING MARKERS "CROSSTEX" CO PART (B) J.V. ( I 20" RIGHT -OF -WAY AND ESMT. ''t, "CROSSFEX" CROSSTEX DC GATHERING t.. \ DOC, NO, 2012 -93849 R.P.R.D,C.T. COMPANY, J.V. 20\ PART (A) �G� ° �' BURGH FAMILY FARM, LTD. DOC, NO, 2012-93849 PP CALLED 1.457 AC. SECOND TR. I I I R.P.R.D,C.T. �� DOC. NO. 2007 - 110043 (� R.P.R.D.C.T a I 'z e j X. ' i APPRO LOCATION OF ...r I I 20'PERMANENI ESMT I CROSSTEX CCNG TRANSMISSION, LTD. LEGEND VOL. 5312, PG, 3937 R.P.R,D.C,T. I I l� PP ♦ ( I , APPROXIMATE . _ . . " _ . . SL . ,.. a !� _, ®. .....J o URVVEYNE c, I O a 0 I I O I > I � I ; o a o \ P 0 a i c CpG •may I co aii � I Q''xat"D fi V- 'fS9 Lu P V «(i I ■ Ip aV 02 0 GQ 0,C.1, J"s 5+O 5�w;fiss .CyT x'»��L7sZv PP PP G PP y> W S !�S P 04 O v o 0.627 ACRE TRACT " SITUATED IN THE N 74 °41'47 "' W "REALT SIGN B.B.B. & C. R.R. CO. SURVEY, ABSTRACT NO. 1196 AND 41.64' 34 PPP VERIZON` rELf vauLr THE J.W. WITHERS SURVEY, ABSTRACT NO. 1343 DENTON COUNTY, TEXAS o u � LL teague nail & perkins w m 1317 fentre place Drive, Suite 320 ,p axes 76205 tnp " °o 440,383.4177 3.4177 W 440,383,8426 fa 4D i1 www.tnpina.eam N TAYA.S. Fkm No. 10011601 1/2 CIRF" SHEET 1 OF 1 TNP NO. DEN14117 - COLEMAN R.PLE. 4 oa1" ATTACHMENT 3 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. INGRESS AND EGRESS EASEMENT THE STATE OF TEXAS, § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Burch Family Farm, Ltd., A Texas limited partnership, (GRANTOR), in consideration of the sum of ONE DOLLAR and NO CENTS ($1.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, (GRANTEE), receipt of which is hereby acknowledged, does by these presents grant, bargain, sell and convey unto the City of Denton, Texas, the free and uninterrupted use, liberty and privilege of the passage in, along, upon and across the following described property, owned by GRANTOR and situated ill Denton County, Texas, situated in the J. Severe Survey, Abstract No. 1164, as described in Exhibit "A" and illustrated in Exhibit "B" attached hereto and made a part hereof. And it is further agreed that the City of Denton, Texas in consideration of the benefits above set out, may remove from the property above described, such fences, buildings and other obstructions as may now be found upon said property. For the purpose of ingress and egress in, along, upon and across said premises, with the right and privilege at all times of the GRANTEE herein, his or its agents, employees, workmen and representatives having ingress, egress, and regress in, along, upon and across said premises or any part thereof. GRANTEE shall have the right to grade, pave and maintain pavement improvements at GRANTEE'S discretion within the above described tract, but is under no obligation to do so. GRANTOR shall have the right to grade, pave and maintain pavement improvements at GRANTOR's discretion within the above described tract but is under no obligation to do so. GRANTOR shall not be liable for damages to pavement improvements installed at GRANTEE's discretion. GRANTEE shall not be liable for damages to pavement improvements installed at GRANTOR's discretion. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premises above described. Witness its hand, this _ day of 2014• GRANTOR: BURCf-I FAMILY FARM, LTD. a Texas limited partnership ME Its: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF § This instrument is acknowledged before me, on this - day of , 2014 by by on behalf of Burch Family Farm, Ltd., a Texas limited partnership. Notary Public, in and for the State of My Commission Expires: _ N Accepted this - day of 2014 for the City of Denton, Texas (Resolution No. 91-073). M Paul Williamson Real Estate & Capital Support Manager City of Denton Real Estate and Capital Support 901 -A Texas Street, Second Floor Denton, Texas 76209 LEGAL DESCRIPTION Burch Family Farm Ltd. Tract BEING 0\476 acre tract of land situated in the J. Severe Surway, Abstract Nu 1164. Denton County. Texas, and being part ofa called 222.275 acre tract of hand described as the First Tract in o Deed to Burch Family Farm, Ltd., as recorded in Document Number 2007-110043 of the Real Property Records of Denton County, Texas, and being more particularly described osfollows: BEGINNING at a 1/2 inch iron rod found for the Southwest corner of Lot 1, Block A of Fort Worth Drive Substation Addition, as recorded in Cabinet Y, Page 300 of the Plat Records of Denton County, Texas; THENCE North 88054'50" East along the South line of said Lot 1, Block A. passing a 5/8 inch iron rod with cap stamped ~TNP^ set for the Southeast corner of said Lot 1, Block A at a distance of 231.58 feet, and continuing for total distance mf337.Og feet b» a 5/8 inch iron rod with cap stamped`TNP" set for corner; THENCE South 17°3027"West for a distance cfG3.3O feet hza5/8 inch iron rod with cap stamped '7NP^' met for corner; THENCE South 88054'50" West along a line being GO feet South of and parallel to the South line of said Lot 1, Block A, for a distance of321.52 feet toe 5/8 inch iron rod with cap stamped ''TNP'' set for comer; THENCE North 2G"35'12" West for a distance of8G.48 feet boa5/Q inch iron rod with cap stamped ^TNP° set for corner; THENCE North 88^54'5O'' East for e distance of3324 feet tm the POINT OF BEGINNING, and containing O,47G acres uf land, more orless. CL 0 >- 04 C-4 F- < 0 V) LL LJ w 6 1 Z W < w C) D co V15, co 17 ui IN I z 0) 04 po= C) a 0- Lu .......... C.0 w z to GAL' < I to 11 -1 0 cn 0 00 0 z CM0 co z Z — ;ft I C-) ' 4 C) 00 fk < to 3: LO w F- 5�- ca ca < w 0< X 0 0 1 C� C) ci w 0 U) a- Oz C'4 A; Lcul cj Q S U 0 wM D ui m w z z :3 0. z z z Z Z W µ_� z w z 1 0 0 C-) ' 4 C) 00 fk < to 3: LO w F- 5�- ca ca < w 0< X (A c je .x gin c NO= 4(#Illllto�� 0 0 1 C� C) ci F- o C C14 1.- 0 U) a- Oz C'4 A; Lcul cj Q z < 6 U 0 wM D m (A c je .x gin c NO= 4(#Illllto�� 0 1 W: 0 wM (A c je .x gin c NO= 4(#Illllto�� I n re) PO 0 0 rK 0 0 .N 04 j 0 0 4) -:, —" c c 0 0 ID F- C6 0 0 --a as > 0 0 Q) 0 1 W: 0 I n re) PO 0 0 rK 0 0 .N 04 j 0 0 4) -:, —" c c 0 0 ID F- C6 0 0 --a as > 0 0 Q) ATTACHMENT 4 TO PURCHASE AGREEMENT 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. ELECTRIC UTILITY AND COMMUNICATION EASEMENT THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT, Burch Family Farm, Ltd., a Texas limited partnership (the "GRANTOR"), for and in consideration of Ten Dollars ($10,00), and other good and valuable consideration, to GRANTOR in hand paid by the CITY OF DENTON, aTexas home rule municipal corporation, which is located in Denton County, Texas, and whose mailing address is 215 E. McKinney, Denton, Texas 76201 ("GRANTEE") has granted, sold, and conveyed and by these presents does grant, sell and convey unto the GRANTEE perpetual, non-exclusive and unobstructed easements and rights of way (collectively, the "EASEMENT") for the purposes of erecting, operating, maintaining and servicing thereon one or more underground and/or above ground electric distribution power and/or communication lines, each consisting of a variable number of wires and cables, along with all necessary, convenient or desirable appurtenances, attachments and supporting structures, including without limitation, foundations, guy wires and guy anchorages, and structural components (collectively referred to herein as the "FACILITIES"), in, on, over, under and across that certain real property situated in the W. Roark Survey, Abstract No. 1087, Denton County, Texas, being approximately 1.802 acres and being more particularly described in Exhibit "A", and depicted in Exhibit "B", respectively, each attached hereto and incorporated into and made a part of this document by reference (the "EASEMENT PROPERTY"). GRANTEE shall have the right of ingress, egress and regress in, on, over, under and across the EASEMENT PROPERTY for the purposes of, and right to, construct, maintain, operate, improve, reconstruct, increase or reduce the size and capacity, repair, relocate, inspect, patrol, maintain, remove or replace such FACILITIES within the EASEMENT PROPERTY as GRANTEE may from time to time find necessary, convenient or desirable, along with all rights necessary or convenient for full use and enjoyment of the above grant, including access over, across and upon the EASEMENT PROPERTY. GRANTEE shall have the right to trim or remove trees or shrubbery within said EASEMENT PROPERTY, to the extent, in the sole judgment of GRANTEE, necessary or desirable to prevent possible interference with the efficiency, safety and/or convenient operation of the FACILITIES or to remove possible efficiency, safety or operational hazards thereto. GRANTOR shall not make changes in grade, elevation or contour of the EASEMENT PROPERTY or impound water within, over and/or across the EASEMENT PROPERTY without prior written consent of GRANTEE. GRANTEE, at GRANTEE'S sole cost and expense, shall have the right to install gates in existing fences within such EASEMENT PROPERTY. GRANTOR, for itself, its successors and assigns, subject to the terms herein, expressly reserves the right to occupy and use the EASEMENT PROPERTY for all other purposes that will not interfere with the GRANTEE'S fall enjoyment of the EASEMENT and/or the exercise of GRANTEE's rights hereunder. GRANTOR acknowledges the EASEMENT granted herein is non-exclusive, so as to exclude all other utility providers or any other party's use of the EASEMENT PROPERTY; provided, however, the EASEMENT is nonexclusive as to GRANTOR'S right to use the EASEMENT PROPERTY in accordance with the terms hereof. Upon written consent of GRANTEE, such consent to be exercised at the sole discretion of GRANTEE, other utility providers may be permitted by GRANTEE under separate grant from GRANTOR to construct, operate, maintain, repair, replace and remove their respective utilities in, on, over, under, and across the EASEMENT PROPERTY perpendicularly or as otherwise may be permitted by GRANTEE in writing. Nothing herein shall be construed to require GRANTEE to allow such use or grant, and such use or grant shall be at the sole and absolute discretion of GRANTEE. GRANTOR represents and warrants to GRANTEE that as of the execution date hereof, no buildings, structures, signs, obstructions or other facilities or improvements of any kind N ("UNPERMITTED STRUCTURES") exist on the EASEMENT PROPERTY. GRANTOR shall not construct, and GRANTEE shall have the right to prevent the construction of, UNPERMITTED STRUCTURES on the EASEMENT PROPERTY, and if any UNPERMITTED STRUCTURES are hereafter constructed or permitted by GRANTOR to exist within the EASEMENT PROPERTY without prior written consent of GRANTEE, then GRANTEE shall have the right to remove the same and GRANTOR agrees to pay to GRANTEE the reasonable actual costs of such removal. The EASEMENT, and all covenants and provisions hereof, shall constitute covenants running with the land and shall bind and inure to the benefit of GRANTOR and GRANTEE, and their respective successors, and assigns. This EASEMENT is subject to the terms of that certain Purchase Agreement, dated 2014, by and between GRANTOR and GRANTEE. TO HAVE AND TO HOLD the above EASEMENT unto GRANTEE, its successors and assigns, forever, and GRANTOR hereby warrants and forever agrees to defend the above described EASEMENT unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part hereof, by, through, or under GRANTOR, and not otherwise. WITNESS THE EXECUTION HEREOF as the _ day of 12014. GRANTOR: BURCH FAMILY FARM, LTD. a Texas limited partnership im Its: 3 COUNTY OF ACKNOWLEDGMENT 2 2 This instrument is acknowledged before me, on this by Ltd., a Texas limited partnership. day of 2014 by on behalf of Burch Family Farm, Notary Public, in and for the State of My Commission Expires: _ AFTER RECORDING RETURN TO: City of Denton — Engineering Department Real Estate and Capital Support 901 -A Texas Street, 2" d Floor Denton, Texas 76209 Attn: Paul Williamson M EXHIBIT od// BEING e 1,802 acre tract of land situated in the W. Roark Survey, Abstract No. 1087. Denton County, Texas, and being pm�ofmc��d222275 acre �motof land described as�eFks Tract �a Deed to Bu�h'Rsmi�Farm, �d..asrecorded i-DooumentNumber2QO7-11OU43cfthoRea|PropmdyRocmrdsof Denton County, Texas, and being more particularly described aofollows: COMMENCING at a 1/2 inch iron rod found for the Southwest corner of Lot 1, Block A of Fort Worth Drive Substation Addition, as recorded in Cabinet Y, Page 300 of the Plat Records of Denton Coun1y, Texas; THENCE North 88"54'50^ East along the South line of said Lot 1, Block A. passing a 6/8 inch iron rod with cap stamped "TNP" set for the Southeast corner of said Lot 1, Block A at a distance of 231.58 feet, and continuing for a total distance of 337.08 feet to a 5/8 inch iron rod with cap stamped "TNP' set for corner; THENCE North 17,30'27" East along e line being 100 feet East cJand parallel to the East line of said Lot 1. Block A. for a distance of81J3 feet to the POINT OF BEGINNING for the herein described tract; THENCE North 17"30'27" East continuing along said line being 100 feat East of and parallel to the East line cf said Lot 1. Block A. for a distance mf3G.8Etoa point for corner; THENCE North 80"17'42" East for a distance of1322.87 feet tma point for corner adanangle point; THENCE North 73"OQ'14" East for a distance ofg1U.2D feet toa point for corner atan angle point; THENCE South 8g°28'11" East for a distance of 4.61 feet to a point for corner in the most Northerly East line of the above cited 22227G �oma tract, said point o|mo being in the West line of called 37.87 acre � ' tract described in a Deed to Connie W. A{temua, as recorded inVo}ume 901 . Page 777 of the Deed Records of Denton County, Texas; THENCE South 00°44'19" East along the most Northerly � East line of said 222.275 acre actand the West Uneofa~ »`'3787eonatnact.fora distance of35.O1 feet toa1/2^ square pipe found for corner adan ell corner of said �~22'Z75 acre tract and the Southwest corner mf said 37.87 acre tract; THENCE South 73000'14" West for a distance of 909.80 feet to a point for corner at an angle point; THENCE South 89017'42" West for a distance of 1329,50 feet to the POINT OF BEGINN|NG, and containing 1.8Q2 acres of land, more orless. Page 1of4 CL rjlgl���� 0 0 t 0 F— C6 < 0 w U- z K) z 0- � C) Ld Lj U) L6 U. Oct z w U- co 't w 1191 I X9 AV, LEI z z C< W-H rrn co F— C6 < 0 w U- z K) z 0- � C) Ld Lj I z F— LLi 'F- >U, WA z w U- co 't w z C14 �t It N CC) z mom (I-Irk z z 0 z !Ipg X9 AV, LEI z z C< W-H z 02 W, 's MR, 67 uj can S a. -4. . 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Uo- "2� R -Lj 0- ro ID ry 00 cr.......... 0 Ln 0 t' -40 C 133 HS 33S > 0 0 3NI*IHO-LVV4 � 0 U- U-1 ATTACHMENT 5 TO PURCHASE AGREEMENT TEMPORARY ON AND ACCESS EASEMENT THE STATE OF TEXAS, KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON 8 THAT Burch Family Farm, Ltd., uIcxua limited of Denton County, Texas, io consideration of the sum of Ten Dollars and Np Cents ($iO.O[) and other good and valuable consideration in hand paid by the City of Denton, 1[oxua, (Grantee), receipt of vvhiob is hereby acknowledged, does by dbeoc presents grunt, bargain, mcU and convey unto the City of Denton, Tcxno^ the free and uninterrupted use, liberty and privilege of the passage along, upon and across the following described property, owned by Grantor and situated in Denton County, 7uxne` situated in the W. Roark Survey, Abstract No. 1087, as described in Exhibit ^"/\" and i|}ueb-o1ed in Exhibit `^y}" attached hereto and made a part hereof. SEE ATTACHED EXHIBITS «A�'AN0>'B' TEMPORARY CONSTRUCTION EASEMENT And bis further agreed that the City of Denton, Texas in consideration nfthe benefits above set out, may remove from the property above described, such fences, buildings and other obstructions as may now be found upon said property. For the purpose of access and construction activities in, along, upon and across said premises. The City o[ Denton, its agents, employees, workmen and representative shall have ingress, egress, and rcgccmm in, along upon and across said premises for the purpose of access and construction activities or any part thereof. The terms of this grant shall expire | year from the date of execution. TD HAVE AND TOHOLD unto the said City of Denton, Texas oeaforesaid for the purposes aforesaid the premises above described. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premises above described. Witness our hands, this the day of 2014. GRANTORS 0 Its: Burch Family Farm, Ltd. aTexas limited partnership ACKNOWLEDGMENTS STATE OF TEXAS § COUNTY OF § This instrument is acknowledged before me; on this 2014 by I — on behalf of Burch Family Farm, Ltd., a Texas limited partnership Accepted this . day of (Resolution No. 91-073). LN Notary Public in and for State of Texas day of 2014 for the City of Denton, Texas Paul Williamson Real Estate and Capital Support Manager EXHIBIT "A It LEGAL DESCRIPTIOA TEMPORARY CONSTRUCTION EASEMENT Burch Family Farm, Ltd, Tract BEING a 1.793 acre tract of land situated in the W. Roark Survey, Abstract No, 1087, Denton County, Texas, and being part of a called 222,275 acre tract of land described as the First Tract in a Deed to Burch Family Farm, Ltd., as recorded in Document Number 2007-110043 of the Real Property Records of Denton County, Texas, and being more particularly described as follows: rt .AM*i3,TW*' found for the Southwest corner of Lot 1, Block A of Fort Wo h Drive Substation Addition, as recorded in Cabinet Y, Page 300 of the Plat Records of Denton Mownly—,--1 exas; THENCE North 88054'50" East along the South line of said Lot 1, Block A, passing a 5/8 inch iron rod with cap stamped "TNP" set for the Southeast corner of said Lot 1, Block A at a distance of 231.58 feet, and continuing for a total distance of 337.08 feet to a 5/8 inch iron rod with cap stamped "TNP" set for THENCE North 17030'27" East along a line being 100 feet East of and parallel to the East tine of said Lol, 1, Block A, for a distance of 118.64 feet to the POINT OF BEGINNING for the herein described tract;; THENCE North 17030'27" East for a distance of 36.85 feet to a point for corner; THENCE North 89"17'4Z' East for a distance oy1306.45feet too point for corner atenangle point THENCE North 73000'14" East for a distance of 910.59 feet to a point for corner at an angle point; THENCE South 89°28`11° East for a distance of 9.22 feet hza point for corner in the most Northerly East line of the above cited 22227G a�no ��ot. said point �|a� being in the West line of mai|md 37.87 amna � tract mf land described in o Deed to Connie M. A|hemus' aerecp rd d e in Volume 901, Page 777 of the Deed Records wf Denton County, Texas; THENCE South 00044`19'^ East along the most Northerly East line of said 222.275 acre tract and the West line of said 37,87 acre tract, or a distance of 35.01 feet to a point for uorner, from which m 1/2^ U square pipe found atane corner 'f said Z22,275 acre tract and the Southwest corner of said 37.87acre tract bears South O0°44'1Q" East a distance qf35.O1 feet; THENCE North 89026'11 " West departing the most Northerly East line of said 222.275 acre tract and the West line of said 37,87 acre tract, for a distance of 4.61 feet to a point for corner at an angle poift, THENCE South 73000'14" West for a distance of 910.20 feet to a point for corner at an angle point; THENCE South 80"17'42" West for a distance of 1322,97 feet to the POINT OF BEG|NN|NG, and containing 1.793 acres of land, more orless. 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Cm Zwo §2 . o z Cq — 0 co I U0 n CC o o 0>' cc) I C6 n 0 > o a 02 I U0 n CC o o 0>' cc) I C6 n 0 > o a City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 14 -0611, Version: 1 Agenda Information Sheet DEPARTMENT: Legal Department CM/ ACM: Anita Burgess, City Attorney Date: October 7, 2014 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the approval of a professional legal services agreement by and between Terry Morgan & Associates, P.C. and the City of Denton, Texas; providing for the expenditure of funds; and providing an effective date. BACKGROUND The City has retained Terry Morgan & Associates, P.C. to assist in gas well regulation and litigation pursuant to a letter agreement of October 30, 2013 in the amount of $300,000. The agreement now before the Council modifies the scope of the representation and authorizes expenditures NTE $200,000. OPTIONS Approve, deny or postpone the action RECOMMENDATION Staff recommends approval of this Ordinance. EXHIBITS Exhibit 1- Ordinance Exhibit 2- Letter Agreement Respectfully submitted: Anita Burgess City Attorney Prepared by: Toni Reedy Legal Secretary City of Denton Page 1 of 1 Printed on 10/2/2014 s:Alegal \our documents \ordinances \IMmorgan psa -gas well matters -2.doc ORDINANCE NO. 2014- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE APPROVAL OF A PROFESSIONAL LEGAL SERVICES AGREEMENT BY AND BETWEEN TERRY MORGAN & ASSOCIATES, P.C. AND THE CITY OF DENTON, TEXAS; PROVIDING FOR THE EXPENDITURE OF FUNDS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems that it is in the public interest to continue to engage the law firm of Terry Morgan & Associates, P.C., Dallas, Texas to provide professional legal services for the City of Denton, Texas that are related to the gas well matters in the City; and WHEREAS, City staff has reported to the City Council that there is a substantial need for the above - referenced professional legal services and that the City has been working with Terry Morgan and Associates pursuant to the contracting authority of the City Manager; further, limited City staff cannot adequately perform the specialized services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a City may select a provider of professional services on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The preamble to this ordinance is incorporated herewith by reference as a part of this ordinance. SECTION 2. The City Manager is hereby authorized by the City Council to execute the Letter Agreement between the City and Terry Morgan & Associates, P.C., Dallas, Texas, dated September 23, 2014 and attached hereto as Exhibit "A" and incorporated herein, for professional legal services for a total fee of not to exceed $200,000. SECTION 3. The award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Terry Morgan & Associates, P.C. and the demonstrated ability of Terry Morgan & Associates, P.C. to perform the services needed by the City for a fair and reasonable price. SECTION 4. The expenditure of funds as provided in the attached Agreement is hereby authorized. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. sllegal\ our documents \ordinances \14 \morgan psa -gas well matters -2.doc PASSED AND APPROVED this the day of , 2014. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 2 CHRIS WATTS, MAYOR Exhibit A TERRY D. MORGAN chi ASSOCIATES, P.C. Attorneys and Counselors 8080 N. CENTRAL. EXPRESSWAY. SMFE 1300 DALLAS, TEXAS 75206 TraaY D. MORGAN 01' Coljw.1. MORRIS, SCHOASCH bra STAPLETON, P.C. UPDATED LETTER AGREEMENT September 23, 2014 VIA EMAIL Ms. Anita Burgess City Attorney City of Denton, TX 215 E. McKinley Denton, TX 76201 Re: Scope of Legal Services Eagleridge Litigation and Negotiations Gas Well Amendments Dear Anita: (214) 740 -9944 PAX: (214) 888 -3327 1; -Mail: 1molgan A)1T)SStxlaw.COm This letter confirms the employment of Terry Morgan & Associates ( "TMA ") for legal services to assist the City of Denton in prosecuting and defending litigation with Eagleridge Energy, LLC and Eagleridge Operating, LLC regarding compliance with the City's gas well regulations. The scope of legal services for this task may generally be described as providing legal assistance to the City Attorney in evaluating such claims, filing litigation in behalf of the City, formulating legal defense strategies, conducting legal research and discovery, trying the case(s), preparing potential settlement terms and engaging in settlement negotiations, and advising the City Manager and the City Council concerning such litigation. The scope of services also includes proposed gas well amendments, drafting of gas well amendments, and potential legislation. In connection with these tasks, TMA will attend executive sessions of the City Council, as directed by the City Attorney, for purposes of briefing the Council on the status of the claims. TMA will perform such services as directed by the City Attorney. The City will compensate TMA for time and expenses, including any services already provided prior to the date of this letter agreement after authorization by the City Council on October 15, 2013, not to exceed the amount of $200,000 unless by express letter amendment. TMA has retained the services of James Morris, Goins Underkofler, as co- counsel, whose employment for this task is Ms. Anita Burgess October 30, 2013 Page 2 likewise confirmed. Legal services will be billed by Terry D. Morgan at the rate of $300 per hour and by James Morris at the rate of $275 per hour. TMA charges for expenses as follows: for in -office photocopying, $.25 per page; for telecopying, $1.00 for the first page of a transmission, and $.25 per subsequent page; for postage, cost. We will bill the City at cost for out -of- pocket expenses, but will not incur any unusual expense without the City's prior approval. Invoices will be sent to the City on a monthly basis, with payment to be rendered within thirty (30) days of receipt. If you agree with the description and terms of the legal services set forth, please have a copy of this letter acknowledged and return it to me. If you have questions or changes, please do not hesitate to contact me. I look forward to continuing work with the City in this matter. If you have any questions or comments, please contact our office. TDM /jc A)74 S 22 C'pdeted I,Pt7P+ Agrcc �nrrrt CITY OF DENTON, TEXAS ACKNOWLEDGMENT By: George C. Campbell Denton City Manager Sincerely yours, "ferry 1). `flot'gan for Terry Morgan Associates, P.C. APPROVF,D AS TO LEGAL FORM Anita Burgess Denton City Attorney Exhibit A TERRY R MoRGAN & ASSOCIATES, P.C. Attorneys and Counselors 8080 N. CFN RAL. EXPRESSWAY. SUrrc 1300 DALLAS, TEXAS 75206 TERRY D, MORGAN Or CouNSt.t, NIORRIS, SMORSCH & STAPI.FTON, P.C. UPDATED LETTER AGREEMENT September 23, 2014 VIA EMAIL Ms. Anita Burgess City Attorney City of Denton, TX 215 E. McKinney Denton, TX 76201 Re; Scope of Legal Services Eagleridge Litigation and Negotiations Gas Well Amendments Dear Anita; (214) 740 -9944 FAX: (214) 888-3327 F. -Mail: tenor an�imsstxlaw.com This letter confirms the employment of Terry Morgan & Associates ( "TMA ") for legal services to assist the City of Denton in prosecuting and defending litigation with Eagleridge Energy, LLC and Eagleridge Operating, LLC regarding compliance with the City's gas well regulations. The scope of legal services for this task may generally be described as providing legal assistance to the City Attorney in evaluating such claims, filing litigation in behalf of the City, formulating legal defense strategies, conducting legal research and discovery, trying the case(s), preparing potential settlement terms and engaging in settlement negotiations, and advising the City Manager and the City Council concerning such litigation. The scope of services also includes proposed gas well amendments, drafting of gas well amendments, and potential legislation. In connection with these tasks, TMA will attend executive sessions of the City Council, as directed by the City Attorney, for purposes of briefing the Council on the status of the claims. TMA will perform such services as directed by the City Attorney. The City will compensate TMA for time and expenses, including any services already provided prior to the date of this letter agreement after authorization by the City Council on October 15, 2013, not to exceed the amount of $200,000 unless by express letter amendment. TMA has retained the services of James Morris, Goins Underkofler, as co- counsel, whose employment for this task is Ms. Anita Burgess October 30, 2013 Page 2 likewise confirmed. Legal services will be billed by Terry D. Morgan at the rate of $300 per hour and by James Morris at the rate of $27.5 per hour. TMA charges for expenses as follows: for in- office photocopying, $.25 per page; for telecopying, $1.00 for the first page of a transmission, and $.25 per subsequent page; for postage, cost. We will bill the City at cost for out -of- pocket expenses, but will not incur any unusual expense without the City's prior approval. Invoices will be sent to the City on a monthly basis, with payment to be rendered within thirty (30) days of receipt. If you agree with the description and terms of the legal services set forth, please have a copy of this letter acknowledged and return it to me. If you have questions or changes, please do not hesitate to contact me. I look forward to continuing work with the City in this matter. If you have any questions or comments, please contact our office. TDMljc 2,014 9 22 C'pdatOd f,cete* Agreer W CITY OF DENTON, TEXAS ACKNOWLEDGMENT By: George C. Campbell Denton City Manager Sincerely yours, r -a I'crry 1). 11 organ for Terry Mor an )Ass ociates P.C. APPROVED AS TO LEGAL FORM By: I Anita Burgess Denton City Attorney City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 14 -0599, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Bryan Langley Date: October 7, 2014 SUBJECT Consider nominations /appointments to the City's Boards and Commissions: Health & Building Standards Commission; Human Services Advisory Committee; Library Board; Parks, Recreation & Beautification Board; Public Art Committee; and Traffic Safety Commission. BACKGROUND Attached are the vacancies for Boards and Commissions that require nominations. Nominations could be made and voted on at this meeting should the Council desire. Approval would be contingent on completion of the confirmation process. If you require any further information, please let me know. Respectfully submitted: Jennifer Walters City Secretary Exhibits Exhibit 1 - Nominations Sheet City of Denton Page 1 of 1 Printed on 10/2/2014 BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Health & Building Standards Commission Alternate Alternate Human Services Advisory Committee All All Library Board Engelbrecht Parks, Recreation & Beautification Board Ryan Billy Qualls Public Art Committee Ryan Joseph Holland III Traffic Safety Commission Ryan Johnson Cameron Cox R - Reappointment N - New Nomination